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HomeMy WebLinkAboutVA200800006 Review Comments 2008-06-03 (2) , f STAFF PERSON: Amelia McCulley PUBLIC HEARING: June 3, 2008 STAFF REPORT VA-2008-006 OWNER / APPLICANT: Lamont Breckenridge TAX MAP / PARCEL: 19/8B ZONING: RA, Rural Areas ACREAGE: 1 .265 acres LOCATION: 271 Simmons Gap Road (Rt. 663) on the west side of the road. TECHNICAL REQUEST AND EXPLANATION: The applicant requests relief from Section 10.4 Rural Areas Area and Bulk Regulations to reduce the side setback from 25 to 18 feet, a variance of 7 feet. Approval of this variance will allow the house to remain as it was built without an approved building permit. The existing house is 28 feet by 46 feet or 2,576 square feet. It is two stories or one story with a walk-out basement. RELEVANT HISTORY: A house was built on the property in 1953. It consisted of 1 ,680 finished square feet. That house was located significantly closer to the road and stream (which parallels the road) than the current house. The applicant applied for a building permit to demolish the old house and rebuild it on the same footprint. The building permit to rebuild the house has not been issued. In January, 2008, the applicant met with staff in a regular preapplication conference to discuss his plans to rebuild the house. In this meeting, staff discussed the fact that demolishing the house which was nonconforming to setbacks and stream buffer requirements would lose any legal nonconformity and therefore reconstruction in the same location would not be permitted. Staff further discussed with the applicant the fact that building setbacks and Water Protection Ordinance (WPO) buffers would need to be met for the construction of a new house. VA-2008-006 2 June 3, 2008 At some point after the preapplication conference, the new house was constructed prior to and without the County's issuance of a building permit to allow the construction. The house is located in the side yard setback and partially in the WPO buffer. The house is currently constructed to the point of a completed roof, siding and the like (see photos). When staff discovered that the house was completed without approval of a building permit and within the setbacks, the County issued both a Building Code STOP WORK Order and a Notice of Zoning Violation. We informed the applicant that he needed to amend his permit to reflect what has been built. Before the house can be approved as-built, approval of a variance and of a WPO buffer encroachment are necessary. Staff can not recall any other situation (in 19 years) in which a house which was already built and needed a variance: 1)was built AFTER staff discussed County requirements such as setbacks and 2) was built BEFORE approval of a building permit to lawfully allow the construction. The applicant will argue that he was not responsible and that his prior contractor is responsible for this mistake. As this Board knows, the property owner is responsible for what happens (what is built, what activities occur, etc.) on his property even if the work is done by others. PROPERTY DESCRIPTION AND QUALIFYING CONDITIONS: This property is not exceptional small even though it is less than the 2 acres required for a new lot in the Rural Areas. It is somewhat L-shaped; although there is sufficient area of necessary width to allow construction of a house which meets all setbacks. There is a stream and associated 100 ft buffer which runs parallel to the road on this property. There are critical slopes on much of the property which lies outside the WPO buffer. However, the Zoning Ordinance (Section 4.2.5) provides an exemption for existing lots to allow construction on critical slopes when there is no building site outside them. In summary, despite the lot size, lot shape and presence of WPO buffer, a house which meets all building setbacks could be constructed. The applicant has the option of correcting the setback problem by acquiring or trading a small piece of the adjoining property. Until this option is pursued, staff is of the opinion that this variance is premature. APPLICANT'S JUSTIFICATION AND STAFF COMMENT: A review of the variance criteria provided by the applicant and comments by staff follows: VA-2008-006 3 June 3, 2008 Hardship Staff comments are written in italics and follow the applicant's comments. The applicant notes that the variance is necessary: • Foundation poured by contractor that has since been released from project. • Strict application of this ordinance would require me to have to move entire foundation which I can not financially afford at this point in the project. The contractor will not refund the money for his error. I have to pick up the project from this point and complete construction. Of all the cases staff can recall, this one stands out as a prime example of a self- imposed hardship. The applicant chose to build the house in this location despite staff's advice and without the necessary approval of a building permit. The fact that there is a financial hardship associated with fixing the setback problem does not qualify as an undue hardship. This is particularly the case when the basis of the hardship is self-imposed and not the result of staff error or some other legitimate cause. A house could have been built without the need for a variance. 