File #: VA-2306    Version: Name:
Type: Planning Item Status: Failed
File created: 8/4/2023 In control: Planning and Zoning Board
On agenda: 11/8/2023 Final action: 11/8/2023
Title: VA-2306: Request for a variance to allow a 2 foot setback in lieu of 50 foot mean high water line setback and to allow an in ground swimming pool within 3 feet from the primary structure instead of the required setback of 5 feet for the property at 21 Pelican Lane.
Attachments: 1. Plans

ITEM DESCRIPTION:

Title

VA-2306: Request for a variance to allow a 2 foot setback in lieu of 50 foot mean high water line setback and to allow an in ground swimming pool within 3 feet from the primary structure instead of the required setback of 5 feet for the property at 21 Pelican Lane.

Body

OWNER: 

Franklin D. Kelley

 

PARCEL ID:

840244020190

 

LOCATION:

21 Pelican Lane

 

LOT SIZE:                     

6,500 square feet, 50’ width x 130’ length

 

PROPOSED USE:

Swimming Pool

 

CURRENT LAND USE: 

Single-Family Home

 

FLUM DESIGNATION: 

Medium Density Residential (MDR)

 

ZONING DISTRICT:

R-4

 

VOTING DISTRICT: 

District 3, Councilwoman Debbie Dolbow

 

BACKGROUND:

 

Explanation of hardship by applicant: Due to the limited area of the property, the applicant contends they cannot meet the required setbacks and are applying for a variance.

 

According to Section 21-100.04(d), Non-Administrative Variance, City of Edgewater’s Land Development Code; In order to grant a non-administrative variance, the P&ZB shall make the following findings of fact:

 

1.                     That granting of the proposed variance is not in conflict with the Comprehensive Plan;

2.                     That granting of the proposed variance will not result in creating or continuing a use which is not compatible with adjacent uses in the area;

3.                     That granting of the proposed variance is the minimum action available to permit reasonable use of the property;

4.                     That the physical characteristics of the subject site are unique and not present on adjacent sites; and

5.                     That the circumstances creating the need for the variance are not the result of actions by the applicant, actions proposed by the applicant or actions by the previous property owner(s).

6.                     That granting of the proposed variance(s) will not cause substantial detriment to the public welfare or impair the purposes and intent of the Land Development Code.

 

 

1.                     Will granting the proposed variance result in a conflict with the Comprehensive Plan?

a.                     Staff’s response: After review, Staff has determined that granting the variance would result in a conflict with the Comprehensive Plan.

i.                     Yes, granting the variance would negate Comprehensive Plan Policy 1.1.11, Policy 1.2.2, and Policy 1.2.3.

i.                     Policy 1.1.11:

Development Adjacent to Estuarine and Riverine Shoreline Areas. Development adjacent to estuarine and riverine shoreline areas shall maintain a habitat buffer zone to protect or conserve the canopy, understory and ground cover of native upland vegetation and wetlands.

 

ii.                     Policy 1.2.2:

Impervious Surface and the Mean High Water Line. No more than 30% impervious surface shall be allowed within 100 feet of the mean high water line.

 

iii.                     Policy 1.2.3:

Shoreline Protection Buffer. A shoreline protection buffer shall be maintained for a distance extending 50-feet laterally upland from the mean high water line within the buffer zone and 25-feet from wetland vegetation, except that reasonable access shall be permitted.

                                          

                                          This criterion has not been met.

 

 

2.                     Will the granting of the proposed variance result in creating or continuing a use which is not compatible with adjacent uses in the area?

 

a.                     Applicant’s response: No, all areas in the 100’ MHW are currently encroaching upon the 100’ shoreline. Virtually the entire shoreline along the neighborhood encroach on the shoreline buffer.

 

b.                     Staff’s response: No, granting the variance will not result in creating or continuing a use which is not compatible with adjacent uses.

 

This criterion has been met.

 

3.                     Is the proposed action the minimum action available to permit reasonable use of the property?

 

a.                     Applicant’s response: Yes, pool will be engineered to meet all safety requirements.

 

b.                     Staff’s response: No, the applicant has reasonable use of the property through the house as a dwelling unit, with supplemental features such as a boat dock and large outdoor patio/lanai. After review, staff considers meeting setbacks based upon parcel size the reasonable use of the property.

 

The zoning designation of the applicant’s property is R-4 Multi-family Residential with a Future Land Use of Medium Density Residential.

 

According to Section 21-36.09(d)(2), Location:

 

No swimming pool shall be constructed closer than five (5) feet from any building without engineering, nor within any easement or ten (10) feet from any property line, unless a Development Agreement or P.U.D. Agreement is established for the property.

 

Section 21-36.09(k), Walkway, states:

 

A walkway of concrete or other approved materials shall surround all swimming pools from the overflow rim outward a distance of three feet (3’) for at least two-thirds (2/3) of the pool perimeter and shall be so designed that water cannot drain from the walkway into the pool.

