TOWN
OF
STATE OF
ZONING BOARD OF ADJUSTMENT HEARING
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CASE: |
03-V-003 |
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STAFF
CONTACT: |
Beth
Lewis |
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APPLICANT(S): |
Jon and Doreen Lazar |
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OWNER(S): |
Jon
and Doreen Lazar |
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LOCATION: |
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PRESENT
ZONING: |
Residential
12-Conditional Use (R-12CU) |
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SETBACK: |
Front
– 20’ |
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REQUEST: |
The
applicant is requesting a variance of
5’ to the required 5’ setback to retain an existing on-grade
pool deck. |
FACTORS
RELEVANT TO THE ISSUANCE OF A VARIANCE:
The
“variance” process…is intended to provide limited relief from the [UDO] in
those cases where strict application of a particular requirement will create a
practical difficulty or unnecessary hardship prohibiting the use of land in a
manner otherwise allowed under the UDO.
A variance is not designed to remove inconveniences or financial burdens,
but to provide relief where the requirements of the UDO render the land
difficult or impossible to use because of some unique physical attribute of the
property itself or some other factor unique to the property for which the
variance is requested. [Sec. 6.1.1.]
The
Board may not grant variance that would
· permit
establishment of a use which is not otherwise allowed, or
· change
the zoning district classification, or
· vary
any written conditions attached by Council to a special use, subdivision plat,
site plan or conditional use district or master plan for a PUD, or
· vary
any standard where Council alone acts (sexually oriented business and
Thoroughfare Corridor Buffer) [Sec.
6.1.2.]
The
Standard for issuing a variance, as set forth in Sec. 6.1.5. (a)
The Board may grant a variance, which is in harmony with the general purpose and
intent of the zoning ordinance. (b)
When practical difficulties or unnecessary hardships would result from carrying
out the strict letter of the zoning ordinance, the Board may vary or modify the
regulation or provisions of the ordinance, so that the spirit of the ordinance
shall be observed, public safety and welfare secured, and substantial justice
done.
The
applicant has constructed a pool and deck in the rear yard of a single-family
residence. A building permit was
sought and granted for the pool, which was to be 10’ from the side property
line. However, without a permit, a
deck was also installed. The deck
not only encroaches the 5’ setback required from the side property line for
on-grade structures, it encroaches into the neighboring property.
The Zoning Board of Adjustment has been asked to grant a 5’ variance to
the required 5’ side yard setback for the deck, so it can extend up to the
property line. The Board does not
have the authority to grant permission for the deck to extend into the
neighboring property.
Undisputed
Facts:
1. The
property is owned by Jon and Doreen Lazar. Mr.
Lazar has requested the variance
2. The
property is a pentagon and has the following dimensions:
Approximately 74’ along
3. The
property is developed with a single-family residence.
4. The
property is zoned R-12CU, which is residential and requires a 20 foot front yard
setback, a 25 foot rear yard setback, and a 10 foot
side yard setback. On-grade
structures are permitted to encroach the side yard setback, but may be no closer
than 5’ from the property line.
5. The
CU zoning on this site pertains to the lot size only, and does not impose any
condition that is inconsistent with this request.
6. A
building permit was obtained for the construction of the pool (drawing
attached), but no permit was obtained for the construction of the concrete, on-grade deck.
If
you are inclined to grant the
If you are inclined to deny the
variance
request, follow this route:
request, follow this route:
|
7.
There
are practical difficulties or unnecessary hardships that exist on the
property. There is a drainage easement that traverses the property.
Additionally, the deck exists, having been built by a contractor
for the owners. |
7.
There are no practical difficulties or unnecessary hardships that exist on
the property. The property is
approximately 100’ wide in the location of the pool.
The pool is 36’ wide. The
pool could have been constructed without a deck, or could be modified to
shorten the deck in this area or remove the deck, or the pool could have
been located more near the center of the yard, to allow a larger deck on
all sides of the water’s edge. As
it has been installed, a deck on the side of the pool closest to the
neighboring property could be only 5’ wide rather than 10’, wide
enough to provide access to that side of the pool. |
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8.
The conditions are not the result of the applicant’s own doing.
The applicant relied on the pool contractor to follow the Town of |
8.
The conditions are the result of the applicant’s own doing.
Although the applicant relied on the pool contractor to follow the
Town of |
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9.
The applicant is not able to obtain a building permit.
The applicant is not able to obtain a building permit for the deck
that has been installed, as it encroaches, and goes over, the property
line. |
9.
The applicant is able to obtain a building permit.
While a permit for this particular deck will not be granted, a
permit for another deck, of a size and configuration that meets the
Ordinance, would be granted. |
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10.
There is insufficient space on the property to construct the
proposed structure. The deck
as planned is closer to the property line than is permitted. |
10.
There is sufficient space on the property to
construct the proposed structure.
A pool deck of equal square footage may be granted a permit.
It will, however, be required to stay at least 5’ from the side
property line. |
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11.
There is no other practical use of the property, because
____________. |
11.
There is other practical use of the property.
The property is developed with a single-family residence and a
conforming pool. The deck
could be reconfigured to meet the Ordinance requirements. |
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12.
The construction will not have a negative effect on adjoining
property, as evidenced by ______________.
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12.
The construction will have a negative effect on adjoining property.
The deck, with a variance of the requested 5’, will bring noise
up to the property line, closer to the neighboring property than if the
deck was 5’ from the property line as required.
The deck also encroaches onto the neighbor’s property. |
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13.
Construction of the deck will not impair emergency access, create a
fire hazard, or otherwise be contrary to public health.
Access to both properties is not impaired by the deck. |
13.
Construction of the deck will impair emergency access, create a
fire hazard, or otherwise be contrary to public health. |
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14.
Requiring
certain conditions to be met will alleviate the problems with granting the
variance. The conditions are
set forth below. |
14.
Requiring
certain conditions to be met will not alleviate the problems with granting
the variance. State codes
require a fence surrounding a pool, so a fence, that may act as a noise
barrier, has been installed. |
After
conducting a duly advertised public hearing and reviewing the application,
testimony and evidence and the general purposes of the UDO, we find the
following
FACTS:
We hereby find facts 1 through 6 and 7 through ____. [insert facts found]
1. Based
on the application, testimony and evidence, the general purposes of the UDO, and
the above findings, the Board concludes tha the variance requested would be in harmony with the general purpose
and intent of the zoning ordinance, and that there are practical difficulties or unnecessary hardships that result from carrying out the strict
letter of the Cary UDO.
2. The
applicant is hereby granted a variance to retain an existing pool deck in its
current location at
3. This
variance is conditioned upon:
a
fence to be installed _________
a
buffer to be installed _____
a
________
After
conducting a duly advertised public hearing and reviewing the application,
testimony and evidence and the general purposes of the UDO, we find the
following
FACTS:
We
find facts 1 through 6 and 7 through ____.
[insert facts found]
1. Based
on the application, testimony and evidence, the general purposes of the UDO, and
the above findings, the Board concludes that the variance requested would not be in harmony with the general purpose
and intent of the UDO, and that there are no practical difficulties or unnecessary hardships that result from carrying out the strict
letter of the Cary UDO, and the application is DENIED.
