LEE COUNTY, FLORIDA DEPARTMENT OF COMMUNITY DEVELOPMENT ZONING DIVISION STAFF REPORT

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1 LEE COUNTY, FLORIDA DEPARTMENT OF COMMUNITY DEVELOPMENT ZONING DIVISION STAFF REPORT TYPE OF CASE: Variance CASE NUMBER: VAR HEARING EXAMINER DATE: July 14, 2010 I. APPLICATION SUMMARY: A. Applicant: Corinne J. Batista / Whitewater Deck Variance B. Request: Variances in the TFC-2 zoning district from LDC Section that require a minimum 20 foot rear yard setback and a minimum 7.5 foot side setback to allow a minimum 13 foot rear yard setback for two proposed open decks and to legitimize a minimum 7 foot side yard setback to the existing duplex. C. Location: The subject property is located at 17307/17309 Whitewater Court, Iona McGregor Planning Community, Lee County, FL. (District # 1) D. Future Land Use Plan Designation: Central Urban Current Zoning of Subject Property: Residential Two Family Conservation (TFC-2) Current Use of Subject Property: Duplex Road Classification: Local Road E. Surrounding Land Use: Existing Zoning & Land Use North: Retention pond, then duplexes zoned TFC-2 Future Land Use Central Urban East: Duplexes zoned TFC-2 Central Urban South: Whitewater Court, then duplexes zoned TFC-2 West: Duplexes zoned TFC-2 Central Urban Central Urban II. RECOMMENDATION: Staff recommends DENIAL of the applicant's request for a variance to allow a minimum 13 foot rear yard setback for two proposed open decks. However, in the event the Hearing Examiner approves the variance request, Staff has provided a proposed condition included as Attachment B. Staff recommends APPROVAL of the applicant's request for variance to legitimize a minimum 7 foot side yard setback to existing stairs on the east side of the duplex, with the following conditions: 1. The variance is limited to a minimum 7 foot side yard setback to existing stairs on U:\201006\VAR \0\VAR WHITEWATER DECK VARIANCE.WPD Page 1 of 7

2 the east side of the duplex and in substantial compliance with the Site Plan attached hereto as attachment C. 2. If the duplex is ever voluntarily removed by the property owner, or is otherwise totally destroyed, then the variance will become null and void and any new structures must meet the applicable provisions of the Lee County Land Development Code (LDC). Findings & Conclusions Based upon an analysis of the application and the standards for approval of a variance in accordance with the LDC Section (b)(3), staff makes the following findings and conclusions for the variance from LDC Section to allow a minimum 13 foot rear yard setback for two proposed open decks: a) Pursuant to LDC Section (b)(3)a, there are no exceptional or extraordinary conditions or circumstances inherent to the property in question. The property is approximately 75 feet wide and 100 feet deep with an area of 7,500 square feet. The property complies with the minimum lot area and dimensions for the TFC-2 zoning district. Decks could be located on the subject property without the need for a variance; however, they could only have a depth of 9 feet. b) Pursuant to LDC Section (b)(3)b, the exceptional or extraordinary conditions or circumstances are the result of actions of the applicant taken subsequent to the adoption of the ordinance. The applicant acquired the subject property and constructed the existing duplex on the property in The depth of the duplex limits the area and depth of the proposed decks on the subject property. c) Pursuant to LDC Section (b)(3)c, the variance is not the minimum variance that will relieve the applicant of an unreasonable burden caused by the application of the regulation in question to her property. The applicant is requesting two decks each with a depth of 16 feet and a 13 foot rear yard setback. The applicant could build a deck with a depth less than 16 feet which would have a greater rear yard setback than 13 feet. d) Pursuant to LDC Section (b)(3)d, the granting of the variances will not be injurious to the neighborhood or otherwise detrimental to the public welfare. The property most affected by the proposed decks is adjacent property to the east. Decks are residential accessory structures and are anticipated in residential neighborhoods. The owner of the adjacent property claims that the decks will not block their view or infringe their backyard and that they welcome any improvement to the neighborhood and have provided a letter stating such which is attached hereto as Attachment D. e) Pursuant to LDC Section (b)(3)e, the condition or situation of the specific piece of property, or the intended use of the property, for which the variance is sought is not of a general or recurrent nature so as to make it more reasonable and practical to amend the ordinance. The requested variance is specific to the subject property and is not of a general or recurrent nature. It is not reasonable or practical U:\201006\VAR \0\VAR WHITEWATER DECK VARIANCE.WPD Page 2 of 7