 

The applicant is proposing a figure eight style pool in a rear back yard with a width of 16 feet and a length of 50 feet between the building and the concrete rip rap. The proposed pool has a setback of 2’ from the concrete rip rap and 2 feet from the proposed building. Based upon the site plan, it is unclear whether the applicant meets Section 21-36.09(k), however it is clear the applicant cannot meet Section 21-36.09(d)(2) with regards to the rear setback. The applicant is proposing a rear setback of 2 feet while the code requires a minimum of 10 feet from any property line and 5 feet from any structure.

 

Figure 1: 21 Pelican Lane - Backyard

 

After reviewing surrounding properties, Staff identified within the Pelican Cove Subdivision a property with a pool in the rear yard adjacent to Indian River. The property, 3 Pelican Lane, has a pool with a rear property line setback of 16 feet and a building setback of 6 feet.

 

 

Figure 2: 3 Pelican Lane - Backyard

Staff also identified another property in the Pelican Cove Subdivision with a pool in the rear yard adjacent to Indian River. 29 Pelican Lane has a pool with a rear setback of 18 feet and a building setback of 5 feet.

 

Figure 3: 29 Pelican Lane - Backyard

 

This criterion has not been met.

 

4.                     Are the physical characteristics of the subject site unique and not present on adjacent sites?

 

a.                     Applicant’s response: No, others have been allowed to encroach on setbacks.

 

b.                     Staff’s response: The subject site is considered a conforming lot with the Pelican Cove subdivision. This lot in particular has an expansive second story deck and covered patio that is not present in other properties within the subdivision that was made in the backyard to maximize the use of the property within the rear yard setback.

 

This criterion has not been met.

 

5.                     Are the circumstances creating the need for the variance the result of actions by the applicant or actions proposed by the applicant?

 

a.                     Applicant’s response: Yes, merely requesting a pool for the enjoyment of family, friends, and neighbors.

 

b.                     Staff’s response: Yes, the applicant or the prior owner decided to build a 2nd story deck and 1st floor covered patio into the backyard within the parameters of the rear yard setback. The expansion of this deck and patio limits the remaining usable space within the confines of the backyard for permanent structures.

 

This criterion has not been met.

 

6.                     Will the granting of the proposed variance cause substantial detriment to public welfare or impair the purposes and intent of the Land Development Code?

 

b.                     Applicant’s response: No, while there will be no detriment to public welfare, it may not meet the current code.

 

c.                     Staff’s response: Yes, granting the variance will negate the intent of the Land Development Code for establishing setback.

 

This criterion has not been met.

 

 

 

Staff Summary

 

Staff received the following feedback from City Departments:

 

Environmental Services:

The subject property fronts the Indian River with a rubble revetment along the shoreline. In 2011-2012, the single-family home was extended eastward with an enclosed patio and deck (permits 11-1509 & 12-107). The Applicant is requesting to construct a pool between the shoreline revetment and enclosed patio, with the proposed pool deck immediately adjacent to the revetment. Below is an oblique aerial image of the property dated January 2023 facing northwesterly.

 

 

LDC Reference: (original text in italics, bold/underlined portions for emphasis)

Article IV Resource Protection Standards

Section 21-41 Wetlands

21-41.04 - Buffer Requirements

a. A minimum buffer of fifty feet (50') upland from the mean high water line and a minimum of twenty-five feet (25') upland from the wetland boundary shall be established adjacent to and surrounding all wetlands.  The buffer may coincide with the required setback on a lot pursuant to Article V.  There shall be no development activities in the buffer, except for direct access to water bodies.

Analysis:

Measuring from the January 2023 aerial, the original easternmost exterior wall was constructed approximately 50ft from the apparent edge of water. The addition of an enclosed patio and deck circa 2012 has reduced this setback to approximately 25ft from edge of water. There are two existing encroachments allowing direct access from the property to the water body. Of the 14 properties with river frontage along Pelican Lane, 2 have pools in their rear yard.

Recommendation:

Environmental Services recommends denial of the requested variance. The request to further increase the property’s encroachment into the riverine setback does not meet the intent of the Resource Protection Standards portion of the Land Development Code and is not considered a necessary feature for the dwelling.

 

•                     Economic Development: Hardship has not been demonstrated, does not recommend approval.

 

•                     Fire: No comment.

 

 

 

Staff does not recommend approval of the Variance for application VA-2306 because all six (6) criteria could not be met in accordance with Section 21-100.04(d), Non-Administrative Variance.

 

 

 

Variance general requirement for the Board’s consideration:

 

Economic, personal, or any other hardship that is self-imposed shall not be sufficient justification to grant a variance. Hardship for the purpose of this section is defined as a restriction on property so unreasonable that it results in an arbitrary and/or capricious interference with basic property rights. Hardship relates to the physical characteristics of the property, not the personal circumstances of the owner or user, and the property is rendered unusable without the granting of a variance.

 

 

 

RECOMMENDED ACTION

Motion to deny the Variance for application VA-2306.