Finnerty, Shawn & Lori Water Front Setback

Transcription

1 BONNER COUNTY PLANNING DEPARTMENT BOARD OF COUNTY COMMISSIONERS STAFF REPORT FOR JANUARY 10, 2018 Project Name: Finnerty, Shawn & Lori Water Front Setback File Number, Type: FILE #V492-17, Variance Request Request: The applicant is requesting a 1.5-foot water front setback where 40-feet is required; allowing for the placement of a storage shed. Legal Description: Location: Lutton Lake Lots: Lot 5A Replat, Section 2, Township 56N, Range 1E The property is located off of La Vita Bella Lane stemming from Red Fir Road, ±3 miles South of the City of Hope, Idaho Parcel #: Parcel Size: Applicant: Project Representative: RP A0A ±0.94 acres Shawn & Lori Finnerty 108 La Vita Bella Lane Hope, Idaho N/A Property owner: Same as applicant. Application filed: August 3, 2017 Notice provided Mail: October 6 and December 15, 2017 Site Posting: October 23, 2017 and January Published in newspaper: October 11 and December 19, 2017 File #V January 10, 201 Page 1 of 8

2 Aerial View Project summary: The applicant is requesting a 1.5-foot water front setback where 40-feet is required; allowing for the placement of a storage shed. The applicant states that a variance is necessary because the nature of the land does not drain well and freezes during winter months. The area that the structure would exist on is capable of supporting the structure. The structure is to be used as a storage shed that would secure recreational toys and equipment. BCRC establishes a hearing examiner in accordance with Idaho Code section and assigns variances to the examiner. BCRC section (B) the Planning and Zoning Commission shall hear the files in the absence of the hearing examiner. Applicable laws: The following sections of BCRC, Title 12, apply to this project: BCRC , Density and dimensional standards for the Recreational zoning district BCRC , Variance standards BCRC , et seq., Development standards, if affected by variance BCRC , Variances, general provisions, application, standards, procedures BCRC , Shoreline setbacks File #V January 10, 201 Page 2 of 8

3 Background: A. Site data: The project site is located on Lot 5A Replat of Luttons Lake Lots, Section 2, Township 56 North, Range 01 East, Boise Meridian, Bonner County, Idaho. Abutting land uses is resort community. The subject property is zoned Recreation. Lot 5A Replat has frontage on Lake Pend Oreille. B. Access: Access is provided by La Vita Bella Lane, a public road within a 60 foot wide public right of way. C. Environmental factors: The site has waterfront access to Lake Pend Oreille; a portion lying in a flood hazard zone (Firm panel: 16017C0981E, Zone: AE). The site does not contain mapped wetlands. The site does contain significant slope 15-29%. The property is identified as an Elk wintering area on the Bonner County GIS Mapping application. D. Services: Water and septic are provided by individual systems. The site lies within the Samowen Fire District, and the Lake Pend Oreille School District (#84). Power is provided to the property via Avista. E. Comprehensive Plan, Zoning and Current Land Use Compass Zoning Current Land Use & Density Site Rec Platted Lakefront Lot, 0.94 acres North Lake Lake Pend Oreille East Rec Platted Lakefront Lot, 2.56 acres South R-5 Forest Land West Rec Platted lake front lot, 4.34 acres F. Standards review BCRC specifies that Staff, the commission and/or board shall review the particular facts and circumstances of each proposal submitted and shall find adequate evidence showing that: A. Conditions apply to the property that do not apply generally to other properties in the same zone or vicinity, which conditions are a result of lot size, shape, topography, or other circumstances over which the applicant has no control. Applicant: The hardship is the natural downhill slope of our parcel. The water drains from the top of the peninsula down the West side of our lot. This is the only flat area we have found that drains well. Staff: Site visit confirms steep grades surrounding the structure s pad. The slope that exists on site slopes towards the water and is within the 15-29% grade shown by USGS data. If the applicant is to build using the 40 foot water front setback, the potential need for landscaping and runoff management is present. File #V January 10, 201 Page 3 of 8

