MINUTES ADJUSTMENTS AND APPEALS BOARD. January 6, Heather Lill, Recording Secretary

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1 MINUTES ADJUSTMENTS AND APPEALS BOARD January 6, 2016 A Public Hearing of the City of South Daytona s Adjustments and Appeals Board was called to order in the South Daytona City Council Chambers, 1672 South Ridgewood Avenue, South Daytona, FL at 6:00 PM by Vice-Chairman, Larry Robinson. PLEDGE OF ALLEGIANCE ROLL CALL: MEMBERS PRESENT: Larry Robinson, Vice-Chairman Dave Buckman Darrell Bofamy Gregg Willard Ari Morse Gerald Masters STAFF: John Dillard, Community Dev. Dir. Heather Lill, Recording Secretary Chairman, Tommy Duane, was unable to attend; however, we do have a quorum. APPROVAL OF MINUTES: Board Member, David Buckman, made a motion, seconded by Board Member, Darrell Bofamy, to approve the Minutes from the September 2, 2015 meeting. VOICE VOTE: ALL YES DISCLOSURE OF EXPARTE COMMUNICATION: None OLD BUSINESS: None NEW BUSINESS: 1. A&A Case No : A variance request by property owner, Macrina A. Valle, 563 Katherine Street, South Daytona, Florida 32119, to allow the construction of a four (4) foot height fence within the ten (10) foot side yard setback per Land Development Regulation Code, Article V, Zoning Regulations, Section 5.6 Supplementary Regulations, E. Fences and walls for the property located 563 Katherine Street, South Daytona, Florida Tax Parcel: Zoning: R1C Single Family Residential John Dillard delivered the background analysis for the case. He stated that the current owners have owned the subject property since May 1995, according to the Volusia County Tax Assessor s records. The house was built in 1957, and a chain-link fence was

2 installed in the side yard prior to the setback and height requirements adopted in the Zoning Ordinance. The owner would like to install a new fence in the same location as the existing fence. The owner s contractor applied for a City fence permit to install the 4-foot high chainlink fence in the same location as the existing fence and was denied. According to City Code, a 4-foot high chain-link fence is allowed in the side yard of a residential corner lot, no closer than 10 feet from the right-of-way. At that point the property owner stopped the fence project and contacted the City to explore options. The property was inspected by the City and it was found that the property in question, along with several other residences in the immediate vicinity, had similar fence installations. It was suggested that the property owner seek a variance to allow the replacement of the fence in the current location. Hardship Criteria: 1. Are there special conditions particular to the property? No. The home was constructed in 1957 under different zoning requirements. The property is an exceptionally large lot and does meet the width and depth requirements of the current zoning and is sufficiently wide enough to meet the 10-foot side yard setback. 2. Do these special conditions result from actions of the applicant? No. 3. Will the granting of the variance give a special privilege denied to other properties in the same situation? No. The existing chain-link fence along the side property line was installed prior to this setback requirement. Variances have been granted in the past for both the rear and side yards to replace existing fences in the same location. 4. Would literal interpretation of the code deprive the applicant of rights commonly enjoyed by similar properties and work an unnecessary and undue hardship on the applicant?. Property owners have requested and received dispensation to allow the installation of chain-link fences within the 10-foot setback since the City Code changes. 5. Is the variance request a reasonable minimum?. The City feels that the fence setback requirements would unnecessarily exclude a 10-foot by 100-foot (1,000 square foot) area of the back yard currently enclosed within the fenced area and the request is reasonable. 6. Would the granting of the variance be in harmony with the intent of the code and not injurious to the area or the public welfare? 2

