Hear appeal of zoning variance denial for pickleball court setbacks

1 DATE: December 1, 2023 TO: Yocelyn Galiano, ICMA Village Manager FROM: Stephen Olmsted, AICP, LEED-GA Planning Director RE: Carlos Zamora - 11175 Killian Park Road Appeal of Zoning Board Decision to Deny Setback and Impervious Coverage/Greenspace Variances _________________________________________________________________________________ PETITION REQUEST Mr. Carlos Zamora is appealing the September 27, 2023 decision of the Pinecrest Zoning Board to deny two (2) variances from the requirements of the Village’s Land Development Regulations as follows: 1.) A variance from the side and rear yard setback requirements of Division 4.2 (c) 5. g. of the Village’s Land Development Regulations to allow an existing pickleball court to remain 8.74 feet from the side (north) property line instead of 19.20 feet, and 1.88 feet from the rear (east) property line instead of 15 feet, and 2.) A variance from the requirements of Division 4.2 (c) 5.d. of the Land Development Regulations to allow 54% impervious coverage on the subject property and 46% green space instead of 45% impervious coverage and 55% green space as otherwise required. Pursuant to Division 3.9 of the Village’s Land Development Regulations, the Village Council is required to conduct a de novo hearing and consider why the decision of the Zoning Board should or should not be sustained and/or modified. A copy of the submitted appeal including a description of the applicant’s request and a copy of the staff report and information previously considered by the Zoning Board on September 27, 2023 are attached. 2 SITE LOCATION The subject property is located at 11175 Killian Park Road, Pinecrest, FL 33156, within the EU-1, Residential Estate zoning district; Folio # 20-5012-012-0080. OWNER/APPLICANT Carlos Zamora (Owner and Applicant) BACKGROUND Mr. Zamora constructed a new home on the subject property in 2022 in compliance with all requirements of the Village’s Land Development Regulations. Following issuance of a certificate of occupancy, Mr. Zamora installed a new sports court and artificial turf without required permits, causing the property to now be in violation of the Village’s setback and impervious coverage/greenspace requirements. Mr. Zamora is now requesting setback and greenspace variances as referenced above to allow continuance of the sports court and artificial turf. A copy of Mr. Zamora’s application and letter of intent explaining his application and the circumstances related to his request are attached. In Mr. Zamora’s letter, he asserts that his lot is “significantly smaller” than other lots in the EU- 1, Residential Estate zoning district. The minimum required lot size in the EU-1, Residential Estate zoning district is one (1) acre (43,560 square feet) gross, measured to the centerline of adjoining rights-of-way. Mr. Zamora indicates in his September 27, 2023 correspondence (attached) that the gross area of his lot including adjacent right-of-way is 40,494 square feet, or less than the required one acre minimum. However, staff has calculated that there is approximately 11,635 square feet of right-of-way adjacent to the west and south property lines, measured to the centerline, resulting in a gross lot area of 44,127 square feet or 1.013 acres gross. SUBJECT PROPERTY 3 Mr. Zamora has included a list of “Recent applicable variance cases in Pinecrest”. Division 3.5 of the Village’s Land Development Regulations prohibit granting of a variance “because of the presence of nonconformities in the zoning district or uses in an adjoining zoning district or because of prior variances granted”. PUBLIC COMMENT The Building and Planning Department has received two (2) letters in support of the proposed variances, and one (1) letter in opposition. A copy of all correspondence is attached. PINECREST LAND DEVELOPMENT REGULATIONS The subject property is zoned EU-1, Residential Estate and is 32,492 square feet in area (net). Pursuant to the requirements of Division 4.2 (c) of the Village’s Land Development Regulations, the following setback, green space, and impervious coverage, requirements are applicable to the subject property: EU-1 Proposed Side Setback 19.2 feet 8.74 feet Rear Setback 15 feet 1.88 feet Min. Greenspace 55% 46% Max. Impervious 45% 54% [14,641 square feet = 45% (permitted home and structures) + 1,514 square feet = 5% (sports court) + 1,430 square feet = 4% (artificial turf)] Preservation of a minimum of 55% of the property in undeveloped natural area is required. Artificial turf is permitted in Pinecrest provided the specified minimum required natural area on each property is maintained. The submitted survey indicates that currently 46% of the property (14,907 square feet) consists of natural, undeveloped greenspace as defined by the Land Development Regulations. In order to satisfy the greenspace requirements of the Land Development Regulations, restoration of a total of 9% of the lot area (2,944 square feet) to green space will be required. The existing pickleball and half basketball court is located in the northeast corner of the subject property, within the required side and rear yard setback, 8.74 feet from the side lot line instead of 19.20 feet, and 1.88 feet from the rear lot line instead of 15 feet as otherwise required. Division 5.7 of the Village’s Land Development Regulations (buildings and structures), paragraph a., requires accessory uses to conform to the same setbacks as 4 principal structures with exceptions for certain specified accessory uses. Pickleball courts or other sports courts are not listed as an exception. SETBACK VARIANCE Division 4.2 (c) 5. g. of