TO: Mayor and Members of City Council
THRU: Zoning Commission
FROM: Demetrios Moutos - Planner I
DATE: January 9, 2024
RE:
Title
A23-50 Order of Approval - Findings of Fact: Variance to reduce minimum rear yard setback, located at 1840 Ashton Road (REID 0416411779000), and being the property of Migdal Perez.
end
COUNCIL DISTRICT(S):
Council District(s)
5 - Lynne Bissette Greene
b
Relationship To Strategic Plan:
Strategic Operating Plan FY 2022
Goals 2027
Goal 4: Desirable Place to Live, Work and Recreate
Objective 4.5 - Ensure a place for people to live in great neighborhoods.
Executive Summary:
The applicant is requesting a variance to reduce the minimum rear yard setback in the Single Family Residential 10 zoning district (SF-10) for a room addition that was built and connected to the existing building.
On December 12, 2023, the Zoning Commission held an Evidentiary Hearing regarding this case. After receiving all evidence and testimony, the Commission voted 4-1 to approve the Variance application.
30.2.C.14 Variance:
The purpose of a variance is to allow certain deviations from the dimensional standards of this Ordinance (such as height, yard setback, lot coverage, or similar numeric standards) when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner's control (such as exceptional topographical conditions, narrowness, shallowness, or the shape of a specific parcel of land), the literal application of the standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest.
Variances are to be sparingly exercised and only in rare instances or under exceptional circumstances to relieve undue and unique hardships to the landowner. No change in permitted uses or applicable conditions of approval may be authorized by variance.
Background:
Owner: Migdal Perez
Applicant: Migdal Perez
Requested Action: Reduce minimum rear yard setback
Zoning District: Single Family Residential 10 (SF-10)
Property Address: 1840 Ashton Road
Size: .27 acres ±
Existing Land Use: Single Family Dwelling
Surrounding Zoning and Land Uses
• North: SF-10 - Single Family Dwelling
• South: SF-10 - Single Family Dwelling
• East: SF-10 - Single Family Dwelling
• West: SF-10 - Single Family Dwelling
Letters Mailed: 43
Issues/Analysis:
The house on the subject property was constructed in 1964, according to Cumberland County Tax records. There exists a 20-foot utility easement along the back of the property, according to the site survey that was conducted by Michael J. Adams of M.A.P.S. Surveying, Inc., and provided by the applicant. The Unified Development Ordinance outlines various standards regarding setbacks. The UDO requires that residential structures within the SF-10 zoning district must meet a minimum rear yard setback of 35 feet.
The applicant has requested a variance from 1 standard of the UDO. The requested change is as follows:
• Reduction in the rear yard setback for the principle structure from 35 feet to 9.3 feet.
The owner has requested this variance in order to bring the structure into compliance with the ordinance and obtain the proper after-the-fact residential building permit.
Insufficient Justification for Variance
The following does not constitute grounds for a Variance:
1. The siting of other nonconforming or conforming uses of land or structures in the same or other districts;
2. The request for a particular use expressly, or by inference, prohibited in the district; or
3. Economic hardship or the fact that property may be utilized more profitably with a Variance.
Subsequent Development
The applicant is requesting to reduce the setback in order to obtain the proper after-the-fact residential building permit. There is no intended development or construction known to be associated with this variance request.
The following findings are based on the responses submitted in the application by the applicant and the best available information about the proposal without the benefit of testimony provided at the evidentiary hearing.
Findings of Fact Statements as reviewed by the Planning Staff:
1. There is sufficient evidence that the strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
The applicant states “I was unaware I had to obtain approval to connect my house to an existing building in the back yard, I built an added space which would create a physical and financial hardship for my family if the property had to be demolished.”
2. There is sufficient evidence that any practical difficulties or unnecessary hardships result from unique circumstances related to the land, and are not the result of the actions of the landowner as shown by the following evidence:
The applicant states “This is a residential area and the back of the property cannot be seen by surrounding houses. The structure at the back of the property line was pre-existing when I purchased the home.”
3. There is sufficient evidence that the Variance is the minimum action that will make possible a reasonable use of land or structures as shown by the following evidence:
The applicant states “The added space to the home will add square footage to the home which will increase the tax value.”
4. There is sufficient evidence that the Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
The applicant states “The planning department reviewed the plans and structure and stated a variance application was required.”
5. There is sufficient evidence that in the granting of the Variance, the public safety and welfare has been assured and substantial justice has been done as shown by the following evidence:
The applicant states “Issuing a variance will not cause any safety concerns as it is my personal property.”
Budget Impact:
There is no immediate budgetary impact.
Options:
1. Approve Findings as submitted by staff.
2. Approve Findings with specific changes.
Recommended Action:
Staff recommends option 1 above.
Attachments:
1. Order of Approval - Findings of Fact
2. Application
3. Aerial Notification Map
4. Zoning Map
5. Land Use Map
6. Subject Property Photos
7. Surrounding Property Photos
8. Site Survey