3 to amend the ordinance. Based upon an analysis of the application and the standards for approval of a variance in accordance with the LDC Section (b)(3), staff makes the following findings and conclusions for the variance from LDC Section to legitimize a minimum 7 foot side yard setback to existing stairs on the east side of the duplex: a) Pursuant to LDC Section (b)(3)a, there are exceptional or extraordinary conditions or circumstances inherent to the property in question. The property was developed with a duplex in 1998 under residential building permit number RES and received a certificate of occupancy in The applicant cannot acquire additional property to comply with the minimum required 7.5 foot side setback and it is unreasonable to require the applicant to alter the existing duplex to comply with the minimum required setback when a certificate of occupancy was issued. b) Pursuant to LDC Section (b)(3)b, the exceptional or extraordinary conditions or circumstances are not the result of actions of the applicant taken subsequent to the adoption of the ordinance. The duplex was constructed in 1998 under residential building permit number RES The duplex received its certificate of occupancy in 1999 regardless of it not complying with the 7.5 foot minimum side yard setback on the east side of the duplex. The building permit approved an 8 foot side yard setback; however, there was an error at time of construction. c) Pursuant to LDC Section (b)(3)c, the variance is the minimum variance that will relieve the applicant of an unreasonable burden caused by the application of the regulation in question to her property. The variance will legitimize a side yard setback that was created in 1998 when the duplex was constructed. d) Pursuant to LDC Section (b)(3)d, the granting of the variances will not be injurious to the neighborhood or otherwise detrimental to the public welfare. The property most affected by the reduced side yard setback is adjacent property to the east. The duplex has been located on the property since 1998 with the existing 7 foot side yard setback and has not caused detriment to the adjacent property - the requested variance will legitimize the existing setback. e) Pursuant to LDC Section (b)(3)e, the condition or situation of the specific piece of property, or the intended use of the property, for which the variance is sought is not of a general or recurrent nature so as to make it more reasonable and practical to amend the ordinance. The requested variance is specific to the subject property and is not of a general or recurrent nature. It is not reasonable or practical to amend the ordinance. III. BACKGROUND INFORMATION AND ANALYSIS U:\201006\VAR \0\VAR WHITEWATER DECK VARIANCE.WPD Page 3 of 7

4 The applicant is requesting variances to allow a minimum 13 foot rear yard setback for two proposed open decks and to legitimize a minimum 7 foot side yard setback to existing stairs on the east side of the duplex. In the TFC-2 zoning district a minimum 20 foot rear yard setback and a minimum 7.5 foot side setback are required. Subject Property The subject property is located at 17307/17309 Whitewater Court in the Lakeside Estates Subdivision which is south of Summerlin Road and west of San Carlos Boulevard. The subdivision and property were created in 1980 in Plat Book 33 Page 76. The plat illustrates a lake abutting the rear property line; however, the actual lake is at least 15 feet north of the property line. The property is approximately 75 feet wide and 100 feet deep. It is developed with a duplex that was built in 1998 under residential building permit RES The duplex complies with the minimum required street and rear yard setbacks in the TFC-2 zoning district - it has a 25 foot street setback and a 29 foot rear yard setback. The duplex complies with the minimum 7.5 foot side yard setback to the west side of the duplex, but does not comply on the east side which only has a 7 foot side yard setback. The property is located in the FEMA-designated Special Flood Hazard Area in an AE-EL9 zone, which requires a base flood elevation of 9 feet (NAVD88). When the duplex was constructed in 1998, it was required that it be constructed with a minimum elevation of 10 feet. The base level of the duplex is not habitable - the livable areas are located at the base flood elevation. The proposed decks must also be elevated for access from the livable areas of the duplex. The decks must be constructed as part of the principal structure - for access at the base flood elevation. Therefore, the decks must comply with the setback requirements for principal structures (20 foot rear yard setback) instead of those for accessory structures not built as part of the principal structure (5 foot rear yard setback). If the decks were constructed so that they were not structurally made a part of the principal structure, a minimum of five feet from the rear property line would be required. Variance The first variance request is to allow a minimum 13 foot rear yard setback for two proposed open decks. A deck for each unit of the duplex. LDC Section (b) states that any accessory structure which is structurally a part of the principal building shall comply in all respects with the regulations for a principal structure; therefore, the proposed decks, constructed as structurally a part of the principal structure, must comply with the minimum required 20 foot rear yard setback in the TFC-2 zoning district. As previously mentioned, the subject property is required a base flood elevation of 9 feet (NAVD88). This elevation requirement makes it necessary to construct the decks as structurally part of the principal structure because of the height at which they must be constructed. Without a variance, and in compliance with the minimum required 20 foot rear yard setback, the decks could be constructed with a depth of 9 feet. If the decks were constructed so that they were not structurally made a part of the principal structure, a minimum of five feet from the rear property line would be required. The second variance is to legitimize the 7 foot side yard setback to the east side of the duplex. The duplex was permitted by RES The building plans illustrate a U:\201006\VAR \0\VAR WHITEWATER DECK VARIANCE.WPD Page 4 of 7