3 Recommendation:. The neighborhood has several 4-foot chain-link fences both in the front yard and side yard setbacks. This is an older portion of the City that has maintained these fence locations for approximately 30 plus years without incident. The existing 4-foot high chain-link fence is unobtrusive and does not create any visibility barriers for vehicular traffic or pedestrians along the adjacent roadway along the current fence. The relocation of the fence back to the required setback would adversely affect a large portion of the existing fenced-in backyard. Staff has no concerns and supports this variance for a 4-foot high chain-link fence to be installed in the same location as the existing fence in the side yard of this property. John Dillard stated that the homeowner is present and asked if the Board had any questions for him or the owner. Vice-Chairman, Larry Robinson, asked how close to the right-of-way will the fence line be. John Dillard responded that the property line is close to the right-of-way and it is about 14 feet from the fence to the pavement; the owner is requesting a ten foot variance. Board Member, Dave Buckman, asked if it would be cheaper for the owner to relocate the fence north by connecting it to the neighbor s wooden fence. John Dillard responded that it would be a shorter run of fence by approximately ten feet, but what she is requesting is a variance to that ten feet, basically keeping the fence at its current location. Macrina Valley, 563 Katherine Street, South Daytona, Florida, stated that her neighbor next to her has a dog, and where his backyard and her backyard meet, she wants to put up a six foot privacy fence, in addition to the variance request for the four foot chain link fence. Board Member, Darrell Bofamy, asked if she was replacing what she has right now. Macrina Valley responded yes. She noted that she has spoken with her neighbors and that they are all aware of what she plans to do. Board Member, Jerry Masters, asked if the requested location of the fence would obstruct any maintenance that needed to be conducted. John Dillard responded no. Vice-Chairman Robinson asked if there is anyone in the audience that wishes to speak for or against the variance request. Noting that there were none, Vice-Chairman Robinson asked for a motion from the Board. Board Member, Ari Morse, made a motion, seconded by Darrell Bofamy, to approve the variance as requested. ROLL CALL VOTE: Darrell Bofamy Gregg Willard 3

4 David Buckman Larry Robinson Ari Morse Jerry Masters 2. A&A Case No : A variance request by property owner, William H. Baranowski, 137 Deskin Drive, South Daytona, Florida, 32119, to allow the construction of a shed within the eight and half (8.5) foot side yard setback per Land Development Regulation Code, Article V, Section 5.6 Supplementary Regulations, A. Accessory uses and structures for the property located at 137 Deskin Drive, South Daytona, Florida Tax Parcel: Zoning: R1B Single Family Residential John Dillard delivered the background analysis for the case. The current owner, William Baranowski, has owned the subject property since August 2005, according to the Volusia County Property Appraisers web site. These records also indicate that the home with garage and finished open porch was constructed in An attached survey depicts the property and an addition and patio. Staff has provided a depiction of the property from a street view, using an internet map service. The property owner is proposing to construct a shed of the same construction materials as the existing structure on the north side of the home. The new addition would be required to meet current Florida Building Code regulations. According to the property owner, the Orchards Phase I Homeowner s Association (HOA) does not allow sheds to be constructed in the rear yards of the subdivision. Because of this requirement, the side yard is the only location to construct a shed that would meet the HOA requirements. The north side location was chosen due to a large oak tree and airconditioning equipment pad located on the south side of the house. The lot is subject to a 7.5-foot Drainage and Utility easement on both side yards, but the north side contains an 18-inch drainage pipe that drains to a side street and the backyards of the subject address and adjacent lots. With the proposed encroachment into the drainage easement for the construction of the shed, a concern about the safety and maintenance of this culvert was discussed with the City s Public Works Director. It was determined that the pipe would be protected and could be removed and replaced utilizing the 3 plus feet on this property plus the remaining 7.5 feet on the adjacent lot. This would preserve a 10.5 foot wide open easement to access the culvert if needed. In discussions with the owner, a desire to have a 10-foot by 30-foot addition on the north side of the house with a roll-up door on the front side of the house was expressed. This door would allow access to lawn equipment and other various items. I stated that a rollup door would be perceived as a garage. Also the requested size of the addition would exceed the maximum size of 200 square feet for a shed, as defined in City Code. Another rule against the addition becoming a garage with roll-up door is the fact that a garage 4