4 B. Special conditions and circumstances do not result from the actions of the applicant. Applicant: The parcel is not unbuildable but the nature of the use of the residence is summer fun. Kayaks, paddle boards, floating tubes, noodles, fins, masks, fishing poles, folding chairs, etc. All of this is sitting along the edge of the lake. Storms come and blow the things away; recently neighbors have had things taken. The overall look is much more conducive to the two homes we live next to. We have four kids so lots of floaties. Staff: The applicant(s) were issued BLP on May 24, The site plan for the single family dwelling in the above mentioned permit shows the greatest architectural projection extending to the minimum of 40 foot water front setback. The building envelope that exists, and existed at the time of construction, was filled by the dwelling footprint in a way that would not allow for the placement of the storage shed. C. The granting of the variance is not in conflict with the public interest in that it will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity of the subject parcel or lot. (Ord. 559, ) Applicant: Approving this variance will not be a potential obstruction. It is on private property; there are not easements or public access. The shed although painted to match our home is temporary in nature; there is no foundation of any kind. It is a cedar shed we bought along Highway 2 with one access door. I believe it is an improvement. We did not change the landscape to accommodate this shed at all. Staff: Conflict of public interest is mitigated through the planning department s agency review process and by public notification. During the agency review period County, State and Federal regulatory agencies were notified of the project and were permitted to comment. As noted in section I. below, there were no negative agency comments and as such Bonner County Planning assumes there are no objections to the project. As noted by Section J, there has been no public comment. Staff (Appeal Request): There was one letter, attached, received from the neighbor concerned with the aesthetics of a storage shed on the lake. The neighbor also noted concern with setting precedent. There was no additional public comment at the Planning Commission hearing other than the applicant. G. Stormwater plan Stormwater is not required per applicability standards (BCRC ). H. Land capability report A land capability report is not required per BCRC J : Application, Contents: J. A land capability report shall not be required to be submitted for proposals in which all of the following apply : 1. No additional "impervious surface", as defined in section of this title, is created; 2. No additional site disturbance is proposed and no additional development will occur on slopes fifteen percent (15%) or greater; File #V January 10, 201 Page 4 of 8

5 3. No additional sewage disposal services are associated with the proposal; 4. The area in which the proposed use will occur is not located within a 100-year floodplain as determined from the FEMA flood insurance rate maps; or is not located within a mapped wetland as determined from the U.S. fish and wildlife service national wetland inventory maps; or as determined in writing by the U.S. army corps of engineers; 5. Existing structures or uses involved with the proposal have not had a detrimental effect on the subject land and adjacent lands with regard to floods, sewage, drainage, erosion, sedimentation, or geological or surface slippage. I. Agency Review The application was routed to the follow agencies for comment on September 8, 2017: Panhandle Health District Bonner County Road Dept. Samowen Fire District School District #84 Dept. of Fish and Game Avista Utility Company Dept. of Water Resources Dept. of Lands, Navigable waters Dept. of Lands (Sandpoint) Army Corp (Coeur d Alene) Dept. of Environmental Quality The following agencies replied with NO COMMENT : Bonner County Road Dept. Dept. of Lands (Sandpoint) Panhandle Health District Department of Environmental Quality All other agencies provided no response; as such staff concludes that there are no objections to the project. J. No public comments were received a time of preparation of staff report. Staff (Appeal Request): The only public comment was received prior to the Planning Commission hearing and is included with the packet of information. K. Planning Commission Hearing: The Planning Commission held a public hearing on this variance on November 2, The motion was made to approve this variance while stating the following conclusions: Conclusion 1 Conditions apply to the property that do not apply generally to other properties in the same zone or vicinity, which conditions are a result of lot size, shape, topography, or other circumstances over which the applicant has no control. Conclusion 2 Special conditions and circumstances do result from the actions of the applicant. Conclusion 3 The granting of the variance is not in conflict with the public interest in that it will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity of the subject parcel or lot. (Ord 559, ) File #V January 10, 201 Page 5 of 8

6 The Planning Commission was made aware of Bonner County Revised Code which requires To grant a variance, the hearing examiner or the governing body must find adequate evidence showing that the three standards listed above are met. The concern from staff that recommending approval while stating decent from one of the standards was likely not appropriate and easily appealable. However the motion moved forward with a three-three vote. This required the chair to step down and break the tie. The chair voted nay. The motion failed with a three-four vote. There was not another motion made and the chair moved on with the agenda. Staff analysis: BCRC requires a 40-foot water front setback; the applicant is requesting variance for a 1.5-foot water front setback. Bonner County Revised Code section (A) requires that unique conditions apply to the property due to size shape topography or circumstances that are outside the control of the applicant(s), the planning department concludes this standard is met because the applicant(s) have no control over the natural slope of the landscape. BCRC (B) requires that special conditions and circumstances do not result from the actions of the applicant(s), the planning department concludes this standard is not met because the applicant(s) filled the allotted buildable space with the construction of the single family dwelling in 2007 (See BLP ). BCRC (C) requires that the granting of the variance is not in conflict with the public interest. The planning department concludes this standard is met because there were no agency or public comments in objection to the project at the time of this staff report. Based upon the evidence collected, coupled with no agency or public having submitted adverse comments, final decision rests with the governing body after the completion of the public hearing and consideration of all relevant oral and written testimony and evidence. Staff analysis (Appeal Request): The applicant state in the appeal request that the request for the variance and the location of the shed is for the security and containment of recreational equipment. The applicant continues: given the natural downhill grade of the land, moving the shed to the next flat area up the hill will block the view of our neighbor s family room window. Currently as the shed is situated now, as you have seen, it is tucked in and hardly noticeable. The Commission must decide that this request meets the three standards required for a variance: BCRC (A): Conditions apply to the property that do not apply generally to other properties in the same zone or vicinity, which conditions are a result of lot size, shape, topography, or other circumstances over which the applicant has no control. (B) Special conditions and circumstances do not result from the actions of the applicant. (C) The granting of the variance is not in conflict with the public interest in that it will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity of the subject parcel or lot. (Ord. 559, ) Ultimately, the question before the Commission is, Does the affirming of one or two of the standards also affirm the third standard? For example, if the request meets the requirement that due to shape, topography or other circumstance, then standard B is affirmed as the action is not created by the applicant. File #V January 10, 201 Page 6 of 8

