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HomeMy WebLinkAboutLOD201700004 Letter of Determination 2017-02-14SOF AL O® 1 � �'IRGIN�P COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville. Virginia 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 February 14, 2017 David and Dorothy Hesselton c/o Mary Cockerille Garriss 113 Deerwood Road Charlottesville, VA 22911 RE: LOD2017-00004 - OFFICIAL DETERMINATION of Applicable Front Yard Setback at 113 Deerwood Road Dear Mr. and Mrs. Hesselton, This letter addresses a proposed carport within the front yard setback of 113 Deerwood Road (the "Property"). As illustrated in Attachment A, the carport is proposed to be 22 feet 8 inches deep by 23 feet 9 inches wide in order to accommodate adequate parking for two cars with enough space for a wheelchair to be removed from the rear of a vehicle and to circulate under cover around the parked cars. Albemarle County Code § 18-4.19 establishes the closest structure within 500 feet of the lot in each direction along the street fronted as the front yard setback in existing neighborhoods. The closest existing structure within 500 feet along Deerwood Road is a carport located at 115 Deerwood Road located 22 feet from the edge of the right-of-way. That carport establishes a 22 foot front yard setback for the Property. The closest corner of your home is situated 32 feet from the front property line. As proposed, your new carport would encroach 12 feet 8 inches into the 22 foot front yard setback. Albemarle County Code § 18-4.11.1 permits architectural features such as a carport to encroach up to 4 feet into any required yard. Notwithstanding the typically -required setbacks, Albemarle County Code § 18-4.9 provides, "ramps or other modifications to a lot or structure, which are the minimum required under the Americans with Disabilities Act to serve handicapped persons, are authorized in all zoning districts." Under Title II of the American Disabilities Act (ADA), localities are to make "reasonable modifications" in policies and procedures as necessary to avoid discrimination based on a disability. Similarly, under the Fair Housing Act (FHA), discrimination can include "a refusal to make reasonable accommodations in rules, policies, practices, or services, when accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." Pursuant to Albemarle County Code § 18-4.9, it is my determination that the carport may be permitted as close as 9 feet 4 inches from the edge of the right-of-way in order to accommodate Mrs. Hesselton, the disabled individual currently living in the home. The carport may be permitted in that location unless or until the existing residence is demolished, at which point any This is in response to the Summary submitted by Matthew Hart and Chinny Sharma on Jan 10, 2017 I, Mary Cockerille Garriss, am writing on behalf of my mother, Dorothy Hesselton, the individual whose handicap has led us to pursue special consideration under ADA and FHA laws. I'd first like to draw attention to the initial summary of Dorothy's request. I believe the extent of the carport project was not fully understood, as indicated in the description on p.2, paragraph 1. ..."claiming that the enclosed carport is a necessary modification to her property to allow her to enjoy her home to the same degree as an individual with no disability." and further, ..."She hopes the carport will not only protect her from the elements as she accesses her car, but that by enclosing it, she will also be able to enjoy entirely first -floor living." The above description is inaccurate. I provided photos and renderings with my initial application, along with a written description of the project. I stated clearly that we have plans to add a NEW carport, and to enclose the existing carport to increase the first floor living space. We are NOT, as the above seems to imply, enclosing the existing carport in order to use it for parking. I also stated the the existing carport is simply too narrow, and too dangerous, to continue using as a carport (supporting photos demonstrated my point). This brings me to the next point. On page one, the recommendation was that the zoning board grant a variance, but with the condition that the board "consider making the variance temporary and conditional on an agreement that the property be returned to its original state within 60 days of the modification ceasing to be necessary to the residence's inhabitants. Other circuits have indicated that including a restoration provision is neither per se discriminatory nor per se retaliatory." I'd like to start by urging that we take the conversation away from the idea of a variance and move it into the language of "special consideration" as described in the Albemarle County Land Use handbook when referencing disabled persons. My understanding is that a variance falls under the protocol outlined in the variance guidelines, and that situations involving disabled persons fall under ADA and FHA guidelines. Such a designation might expedite a decision as well as allow the county to avoid making binding changes to zoning variance regulations as a whole. Moving on, I'd like the board and the County Attorney to consider the following. The new carport we need to install is not a temporary structure. In fact, it will attach permanently to the existing roof and will completely change the existing roof line. The structure will also tie in with the plans for enclosing the existing carport to make a first floor utility room. The project, when complete, will increase the value of the home. In light of this, I submit that any condition that stipulates future removal of the carport would pose an undue burden. Having such stipulations on the property ties it up in red tape to the extent that the owners can neither sell nor borrow against the equity, since it would be impossible to value the house when a portion of the structure is slated to be demolished at some undetermined time in the future. There may come a time when my mother has to borrow against the home, or even sell it, to pay for care. Either option would be rendered impossible if you were to place any "tear down" stipulations on the construction of a new carport. Furthermore, the expense of removing the structure and restoring the property to its original state would have to be considered. That cost would have a direct impact on my mother's current financial situation, since the money would have to be earmarked from her current income and equity for the project to be completed within 60 days of her "no longer needing it." There is also the question of timing and enforcement. If the county were to place a "tear -down" restriction on the carport construction, who would monitor the status of the property? Would