5 would require a driveway. Since the lot is less than 100 feet wide (85 feet), only one driveway would be allowed for this residence. Another aspect of the City Code addressing accumulative impervious area on a residential lot was explored. The City Code allows a maximum of 40% impervious area in all single family residential zonings. The original residence was added on to in 2008, and a patio was added in the rear of the house in With these two additions and the original structure with driveway, the property is currently at 38.6% impervious area. The lot is 9,350 square feet and the remaining 1.4% equates to about 131 square feet of additional impervious area to reach the 40% maximum. Using this requirement, the shed addition would be within the maximum 200 square feet allowed by code for sheds. HARDSHIP CRITERIA: 1. Are there special conditions peculiar to the property?, the home is located in a subdivision with a Homeowner s Association (HOA) that does not allow sheds in the residential back yards. This is due to about half of the lots are on a water feature and the HOA is concerned that sheds would restrict visibility of the water feature. Because of this restriction, the only place to place a shed is in the side yards of the lots. 2. Do special conditions result from actions of the applicant? No. However, the property owner should have been aware of this restriction prior to the purchase of the property. 3. Will the granting of the variance give the applicant a special privilege denied to other properties in the same situation? No, other applicants in similar circumstances could request the same type of variance. 4. Would literal interpretation of the code deprive the applicant of rights commonly enjoyed by similar properties and work unnecessary and undue hardship on the applicant?, the improvement would benefit the homeowner in having a more useable space and the HOA requirement limits the location of the shed. 5. Is the variance requested the reasonable minimum?, the variance to the side setback would be necessary to construct a shed at this location because of the rear yard restrictions. However, the requested size (10 x30 ) will increase the percent impervious for the lot above the 40% allowed by City Code. 6. Would the granting of the variance be in harmony with the intent of the code and not injurious to the area or the public welfare?, a reasonable sized shed will meet the City Code requirements and the location will not negatively impact the existing drainage easement. This location will also meet the intent of the HOA of the subdivision. 5

6 RECOMMENDATION: Staff finds the variance request to allow construction of a shed on the north side of the residential structure reasonable. The proposed location will encroach about 5.5 feet into the 8.5-foot side yard setback and about 4.5-feet into the side yard drainage easement. The requirement to place the shed in the side yard is from the HOA as City Code allows sheds in both the side and rear yards in residential zonings. Staff agrees that the addition of a 130 square feet shed size is not a problem. However, staff has some leeway in this requirement and would be comfortable in allowing a 10-foot by 15-foot shed to be built in the proposed location. This would keep the impervious area still under 41%. Staff also feels that the owner s wish to have a roll-up door on the front of the shed facing the street unreasonable as it would allow the shed to be used for large trailered equipment that would impact the grass in the front of the house since a second driveway would not be permitted on this sized lot. Staff would support this variance with the conditions being the size be limited to 150 square feet and the use of a roll-up door be prohibited. Additionally, the City Attorney requested that if the Board grants the variance, the City will obtain a Hold Harmless Agreement from the property owner in case the City ever needs to enter that portion of the property and take the pipe out. Staff has received concerns from some of the adjacent property owners and enclosed in the supporting information are several notes to that effect. John Dillard stated that the property owner is present and asked if the Board had any questions. Vice-Chairman, Larry Robinson, asked what the setback is for an accessory structure that is attached to the home. John Dillard responded that the side setback for an accessory structure that is attached to the home is the same as a detached accessory structure, 8.5 feet. Dave Buckman asked if the owner is building a shed that would match the house and would the shed be located at the front plane of the home. John Dillard responded yes, the shed would match the primary structure and it has not been determined where exactly the shed will be located on the north side of the home. He added that the owner has a 30 foot long wall along the property line that the owner can place the shed anywhere along there. Mr. Dillard said that ultimately, the property owner has to go before the HOA Architectural Review Committee after he is heard by this Board. Dave Buckman asked if the property owner would need a permit to remove the trees that are located on that side of the yard. John Dillard responded that on the South side of the house, there are two large trees that the home owner does not want to remove. He added that on the North side where the shed is proposed, there is not a concern with the tree issue. Ari Morse noted that he knows the HOA says that nothing is allowed at the rear property, but is there a location in the rear that the shed could be located if it was placed up against the home. John Dillard responded that there is a 25 foot rear yard setback so it would be a very tight fit as the property owner already has a porch added to the back. 6