the Village’s Land Development Regulations requires the existing sports court to be located 19.20 feet from the side (north) property line and 15 feet from the rear (east) property line. The applicant has constructed an unpermitted sports court 8.74 feet from the side lot line and 1.88 feet from the rear property line. VARIANCE CRITERIA – SIDE AND REAR YARD SETBACK Criteria for approval of a variance from the requirements of the Land Development Regulations are provided in Division 3.5 of the Village’s Land Development Regulations. A copy of the criteria is attached for the Village Council’s consideration. In order to authorize any variance from the terms of the Land Development Regulations, the Village Council is required to find that the request meets all of the specified criteria. Criteria include the following: 1. Variance consistent with authorized powers. That the variance is in fact a variance set forth in the Land Development Code and within the province of the board or Village Council, as applicable. The Village Council has the authority to consider the request. Pursuant to Division 3.9 (d) of the Village’s Land Development Regulations, an appeal from any decision of the Zoning Board may be taken to the Village Council by any person who is aggrieved by such decision. 2. Existence of special conditions or circumstances. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district. There do not appear to be any special conditions related to the variance request. Maintenance of minimum specified setback requirements is a condition applicable to all other properties in the Village of Pinecrest. Approval of this variance request would grant the applicant a right that otherwise is not permitted. 3. Conditions not created by the applicant. That special conditions and circumstances do not result from the actions of the applicant. 5 The conditions and circumstances are the direct result of the applicant’s decision to design and construct a new home, swimming pool, gazebo, carport, and other structures, excluding the sports court, in compliance with the Village’s Land Development Regulations and to thereafter construct the sports court in its current location without going through the required permitting process. 4. Special privileges not conferred. That granting the variance requested will not confer on the applicant any special privilege that is denied by the Land Development Code to other lands, buildings, or structures in the same zoning district. Granting of the variance would confer a privilege to the applicant that would be denied to others. An accessory structure on the subject property within the EU-1, Residential Estate Zoning District is otherwise required to be located 19.2 feet from the side lot line and 15 feet from the rear property line. 5. Hardship conditions exist. That literal interpretation of the provisions of the Land Development Code would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the Land Development Code and would work unnecessary and undue hardship on the applicant. Hardship conditions do not appear to exist. Literal interpretation of the Land Development Regulations would require the applicant to obtain an impervious coverage/green space variance and relocate the unpermitted sports court, or alternatively, to remodel the impervious areas to of the site to accommodate the sports and artificial turf in compliance with the requirements of the Land Development Regulations. 6. Only the minimum variance granted. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure. A variance is not required to allow for reasonable use of the land. The property is 32,492 square feet in area (net) excluding adjoining right-of-way and includes a single- family residence swimming pool, gazebo, tiled terrace, pond, pergolas, carport, and three (3) driveway entrances including one adjacent to SW 122 Street, and two adjacent to Killian Park Road. Reasonable use of the property will continue to be available to the applicants if the variance request is denied. 7. Not injurious to the public welfare or intent of the land development code. That the grant of the variance will be in harmony with the general intent and purpose of the Comprehensive Development Master Plan and the Land Development Code and that 6 such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. The purpose of the Land Development Regulations is “to establish comprehensive controls and management for the use of land and water within the Village; to preserve the unique Village character; and to protect, promote, and improve the public health, safety, comfort, order appearance, convenience, and general welfare of the people within the Village”. The purpose of established setback requirements is to provide sufficient open space and separation of uses from adjoining properties, and to prevent infringement on the space and rights of neighbors, for example. Maintenance of a pickleball and half basketball court within the required side and rear yards, closer to the property lines than otherwise permitted, could be disruptive of the neighboring property owner’s quiet enjoyment of their property either now or at some time in the future, and could serve as the basis for similar requests by other property owners in the Village, if approved. Development on lots closer to the property line than otherwise required would be contrary to the purpose of the Land Development Regulations RECOMMENDATION – SIDE AND REAR YARD SETBACK VARIANCE The Building and Planning Department recommends that the requested variance be denied as the request does not meet all of the required criteria for approval. In the event the Village Council considers granting the requested variance, the Village Council may prescribe appropriate conditions to mitigate the proposed variance and to ensure safeguards in conformity with the Comprehensive Development Master Plan and the Land Development Regulations. If the Village Council makes the decision to approve the variance, staff would recommend the following conditions of approval be imposed: 1. Approval of a variance for reduction of greenspace in the amount necessary to accommodate the existing sports court. 