HomeMy WebLinkAboutVA200600005 Review Comments 2006-06-06 STAFF PERSON: Jan Sprinkle
PUBLIC HEARING: June 6, 2006
STAFF REPORT VA-2006-005
OWNERS/APPLICANTS: Kevin or Julie Oh
TAX MAP/PARCEL: 61A/05-18
ZONING: R-4, Residential
ACREAGE: 2400sf
LOCATION: 960 Towne Lane in the Village Square subdivision on the
west side of Rio Road
TECHNICAL REQUEST AND EXPLANATION:
The applicants request relief from Section 15.3 to reduce the rear setback from 20 feet
to 17 feet. The applicants want to allow their existing deck to remain as built under
building permit 1995-01244SFA. Therefore, the variance is for 3 feet.
RELEVANT HISTORY:
The Village Square subdivision was approved by the County in 1985.
PROPERTY DESCRIPTION AND QUALIFYING CONDITIONS:
This variance request is one of three requests being heard today that are essentially the
same. There are three townhouses in one attached structure and all have decks on the
rear. The decks are on the second story, are eight feet wide and are cantilevered six
feet out from the back wall. The decks encroach two to three feet into the 20-foot rear
setback. Therefore, the body of these reports is the same and is repeated in each file
with only minor changes such as the names. (The others files are VA-2006-006 and
VA-2006-007.)
These three homes were constructed under County building permits which were all
issued in late 1995. The computer record of building permits indicates that the situation
is the same—no certificate of occupancy (CO) was issued for any of the three. One
building permit file shows that the preliminary zoning (PZ) was approved. The other is
incomplete. One of the files cannot be located at this time. However, since the footprint
of the three-unit structure would not have included the cantilevered decks, it is possible
that the other PZ's were approved. The final building inspections were all done in late
1996 and early 1997. However, when the final zonings (FZ) were requested at the
same time as the final building inspections, they were all denied due to the deck
encroachment. Without approved FZ's, no CO could be issued for any of the three
houses.
These units were apparently rented out by the builder (or a management company)
initially. Lot 19 was first sold to an individual in late 1997 and then again in 2002 to the
VA 2006-005, Oh Page 2 June 6, 2006
current owner. Both lots 18 and 20 remained with Village Square, LLC until they were
sold in 2004 to the current owners. As each home was sold, the unsuspecting
homeowners took possession, moved in, and neither the County nor the owners took
any action to discover that there was no CO. It is likely that tenants and homeowners
have been living in these units without any final approvals from the County since early
1997—a total of nine years. Although a deck is not necessary for reasonable use to
exist, it does seem unreasonable to remove the use that these homeowners thought
they had purchased and have enjoyed for some nine years. The County has
"overlooked" upholding the ordinance for the last nine years. It seems more reasonable
now to make the situation legal rather than more difficult.
One of the powers and duties of the Board of Zoning Appeals (granted in Section 34.2
of the zoning ordinance) allows that a variance may be authorized as follows:
. . in specific cases such variance from the terms of this ordinance as will not
be contrary to the public interest, when owing to special conditions a literal
enforcement of the provision will result in unnecessary hardship;provided that
the spirit of the ordinance shall be observed and substantial justice done, as
follows: When a property owner can show that his property was acquired in good
faith and where, by. . . other extraordinary situation . . . the strict application of
the terms of this ordinance would effectively prohibit or unreasonably restrict the
use of the property or where the board is satisfied, upon the evidence heard by it,
that the granting of such variance will alleviate a clearly demonstrable hardship
approaching confiscation, as distinguished from a special privilege or
convenience sought by the applicant, provided that all variances shall be in
harmony with the intended spirit and purpose of this ordinance."
These are the infrequent cases where the "other extraordinary situation" comes into
play. It is extraordinary that neither the County nor the owners of these three homes
have in the last nine years done anything about the fact that a certificate of occupancy
was never issued and people have been occupying all three homes. Staff opinion is
that the strict application of the ordinance would unreasonably restrict the use of the
property. If variances are not granted for these decks, these owners will have to
remove or at least partly remove the decks that they bought in good faith and have used
for the period they have lived in or owned these homes. We find that granting the
variance for these three parcels will alleviate the hardships and will be in harmony with
the intended spirit and purpose of the ordinance.
This hardship is not shared generally by other properties in the same zoning district and
the same vicinity. The County does not make such errors often and rarely does it take
nine years to discover and demand that the owners find a remedy. The hardship here is
due to reasons that we may never understand, but we do have standard operating
procedures in place now (and have had for many years) that should prevent such an
occurrence in the future. There may be other similar situations, but they should be few
enough to be addressed on a case-by-case basis.
VA 2006-005, Oh Page 3 June 6, 2006
The general character of this area will not be changed by allowing these decks to
remain. This is a subdivision of sixty-four townhouses and twenty-five single family
detached homes. The Rio Road area of R-4 and R-6 zoning is full of apartments, town
homes and single-family detached dwellings, many with patios and decks. Staff opinion
is that granting the variance to allow these three decks to remain as they have been for
nine years will not change the character of the district.
APPLICANT'S JUSTIFICATION AND STAFF COMMENT:
A review of the variance criteria provided by the applicant and comments by staff
follows: (Staff comments are written in italics and follow the applicant's comments.)
Hardship
The applicant notes that the variance is necessary because:
• This condition has existed since our townhome was built in 1997. We purchased the
property in 2004 not knowing that a certificate of occupancy was never issued by the
county. The county realized there was no CO and notified us in March 2006.
As stated in this report, staff agrees with the applicant.
1. The applicant has provided evidence that the strict application of the
ordinance would produce undue hardship.
Uniqueness of Hardship
The applicant notes:
• This situation is unique to the three units in our building as our units are the only
ones with basements and decks. All other units in Village Square Phase III have
ground level patios which do not have to meet setback requirements. This situation
was created by the builder and allowed to continue by the county since the units
were built.
As previously noted, staff agrees that this is a unique situation that needs no general
ordinance amendment.
2. The applicant has provided evidence that such hardship is not shared
generally by other properties in the same zoning district and the same
vicinity.
Impact on Character of the Area
The applicant offers:
VA 2006-005, Oh Page 4 June 6, 2006
• This property has been like this for nine years and granting the variance will not
change the character of the district. The character of the district would change if the
variance is not granted and we have to cut off a portion of the deck, as it will then be
out of proportion with the structure.
Staff is of the opinion that the variance requested will not negatively impact the
character of the area.
3. The applicant has provided evidence that the authorization of such
variance will not be of substantial detriment to adjacent property and that the
character of the district will not be changed by the granting of the variance.
STAFF RECOMMENDATION:
Since all of the three criteria for approval have been met, staff recommends approval of
this request.
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