my mother be required to report her physical status to the county on a regular basis? Would the family bear the burden of informing the county and demolishing the structure should my mother pass away? Or will the county monitor the obituaries in order to enforce the 60 -day stipulation? When it comes to enforcing ADA and FHA laws, it has been determined that "reasonable accommodation" means the disabled person should be able to enjoy their home to the same extent that a non -disabled person would. I cannot think of any scenario in which a "tear -down" stipulation would allow my mother to enjoy her home to the same extent as a non -disabled person. In fact, it could be argued that such a ruling would be considered discriminatory in that it forces her to tie up her home's equity and value in red tape that would not otherwise be imposed were it not for her need to have a carport installed. The one case cited in which a family was granted a temporary variance involved an above ground pool and fencing, both of which could be considered "temporary" structures. But other cases cited in the summary, especially where a municipality offered solutions that added to the expense the disabled person would incur, were ruled in favor of the disabled. Clearly, the suggestion of a 60 -day "tear -down" stipulation in the case of my mother's carport would add significantly to the expense of the project, and even worse, would tie up her assets and possibly prevent her from getting care she may need in the future. I believe I've clearly demonstrated that my mother's case falls well within the scope of "reasonable accommodation" under ADA and FHA laws. I'd like to urge you to consider moving forward with a special consideration for the setback allowance we are asking for in order to complete this project in a timely manner. Thank you. --Mary Cockerille Garriss Albemarle County marygarriss@me.com 808-388-1216 February 14, 2017 LOD201700004 Page 2 of 3 future construction shall conform to all setbacks in place at the time of construction. The basis of this determination is outlined below. Under the ADA and the FHA, Albemarle County ("the County") must first consider whether the individual has a qualifying disability. In this case, because Mrs. Hesselton's rheumatoid arthritis causes her to be reliant on a wheelchair and sensitive to direct exposure to the elements, she meets the qualifying disability criteria. Second, the County must consider whether the accommodations made on behalf of the disabled individual are reasonable. In the case of the Hesseltons' carport, the proposed 22 foot 8 inch depth is the minimum depth required to accommodate the Hesseltons' 17 -foot vehicle with an additional 5 feet 8 inches to allow for circulation around the vehicle to get into the house. Due to the narrow width of the existing carport, moving the new carport any closer to the house to avoid encroachment on the front setback would be impractical and fail to accommodate Mrs. Hesselton's disability. Finally, the County must consider any harm being done to the County and its interests in allowing a reasonable accommodation for a disabled individual. In this case, the carport would encroach on the front setback established in the Zoning Ordinance, which has implications for future construction in the neighborhood by allowing it to occur closer to the street. However, recent ordinance amendments affecting setbacks in residential areas encourage moving buildings closer to the street to create a more pedestrian -oriented environment. While setbacks for infill development in existing neighborhoods intend to respect the prevailing pattern of development, the front setback is established by the closest structure within 500 feet of the lot, favoring reducing the front yard setback over time in residential neighborhoods. Consequently, permitting the carport within the front yard setback is not viewed as a detriment to the Hesseltons' neighborhood or to the County's neighborhood development policies in general. In determining the minimum modifications required under Albemarle County Code § 18- 4.9, the County must consider whether the carport would be permitted within the typical front yard setback only for the period of time that a disabled person is living in the home. In Austin v. Town of Farmington, the Second Circuit Court of Appeals held that a requested accommodation was reasonable when the costs to the residents were modest and when it did not impose an undue hardship or substantial burden on the locality. In the case of this proposed carport, the cost to remove the carport is estimated at $15,000. A removal provision could further affect the ability to borrow against equity in the home, amounting to a potential financial burden. Furthermore, a removal provision would place a burden on the County to track when a disabled person no longer resides in the home and potentially adversely affect a future homeowner if the carport illegally remained after the Property changed hands. Therefore, it is my determination that Albemarle County Code § 18- 4.9 allows the carport to remain unless or until the existing residence is demolished, at which point any future construction must conform to all setbacks in place at the time of construction. It is recommended that a copy of this determination be recorded at the courthouse (provided that the 30 -day appeal period lapses without an appeal) to inform any future purchaser of the basis for and conditions of approving the carport. February 14, 2017 LOD201700004 Page 3of3 Anyone aggrieved by this determination has a right to appeal it within thirty (30) days of this notice, in accordance with Virginia Code § 15.2-2311. If not timely appealed, this determination shall be final and unappealable. An appeal may be taken only by filing an appeal application with the Zoning Administrator and the Board of Zoning Appeals, in accordance with Albemarle County Code § 18-34.3, along with a fee of $258 plus the actual cost of advertising the appeal for public hearing. Applications for Appeal of the Zoning Administrator's Determination are available at the Department of Community Development located at 401 McIntire Road, Charlottesville, Virginia 22902 or online at www.albemarle.org/cdapps. This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are located in Albemarle County Code § 18-34.3. They may be reviewed online at www.albemarle.org/countycodebza. Sincerely, Amanda Burbage Senior Planner Attachment A: Carport rendering Cc: Mary Cockerille Garriss Amelia McCulley, Zoning Administrator Greg Kamptner, County Attorney �3r aAVa:�a� O � L L6ZZbn all!nseLLoDeip D�tl Paarueed ELL LL6ZZ'VA all!�eRqW,J "ue0 IU! f -w Dw?i pmwaaa Eimm /),VM3ARi0 - OVOa OOOMN334 £L L > NOIlVONno.� IbOdbVO L91 C.