Hear appeal of zoning board decision denying lot area variances

DATE: December 1, 2023 TO: Yocelyn Galiano, ICMA Village Manager FROM: Stephen R. Olmsted, AICP Planning Director RE: Vladislava Finskaya and 5811 Kendall Property, LLC 5811 North Kendall Drive (SW 88 Street) Appeal of Zoning Board Decision to Deny Lot Area Variances _________________________________________________________________________________ PETITION REQUEST Vladislava Finskaya and 5811 Kendall Property, LLC (Property Owners) and Javier Vasquez and Edward Baker (Applicants) are appealing the September 27, 2023 decision of the Pinecrest Zoning Board to deny variances from the minimum lot area requirements of Division 4.2 (e) 5. a. of the Village’s Land Development Regulations to allow a lot area of 12,596 square feet for prospective lot 1 and 14,271 square feet for prospective lot 2 instead of 15,000 square feet as otherwise required. The property owners would like to divide their single-family residential lot located at 5811 North Kendall Drive (SW 88 Street) into two (2) lots. The subject property is zoned EU-M, Residential Modified Estate and does not have sufficient acreage to accommodate two lots in compliance with the minimum required lot size of 15,000 square feet. The property is located partially in the City of South Miami (north half) and the Village of Pinecrest (south half). If the requested variance is approved by the Village Council, subsequent division of the property into two lots will require review and approval of a preliminary subdivision plat by the Village Council in a separate public hearing. On September 28, 2022, the Zoning Board approved variances for a reduced lot width of 100 feet instead of 120 feet as otherwise required, and a reduced lot area of 12,963 square feet for prospective lot 1 and 14,464 square feet for prospective lot 2 instead of the required 15,000 square feet. However, subsequent to the Zoning Board’s approval of the variances, it was discovered that the lot sizes provided on the survey at the time were 2 incorrect and the applicants then applied to the Zoning Board for a variance for smaller lot sizes than originally approved to “correct a scrivener’s error” and reflect actual intended lot sizes. Following consideration of the new request in an advertised public hearing on September 27, 2023, the Zoning Board denied the requested lot area variances. 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 variance applications and staff reports previously considered by the Zoning Board are attached. A description and analysis of the applicants’ request is provided as follows: Lot Size Required Lot Size Proposed Pinecrest: 15,000 Square Feet 12,596 square feet (Lot1) 14,271 square feet (Lot 2) SITE LOCATION The subject property is located partially in both the Village of Pinecrest and the City of South Miami at 5811 North Kendall Drive (SW 88 Street), within the EU-M, Residential Modified Estate zoning district (Pinecrest) and RS 3 Low Density residential Zoning District (South Miami). The Village of Pinecrest and City of South Miami entered into an interlocal agreement on April 15, 2022 allowing for the Village of Pinecrest to review permit and variance applications for this property. A copy of the agreement is attached. SUBJECT PROPERTY 3 OWNER/APPLICANT Vladislava Finskaya and 5811 Kendall Property, LLC (Owners); and Javier Vasquez and Edward Baker (Applicants) PUBLIC COMMENT The Building and Planning Department has received one (1) letter in opposition to the proposed variance. A copy of the letter is attached. Additionally, a neighboring resident appeared at the public hearing before the Zoning Board on September 27, 2023 and spoke in opposition to the request. LAND DEVELOPMENT REGULATIONS The property is zoned EU-M, Residential Modified Estate within the Village of Pinecrest, and RS 3, Low Density Residential within the City of South Miami. The required width and area requirements in Pinecrest for lots within the EU-M, Residential Modified Estate zoning district are 120 feet in width and 15,000 square feet in area. Requirements in the RS 3 District in South Miami include a minimum lot width of 75 feet and lot area of 10,000 square feet. Although the proposed dimensions meet the requirements of the City of South Miami, the Village of Pinecrest has permitting authority over the subject property pursuant to the approved interlocal Agreement. Criteria Criteria for approval of a requested variance are provided in Division 3.5 of the 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, 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. 4 The attached Interlocal Agreement grants authority to the Village of Pinecrest to consider zoning matters for the subject property that is located partially in both Pinecrest and South Miami. 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. The subject property is located in two separate jurisdictions, within the Village of Pinecrest and the City of South Miami. If the lots were located entirely in South Miami, the requested variances would not be required since they are in compliance with the dimensional requirements of the City of South Miami’s RS 3 zoning district. However, the approved agreement with the City of South Miami provides authority to the Village of Pinecrest to make land use decisions for the property. Division of the subject property into 2 lots would allow for lot sizes that are inconsistent with the area requirements of the Village of Pinecrest. 3. Conditions not created by the applicant. That special conditions and circumstances do not result from the actions of the applicant. The conditions are created by the applicant and the applicant’s desire to divide the property into two lots. The subject property has not changed since the existing lot was originally created. The current condition has arisen as a result of the applicant’s desire to divide the property into two lots. If the variance is not granted, it will not be possible to divide the property so that both lots meet the minimum area requirements of the Village’s Land Development Regulations. The existing parcel is 26,867 square feet in area. 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. The property is not large enough to allow for subdivision in Pinecrest without the requested variances and would confer privileges to the applicant that are not otherwise available to other properties located within the Village of Pinecrest’s EU- M, Residential Modified 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 5 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 not deprive the applicant of the rights that are available to others in the same zoning district. Denial of the requested variance would require the existing parcel to remain undivided with an overall area of 26,867 square feet in area but would allow for continuance of the existing single- family residence or redevelopment of a new residence and accessory structures on the property consistent with requirements of the Village’s EU-M, Residential Modified Estate zoning district. 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. A single-family residence currently exists on the subject property. Reasonable use of the property including continuance of the existing home or development of a new home in compliance with the Village’s Land Development Regulations is currently available without the requested variance and will continue to be available to the property owners if their 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. The subject property is designated as EU-M, Residential Modified Estate on the Future Land Use Map of the Village’s Comprehensive Development Master Plan. Policy 1-2.2.1 of the Village’s Comprehensive Plan specifies a minimum required lot size of 15,000 square feet within the EU-M, Residential Modified Estate. Lot sizes smaller than the specified 15,000 square feet would be inconsistent with the Future Land Use Map and Policy 1-2.2.1 of the Comprehensive Plan. 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 minimum lot size requirements is to provide sufficient open space and separation of uses from 6 adjoining properties, to prevent over development inconsistent with adopted levels of service, and to prevent infringement on the space and rights of neighbors, for example. Development on lots that are smaller in area than otherwise required would be contrary to the purpose of the Land Development Regulations. RECOMMENDATION 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. This recommendation is consistent with the staff recommendation for denial made to the Zoning Board on September 28, 2022 and September 27, 2023. 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 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 approved by the Village Council, staff recommends the following condition of approval, as imposed by the Zoning Board in its 2022 approval: 1. Thirty-five percent (35%) or 5,250 square feet of green space shall be provided on each lot as would be otherwise be required for a 15,000 square foot lot.