5 minimum 8 foot side yard setback; however, the boundary survey prepared after the duplex was constructed illustrates a 7 foot side yard setback to the east side of the duplex which does not comply with the minimum required 7.5 foot side yard setback. The duplex received its certificate of occupancy on February 26, The requested variance will legitimize the setback that was an error at time of construction. Surrounding Zoning The subject property and surrounding properties are located in the TFC-2 zoning district. Neighborhood Compatibility The neighborhood is developed with single-family residences. Decks are classified as residential accessory uses pursuant to LDC Section (c)(42) and are anticipated in residential neighborhoods. Duplexes are developed on the properties immediately east and west of the subject property. The applicant owns the property to the west. The property most affected by the proposed decks and reduced side yard setback is adjacent property to the east. The duplex has been located on the property since 1998 with the existing 7 foot side yard setback and has not caused detriment to the adjacent property. The applicant received a letter in support of the variance to allow a minimum 13 foot rear yard setback so that the decks can have a depth of 16 feet. The owner of the adjacent property claims that the decks will not block their view or infringe their backyard and that they welcome any improvement to the neighborhood. The letter is attached hereto as Attachment C. Lee Plan Consistency The subject property is located in the Central Urban future land use category which is defined in the Lee Plan as follows: POLICY 1.1.3: The Central Urban areas can best be characterized as the urban core of the county. These consist mainly of portions of the city of Fort Myers, the southerly portion of the city of Cape Coral, and other close-in areas near these cities; and also the central portions of the city of Bonita Springs, Iona/McGregor, Lehigh Acres, and North Fort Myers. This is the part of the county that is already most heavily settled and which has or will have the greatest range and highest levels of urban service--water, sewer, roads, schools, etc. Residential, commercial, public and quasi-public, and limited light industrial land uses (see Policy 7.1.6) will continue to predominate in the Central Urban area with future development in this category encouraged to be developed as a mixed-use, as described in Policy , where appropriate. This category has a standard density range from four dwelling units per acre (4 du/acre) to ten dwelling units per acre (10 du/acre) and a maximum density of fifteen dwelling units per acre (15 du/acre). Residential uses are anticipated in the Central Urban future land use category. The subject property complies with the density requirements permitted by the Lee Plan and therefore, staff finds the property CONSISTENT with Policy of the Lee Plan. U:\201006\VAR \0\VAR WHITEWATER DECK VARIANCE.WPD Page 5 of 7

6 Goal 5 of the Lee Plan is to provide sufficient land in appropriate locations to accommodate the projected population of Lee County in the year 2030 in attractive and safe neighborhoods. POLICY 5.1.5: Protect existing and future residential areas from any encroachment of uses that are potentially destructive to the character and integrity of the residential environment. There are no anticipated negative potential impacts of the variances on the existing residential area. The duplex was constructed in 1998 and received a certificate of occupancy. The proposed decks are classified as residential accessory uses, pursuant to LDC Section (c)(42). The existing duplex and proposed decks are CONSISTENT with Policy of the Lee Plan. Conclusion In conclusion, staff finds that the variance request to allow a minimum 13 foot rear yard setback for two proposed open decks does not meet the standards of approval for a variance pursuant to LDC Section (b)(3). Without a variance, and in compliance with the minimum required 20 foot rear yard setback, the decks could be constructed with a depth of 9 feet. Staff recommends denial of this variance request based on the findings and conclusions outlined in this staff report. The variance request to legitimize a minimum 7 foot side yard setback to the existing duplex meets the standards of approval for a variance pursuant to LDC Section (b)(3). The requested variance will legitimize the setback that was an error at time of construction. Staff recommends approval, as conditioned, of this variance request based on the findings and conclusions outlined in this staff report. IV. SUBJECT PROPERTY The applicant indicates the STRAP number is : C.0100 V. ATTACHMENTS A. Map of surrounding zoning B. Proposed Conditions C. Site Plan D. Letter of support VI. EXHIBITS A. Legal description U:\201006\VAR \0\VAR WHITEWATER DECK VARIANCE.WPD Page 6 of 7

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