1. The applicant has not provided evidence that the strict application of the ordinance would produce undue hardship. Uniqueness of Hardship The applicant notes: • The lot is nonconforming. • It is the only lot of this type existing in the area. • I in good faith hired a contractor which I thought would follow all County ordinance in constructing my home. Because there is not an undue hardship, the hardship is not unique. In fact, the most unique aspect of this application is that any hardship is self-imposed. 2. The applicant has not provided evidence that such hardship is not shared generally by other properties in the same zoning district and the same vicinity. VA-2008-006 4 June 3, 2008 Impact on Character of the Area The applicant offers: • The authorization of such variance will not be detriment to any adjacent properties as the closest property line is forest with no home near the boundary requiring the variance. There is no home visible from this house on the adjoining property. The adjoining property is wooded rolling land going up from the stream along the road frontage. There is no clear detrimental impact on the character of the area resulting from this setback encroachment. 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 only one of the three criteria for approval has / have been met, staff must recommend denial of this variance request. Staff continues to maintain that this variance request is premature until the applicant has attempted to resolve the setback with a property exchange. This situation represents a flagrant disregard of governmental regulation and permitting requirements. In at least 19 years, staff can not recall such an egregious case. Approval of this variance will send the wrong message to both staff and the public. Attachments: photos 41 .1 ,;V '': .-% • f 4 ". i'1 !' ": ifor'r: .4.' , Pi , ..t,.•,,,,. ': , ..,V e• d'. c, , 441e" .:li: .4.' . - .. ' \,, * ' "?:,,;.1 .,,--sit 1:...' , ' ':01:•'?Id:IfilaR,"; ''.. .. •41:14- . „ ' •-.4.. It i .:Pr, ....'- 44 f4..i :4 :4‘', A. 4--- - -. ., 'r . . 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A self- inflicted hardship typically exists when an owner violates a provision of the zoning ordinance and then seeks a variance to provide relief from the unlawful act.Spence v. Board of Zoning Appeals for City of Virginia Beach, 255 Va. 116(1998). That is exactly what happened in this case. An undue hardship may not be self-inflicted.Steele v. Fluvanna County Board of Zoning Appeals,246 Va. 502(1993). In Steele,the owner's builder relied on a statement by the homeowners' association that the builder could assume the property lines were indicated by certain utility markers. In fact,the utility markers were not on the property lines and the house,when constructed, was only 8 inches from the property line instead of the minimum 10-foot side yard setback required by the Fluvanna County Zoning Ordinance. The Fluvanna County BZA granted the variance and the Circuit Court affirmed. On appeal,the owners claimed that the utility markers were misplaced and that the homeowners' association misinformed the builder regarding the owner's right to rely on the accuracy of the location of those markers. In reversing the BZA and the Circuit Court,the Virginia Supreme Court first held that there was no natural physical characteristic of the property that created an undue hardship,and then held: Second,the evidence demonstrates that the hardship, if any, was self-inflicted.The placement of the improvements on the property was within the control of the Garretts and their contractor, Raintree. As this Court stated in Alleghany Enterprises, Inc. v. Board of Zoning Appeals, 217 Va. 64,69, 225 S.E.2d 383, 386(1976), a self-inflicted hardship,whether deliberately or ignorantly incurred, provides no basis for the granting of a variance. See also Board of Zoning Appeals v. Combs,200 Va. 471,477-78, 106 S.E. 755, 759(1959). The Steele court went on to note that the extraordinary conditions of the property define"undue hardship" and that these conditions demonstrated "the General Assembly's intent that variances be granted only where application of zoning restrictions would appear to be constitutionally impermissible. . . . Manifestly, a self-inflicted hardship cannot be the cause of a constitutional deprivation of a landowner's rights." Any hardship in this case was self-inflicted. As the staff report states,a"house could have been built without the need for a variance,"but the"applicant chose to build the house in this location despite staff's advice and without the necessary approval of a building permit."Staff Report,page 3. As the Steele case instructs,the applicant also cannot rely on any alleged error of his contractor to justify the granting of a variance in this case. Cc: Mr. Breckenridge Vanance schedule meeting 6/3/2UU8 Page 1 of 1 Ana Kilmer From: Amelia McCulley Sent: Friday, May 30, 2008 10:24 AM To: Ana Kilmer Subject: Variance schedule meeting 6/3/2008 Please put in the file. Thanks. From: Breckenridge, Lamont [mailto:LBreckenridge©BBandT.com] Sent: Friday, May 30, 2008 10:19 AM To: Amelia McCulley Subject: Variance schedule meeting 6/3/2008 Please defer the June 3, 2008 appt per our conversation. If there are questions, please give me a call. Thanks Lamont Breckenridge Financial Center Leader II (434)985-3508 Ireckenridge@bbandt.com 5/30/2008