7 Staff agrees that standards A and C have been met. The challenge in the analysis is Standard B. This is because the applicant chose to place the storage unit in this location prior to obtaining a variance. In this situation, the applicant did cause the violation of the ordinance, but asked in advance of placing the structure, would meeting standards A and C thereby justify the actions of the applicant and affirm standard B? Staff confirms along with BCRC : In order to grant a variance, the governing body must find adequate evidence showing that the three standards have been met. Based upon the evidence collected, coupled with no agency or public having submitted adverse comments, final decision rests with the governing body after the completion of the public hearing and consideration of all relevant oral and written testimony and evidence. Planner s Initials: SR/HMO Date:_ Motion by the governing body: PLANNING COMMISSION MOTION TO APPROVE: I move to approve this project FILE V492-17, which allows for a 1.5 foot water front setback where 40 feet is required. Finding that it is in accord with the Bonner County Revised Code as enumerated in the following conclusions of law. The decision is based upon the evidence submitted up to the time the Staff Report was prepared and testimony received at this hearing. I further move to adopt the following findings of fact and conclusions of law as written (or as amended). The action that could be taken to obtain the variance is to complete the Conditions of Approval as adopted. This action does not result in a taking of private property. MOTION TO DENY: I move for denial of this project FILE V492-17, which allows for a 1.5 foot water front setback where 40 feet is required. Finding that it is NOT in accord with the Bonner County Revised Code as enumerated in the following conclusions of law. The decision is based upon the evidence submitted up to the time the Staff Report was prepared and testimony received at this hearing. I further move to adopt the following findings of fact and conclusions of law as written (or as amended). This action does not result in a taking of private property. The action that could be taken, if any, to obtain the variance is to: 1) File a new application with the Planning Department and meet the standards required by Bonner County Revised Code; or 2) Appeal the Planning and Zoning Commission's decision to the County Commissioners. Conclusions of Law: Based upon the findings of fact, the following conclusions of law are adopted: This proposal was reviewed for compliance with the criteria and standards set forth at Sections and , Bonner County Revised Code, storm water management criteria and standards set forth in Chapter 7, Title 12, Bonner County Revised Code, and variance criteria and standards set forth at Section , Idaho Code. File #V January 10, 201 Page 7 of 8

8 Conclusion 1 Conditions apply to the property that do not apply generally to other properties in the same zone or vicinity, which conditions are a result of lot size, shape, topography, or other circumstances over which the applicant has no control. Conclusion 2 Special conditions and circumstances do not result from the actions of the applicant. Conclusion 3 The granting of the variance is not in conflict with the public interest in that it will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity of the subject parcel or lot. (Ord 559, ) Findings of Fact 1. Slopes 15-29% are present on site 2. The applicants were permitted construction of a single family dwelling 40-feet from the shoreline May 24, The new structure foot print will be approximately 140 square feet. 4. The new structure will be used as a storage shed. 5. The location of the structure lies outside flood hazard zones. 6. No new impervious surface is created as the structure is located on a previously established stone patio. Conditions of approval: A-1 The use shall be developed and shall be operated in accordance with the approved site plan. A-2 The use shall remain as a storage shed as permitted in this variance and shall never be used as living space or have plumbing added to the structure. A-3 The variance shall expire if not issued within two (2) calendar years from the date of approval, or once issued, if the use has not commenced within two (2) calendar years from the date of issuance. At any time prior to the expiration date of the variance, the applicant may make a written request to the Planning Director for an extension of the variance for a period up to two (2) years. The Planning and Zoning Commission may consider such request for extension at any public hearing. The extension request must be approved or denied prior to the expiration date of the variance. The complete file is available for review in the Planning Department, 1500 Highway 2, Suite #208, Sandpoint, ID. Staff reports are available online one week before the hearing at Bonner County Revised Code (BCRC) is available at the Planning Department or online. Attachments; Legal Notice Site plan received from Yvonne Blalack. Posted to Site plan Application File #V January 10, 201 Page 8 of 8