Approve variances for existing shed and generator at 6841 SW 104 Street

DATE: February 6, 2023 TO: Yocelyn Galiano, ICMA, LEED-GA Village Manager FROM: Stephen R. Olmsted, AICP Planning Director RE: Kaan and Alexandra Kaleli Aguirre, 6841 SW 104 Street Appeal of Zoning Board Decision to Deny Setback Variances – Existing Shed and Generator PETITION REQUEST Kaan and Alexandra Kaleli Aguirre (Owner and Applicant) are appealing the decision of the Pinecrest Zoning Board to deny their request for a variance from the side street setback requirements of Division 4.2 (c) 5. g. of the Village’s Land Development Regulations to allow an existing shed currently located 4.10 feet from the west (side street) property line to be located 5 feet from the west (side street) property line instead of 30 feet as otherwise required; and a variance from the requirements of Division 5.19 (j) of the Village’s Land Development Regulations to allow placement of a generator forward of the corner side building line. 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 staff report considered by the Zoning Board on November 16, 2022 is attached. Setback Required/Proposed Variance Requested West (Side): 30 Feet/5 Feet 25 Feet Page 2 of 5 SITE LOCATION The subject property is located at 6841 SW 104 Street, Pinecrest, FL 33156, within the EU- 1, Residential Estate zoning district; Legal Description - Lot 22, Block 1, Van Haven Estates Subdivision; Folio # 20-5002-054-0020. OWNER/APPLICANT Kaan and Alexandra Kaleli Aguirre (Owners and Applicants) BACKGROUND The property owners have submitted a letter of intent that explains the circumstances related to their request for a variance (attached). When the owners moved into their home, there was an existing generator located on a trailer that was chained to a concrete block and covered with a tarp. Over the course of time, as the generator began to deteriorate in the elements, the owners constructed a shed in the location of the generator and moved the generator into the shed. While moving the existing generator into a new shed was intended to protect the generator and enhance the appearance of the installation, it was constructed without required building permits, in a location inconsistent with setback requirements of the Village’s Land Development Regulations. Additionally, the generator is located forward of the corner side building line, inconsistent with the requirements of Division 5.19 (j) of the Village’s Land Development Regulations (“In no event shall a generator or above-ground fuel tank be placed forward of the front or corner side building line”). SUBJECT PROPERTY Page 3 of 5 PUBLIC COMMENT The Building and Planning Department has received correspondence from two (2) neighboring property owners in favor of the requested variance. VARIANCE CRITERIA Criteria for approval of a requested variance are provided in Division 3.5 of the Land Development Code. A copy of Division 3.5 is attached for the Village Council’s consideration. 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, based upon the opinion of the Village Attorney. 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 otherwise appear to be any special circumstances that are peculiar to the land, structure, or building that are not applicable to other properties in the EU1-1, Residential Estate zoning district. 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 do result from the actions of the applicant. Although the generator was on the property at the time the applicants purchased their home, the applicants constructed the shed in its current location without a required building permit, and moved the generator into the shed. 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 Page 4 of 5 Development Code to other lands, buildings, or structures in the same zoning district. Granting of the variance would allow the applicants to maintain a shed and generator in a location that is inconsistent with setback requirements of the Village’s Land Development Regulations and would therefore confer a privilege on the applicant that is otherwise denied to others in the same 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. Literal interpretation of the Land Development Code would not deprive the applicant of rights commonly enjoyed by other properties in the same zoning district. Conformance with existing setback requirements would require relocation of the shed and generator to other areas of the property consistent with setback requirements but would not deprive the applicants of use of the property for residential purposes, and would not deprive them of the use of a generator. 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. There is an established residence, swimming pool, and outdoor play area on the subject property. Reasonable use of the land and property will continue to be available to the applicant if the variance 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. 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 space and separation of uses from adjoining Page 5 of 5 properties, to prevent infringement on the space and rights of neighbors, to allow room for natural vegetation, and to provide sufficient area for infiltration and management of stormwater runoff. Encroachment into required property line setbacks would be contrary to these purposes. STAFF RECOMMENDATION The Building and Planning Department recommends that the requested variance be denied as the request does not meet all of the seven criteria required for approval. In the event the Village Council considers granting the requested variance, the Board 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 or any other duly enacted ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of the Land Development Regulations and shall nullify the variance. If the requested variance is approved, staff recommends the following conditions of approval: 1. The variance shall be limited to the existing shed. If the shed is demolished or removed, it shall be reconstructed in conformance with applicable zoning requirements of the Land Development Regulations. 2. Maintenance of the existing wall and trees between the shed and the east property line adjacent to SW 68 Court. 3. The owners shall obtain a building permit for the shed from the Village of Pinecrest Building and Planning Department. 4. The owners shall obtain an electrical permit for the generator from the Village of Pinecrest Building and Planning Department.