2. The variance shall be limited to the existing sports court. The variance is specific for this use and does not provide the right to build other structures in the required setback areas. 3. If the sports court is removed, damaged or destroyed to an extent that equals or exceeds 50 percent of its value, the setback variance shall expire and any new construction or reconstruction shall occur in compliance with the Village’s Land Development Regulations. 4. A six-foot solid fence shall be installed adjacent to the north and east sides of the existing sports court and landscaping consisting of a hedge and trees shall be planted between the north and east property line and the sports court to form an opaque 7 landscaping buffer on the owner’s property. A proposed landscaping plan shall be submitted for review and approval by the Administrative Official prior to planting. Additional landscaping may include Paradise Trees, Pigeon Plum Trees Travelers Palms, Dahoon Holly, Japanese Ferns, Large Leaf Clusia or equivalent plantings as approved by the Administrative Official. Trees shall be a minimum of twelve feet in height and 3 inches diameter (dbh) at the time of planting. 5. The applicant shall install “acoustiblok” or equivalent sound attenuating material on the north and east sides of the required fence adjacent to the pickleball court to reduce noise that the game of pickleball typically generates. 6. Illumination of the sports court shall not be permitted. 7. The applicant shall obtain a building permit from the Village of Pinecrest Building and Planning Department. GREENSPACE VARIANCE Permitting the sports court and artificial turf as proposed by the applicants will require a variance from the requirements of Division 4.2 (c) 5. d. iii of the Land Development Regulations to allow 46% green space on the property where a minimum of 55% is otherwise required (“Minimum green space: 55 percent”). The Land Development Regulations define “Green Space” as “a permeable area or areas open to the sky (except for roof overhangs up to three feet) including beautification strips, consisting of those materials such as, but not limited to hedges, trees, planted ground cover, grassed areas, planted floral installations, and dry retention areas, all of which must be composed of natural plantings only”. During a review and discussion of the Village’s Land Development Regulations in 2018, the Village Council confirmed that the definition of required green space does not include artificial turf and is limited to natural plantings only. VARIANCE CRITERIA – GREEN SPACE Criteria for approval of a requested variance are provided in Division 3.5 of the Village’s Land Development Regulations. A copy of the criteria is attached for the Village Council’s consideration. In order to authorize any variance from the terms of the Land Development Regulations, the Village Council is required to find that the request meets all of the specified criteria. Criteria include the following: 8 1. Variance consistent with authorized powers. That the variance is in fact a variance set forth in the Land Development Code and within the province of the board or Village Council, as applicable. The Village Council has the authority to consider the request. Pursuant to Division 3.9 (d) of the Village’s Land Development Regulations, an appeal from any decision of the Zoning Board may be taken to the Village Council by any person who is aggrieved by such decision. 2. Existence of special conditions or circumstances. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district. There are no special conditions that exist that are peculiar to the land that necessitate a reduction in greenspace to accommodate the proposed pickleball court and artificial turf. Approval of the requested variance is not necessary to accommodate outdoor recreational activities on the residential property. 3. Conditions not created by the applicant. That special conditions and circumstances do not result from the actions of the applicant. The conditions and circumstances relative to the proposed variance result from the desires and actions of the applicant to install a pickleball court and artificial turf without permits subsequent to issuance of a certificate of occupancy. 4. Special privileges not conferred. That granting the variance requested will not confer on the applicant any special privilege that is denied by the Land Development Code to other lands, buildings, or structures in the same zoning district. Maintenance of 55% green space is a requirement that applies to all properties in the EU-1, Residential Estate zoning district. Approval of the requested variance for a reduction in required green space would confer a privilege that is otherwise denied to other properties in the same EU-1, Residential Estate zoning district. 5. Hardship conditions exist. That literal interpretation of the provisions of the Land Development Code would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the Land Development Code and would work unnecessary and undue hardship on the applicant. 