7 William Baranowski, 137 Deskin Drive, South Daytona, Florida, stated that he is aware that the HOA is not in favor of allowing a shed to be constructed and that there will be issues between himself and the Association. He noted that he wants to make the HOA happy and the City happy and will comply with whatever the City and HOA require him to do in order to put in the shed. Mr. Baranowski explained the he has a growing family and that they need more room. He added that his wife just purchased a new car and that they would like to be able to get the car into the garage. Mr. Baranowski said that because having a shed in the backyard is a sensitive issue with the HOA, he would like to construct a side addition that would not be heated or air conditioned, it would not be connected to the house by way of duct work or piping. Mr. Baranowski said that there are two permitted sheds in his neighborhood, that are detached, and were allowed due to the fact that there were different people on the HOA Board at that time. He alluded that whomever is on the Board at that time, determines whether or not a shed is allowed; he knew that if he submitted a request to have a shed installed, the current HOA Board members were not in favor of sheds and it would be denied. Mr. Baranowski stated that his neighbor on the north side, 133 Deskin Drive, has a privacy fence which will block the majority of the view of the addition/shed. He reiterated that he is willing to do whatever he needs to do at whatever the cost, to make the HOA Board and the City happy. Dave Buckman asked how high the shed/addition will be. responded that it will be the same height as the primary structure. William Baranowski Darrell Bofamy asked Mr. Baranowski if he had a design for the shed. Mr. Baranowski responded yes and presented his drawn rendering to the Board. Mr. Bofamy asked what Mr. Baranowski thought his chances would be of obtaining permission from the HOA Architectural Review Committee to build the structure. Mr. Baranowski said if the ARC believed the rumors flying around about the intent of the shed, then most likely he will have a zero chance. He noted that when he was visited by two of the women from the HOA, he attempted to show them the renderings for the shed and they had refused to look at them. Mr. Baranowski added that there is an HOA Board meeting on January 15, 2016, that he will attend and speak about how Orchards residents are treated and where they need to go as a community. John Dillard stated that the City wants to emphasize that a roll up door is only type of door that is prohibited. Vice-Chairman, Larry Robinson, asked if there are any comments from the audience for or against the shed. Sharon Polk, 133 Deskin Drive, South Daytona, Florida, stated that she objects to the variance request because it is not a minor change because it would bring Mr. 7

8 Baranowski s structure within three feet of her property. She added that the proximity of Mr. Baranowski s shed would have a negative impact on her property value and eventually a negative impact on the community. Ms. Polk explained that she does not want to look out her bedroom and see a concrete structure within ten feet of her house. She also said that by granting this variance, it would open up a can of worms for other owners to request variances and thereby altering the Orchards architectural design. Ms. Polk further stated that the property Mr. Baranowski wants to place the shed on is wet and with a structure ten feet out on the side of the house, water will drain onto her property. Suzanne Bernat, 82 Old Sunbeam Drive, South Daytona, Florida, stated that she is Treasurer of the HOA Board and that all the homes at The Orchards were built with at least 20 feet on either side of the house. She added that the intent is so residents do not feel that they are right on top of each other as one would experience with zero lot lines. Ms. Bernat stated that this has been a beautiful community for the last 25 years and that they want to keep it that way. She noted that she is aware that Mr. Baranowski needs more room and that he has enlarged his two-car garage and driveway to now fit three vehicles, he has added a patio in the back, and has extended the back; she does not know how much more he can continue to build on the lot. Ms. Bernat said that the HOA is not in favor of this shed and Mr. Baranowski should have brought this to the HOA first in order to save him some time and money. Ari Morse asked Ms. Bernat if Mr. Baranowski s driveway, garage, and patio additions were tastefully done. Ms. Bernat responded yes. Dave Buckman asked Sharon Polk if her privacy fence is even with Mr. Baranowski s fence. Ms. Polk responded yes. Darrel Bofamy asked if there is a swale between the homes of Ms. Polk and Mr. Baranowski. Ms. Polk responded that there is a kind of dip. John Dillard confirmed that there is a slight swale at that location. Board Member Jerry Masters asked Ms. Polk if she had any documentation that would verify her claim that the shed would negatively impact her property values or anyone else s; and, is there anything in The Orchards HOA guidelines that prohibit this type of structure on the side of the house. Ms. Polk responded no, she does not have any documentation that states that the shed would negatively impact her property values; and, there are HOA setback guidelines that do not allow what Mr. Baranowski wants to build. Dave Buckman asked Ms. Polk how many other homeowners in the The Orchards have a shed on the side of their home. Ms. Polk responded none since it would infringe on the property of the adjacent homes. Joanne Stygles, 177 Deskin Drive, South Daytona, Florida, stated that she is secretary of the HOA and that there are two sheds in The Orchards. She noted that one was installed in 1993, which was grandfathered in before any of the HOA documentations were done; 8