9 Hardship conditions do not appear to exist. Literal interpretation of the Land Development Regulations would require the applicants to remove the sports court and to reduce the area and intensity of the artificial turf and/or hardscape. 6. Only the minimum variance granted. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure. A variance is not required to allow for reasonable use of the land. The property is 32,492 square feet in area (net), not including the adjoining right-of-way) and includes a single-family residence swimming pool, gazebo, tiled terrace, pond, pergolas, carport, and three (3) driveway entrances including one adjacent to SW 122 Street, and two adjacent to Killian Park Road. Reasonable use of the property will continue to be available to the applicants if the variance request is denied. 7. Not injurious to the public welfare or intent of the land development code. That the grant of the variance will be in harmony with the general intent and purpose of the Comprehensive Development Master Plan and the Land Development Code and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. Land Development Regulations The authority and purpose of Chapter 30, Land Development Regulations of the Village of Pinecrest Code of Ordinances is “to establish comprehensive controls and management for the use of land and water within the village; to preserve the unique village character; and to promote and improve the public health, safety, comfort, order, appearance, convenience, and general welfare of the people within the village”. Preservation of a certain portion of natural undeveloped land within the Village is consistent with the purpose and intent of the Village’s Land Development Regulations. The Land Development Regulations define “Green Space” as “a permeable area or areas open to the sky (except for roof overhangs up to three feet) including beautification strips, consisting of those materials such as, but not limited to hedges, trees, planted ground cover, grassed areas, planted floral installations, and dry retention areas, all of which must be composed of natural plantings only”. The purpose of the Land Development Regulations is “to establish comprehensive controls and management for the use of land and water within the Village; to preserve the unique Village character; and to protect, promote, and improve the public health, safety, comfort, order appearance, convenience, and general welfare of the people within the Village”. The purpose of impervious coverage, and greenspace requirements is to provide sufficient open space and separation of uses from adjoining properties, to 10 prevent infringement on the space and rights of neighbors, to allow room for natural vegetation, to serve as filtration areas for stormwater runoff, and to otherwise support the natural environment and the positive impacts that preservation of green space provides, including absorption of carbon dioxide, generation of oxygen, and cooling of the microclimate through evapotranspiration, for example. Approval of a reduction in required green space would be inconsistent with the stated purpose of the Land Development Regulations. Comprehensive Development Master Plan Preservation of natural undeveloped land is consistent with Policy 1-2.2.1: Low Density Residential Development of the Comprehensive Plan. The policy states that the densities for low-density residential development are prescribed to “promote compatibility with natural features of the land”, and to “protect the quality and character of residential estates and single-family neighborhoods from incompatible development”. Preservation of undeveloped natural space is consistent with the policy’s intent to “promote compatibility with natural features of the land”, thereby protecting the quality of the residential neighborhood. Preservation of natural, undeveloped open space is also consistent with Policy 1-3.2.6 Redevelopment Planning Activities of the Village’s Comprehensive Development Master Plan. The policy requires that the Land Development Regulations provide a regulatory framework that prevents the loss of open space, landscaping, native vegetation and tree canopies, and requires screening and/or buffer areas adjacent to areas of potentially incompatible land uses. The goal of the Conservation Element of the Village’s Comprehensive Development Master Plan (Goal 5-1) is to “conserve, manage, use and protect the natural and environmental resources of Pinecrest to ensure continued resource availability and environmental quality”. Green space, defined in the Land Development Regulations as areas “consisting of those materials such as, but not limited to hedges, trees, planted ground cover, grassed areas, planted floral installations, and dry retention areas, all of which must be composed of natural plantings only”, is a critically important natural and environmental resource that is protected through implementation of green space requirements of the Land Development Regulations. A reduction in required green space would be inconsistent with Goal 5-1 and related objectives and policies of the Comprehensive Plan. 11 RECOMMENDATION – GREEN SPACE VARIANCE The Building and Planning Department recommends that the variance request be denied as the request does not meet all of the criteria required for approval. In the event that the Village Council makes the decision to approve the variance, staff would recommend the following conditions of approval be imposed: 1. Any reduction in required green space shall be limited and applied to facilitate the existing pickleball court only; and shall not be used to support any subsequent increases in development intensity. 2. Review and approval of a survey, site plan, and building permits by the Building and Planning Department.