9 the other was installed at the side of the house at the time of construction of the house and and is 27 square feet. Ms. Stygles noted that The Orchards documents do not necessarily say that one cannot have a shed, they say one cannot have a detached shed. She added that the documents also say that the HOA wants a structure that would fit in with the building and that it has a 7.5 foot easement restriction on the side of each of the structures. Ms. Stygles stated that if Mr. Baranowski had come to the HOA Board first and said that he wanted to build a shed, rather than pursuing this objective thinking that the HOA Board would automatically say no, the Board would have worked something out with him on how to try to accomplish this goal. Ms. Stygles elaborated that the Board heard about the January Adjustment and Appeals meeting and Mr. Baranowski s request to be heard on Christmas Eve. She noted that the HOA Board was stunned by this news and unanimously agreed that the shed construction is not something the Board wants to happen. Ms. Stygles said that an attempt was made by some Board Members to talk to Mr. Baranowski but it did not turn out well. Ms. Stygles stated that the HOA is interested in reviewing Mr. Baranowski s shed proposal. She noted that Mr. Baranowski has come to the Board in the past prior to beginning any construction on the property and the HOA has worked with him. Ms. Stygles reiterated that the Board opposes this shed because they do not think that it would be good for the neighborhood. She said that the Board is not telling Mr. Baranowski no, you cannot have a shed, what they are saying is that he must come and work with the Board in order to do something like that. Dave Buckman asked Ms. Stygles that once the HOA Board had heard what Mr. Baranowski wanted to do, why didn t they set up an emergency meeting requesting Mr. Baranowski s presence in order to find out exactly what his intentions are regarding the shed. Ms. Stygles responded that when the Board learned of the scheduled A & A meeting for the shed variance on December 24, 2015, not everyone was available due to the Holiday. Vice-Chairman, Larry Robinson, noted that Ms. Stygles said that the HOA Board would like to work with Mr. Baranowski to come to a solution and asked what the Board would envision a solution to be. Joanne Stygles says the HOA Board has no idea what a solution could be until Mr. Baranowski shows them what he wants to do. She added Mr. Baranowsi is here before the A & A Board showing and explaining his plans before he has even talked with HOA Board. Jerry Masters commented that Ms. Stygles statement that, if Mr. Baranowski had come before the HOA Board first, they could have worked something out, but because the HOA Board did not hear about the shed until the variance meeting was scheduled, the HOA Board will not let the shed be constructed, sounds like sour grapes. Joanne Stygles stated that she doesn t mean it as sour grapes but in the sense that between the timing of the A & A meeting and when the HOA Board was notified about it, when was the HOA Board supposed to react or respond to Mr. Baranowski s request. 9

10 Darrell Bofamy noted that no matter what the HOA Board and Mr. Baranowski decide, the variance request would have to come before the A & A Board, so it seems that coming before the A & A Board is the first step. Jerry Masters agreed and stated that it makes no sense for Mr. Baranowski to come to the HOA Board first since the first thing he needs to know is whether or not he can obtain a variance. Ms. Stygles responded that at the same time, the HOA Board might have been able to support Mr. Baranowski; when he built the addition to his house, he brought it to the HOA Board first, received approval from the ARC and then sought the variance from the A & A Board. Ms. Stygles reiterated that the reason the HOA Board does not support Mr. Baranowski s shed is because he is asking to encroach upon the 7.5 foot easement towards Ms. Polk s property which ultimately goes against The Orchards Covenance. John Dillard stated that according to the City Attorney, the City can work with HOA s but it is not responsible for their approval; the City only follows what its Ordinance says. The City cannot enforce HOA rules, that is their job. He noted that he has spoken with some of the Association that is present here tonight, and they said that they did not allow any sheds at the rear yard. Mr. Dillard said the variance request was applied fort on December 14, 2015, so it was already on the January agenda weeks before the HOA Board had heard of what Mr. Baranowski intended to do. Vice-Chairman, Larry Robinson, asked that if the A & A Board approves the variance request, does he still require HOA approval. John Dillard responded absolutely, they overrule anything that the Board would grant. Vice-Chairman Robinson asked if there were any other comments or questions from the Board. Noting that there were none, he asked for a motion from the Board. Ari Morse made a motion, with the caveats that the property owner signs a Hold- Harmless agreement, a roll-up door is prohibited, the shed cannot exceed 150 square feet, and that it must architecturally match the primary structure, seconded by David Buckman, to approve the variance request. ROLL CALL VOTE: Darrell Bofamy Gregg Willard Dave Buckman Larry Robinson Ari Morse Jerry Masters 10

11 There being no further business, the meeting adjourned at 7:10 p.m. Larry Robinson, Vice-Chairman Heather Lill, Recording Secretary 11