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1875 Beach Avenue 15-ZVAR-1022 Staff ReportAGENDA ITEM 4.C CASE NO 15-ZVAR-1022 Request for a variance as permitted by Section 24-64 for an increase in allowable fence height from 6 feet as required by Section 24-157 (b)(1 and 2) to up to 10 feet at North Atlantic Beach Number 2 Part of Lot 41 and 25 foot strip of land lying south thereof (aka 1875 Beach Ave). LOCATION 1875 Beach Avenue APPLICANT TRACY SYNAN AND ERIC NOTTMEIER DATE APRIL 9, 2015 STAFF DEREK REEVES, ZONING TECHNICIAN  STAFF COMMENTS The applicants, Tracy Synan and Eric Nottmeier are the owners of 1875 Beach Avenue. The property is an oceanfront lot located on the north side of the 18th Street beach access. The applicants would like to replace an existing nonconforming side yard fence with a new fence similar to the existing fence that is up to 10 feet tall. Section 24-157(a) states in part that, “Issuance of a permit is required for any new or replacement fence or wall, and all new or replacement fences and walls shall comply with the following provisions. Nonconforming fences shall not be replaced nonconforming fences.” This provision prohibits staff from administratively approving a permit for a nonconforming fence. A variance is needed for this plan according to Section 24-157(b)(1) which states in part, “Within required side and rear yards, the maximum height of any fence shall be six (6) feet”. The genesis for this variance application stems from the approval of a building permit allowing for the construction of a new fence. The permit requested to replace an existing 6 foot wood stockade fence with a new 6 foot wood fence that would feature a top rail for stability. The permit was initially denied due to the proposed height of 6 feet in the front yard where the limit is 4 feet. This was resolved by the applicant with an email clarifying that the permit was highlighted in error in that only the existing fence shown on the survey should be highlighted and not the whole property line to the east. The permit was then approved by staff. During construction, the building inspector stopped by the site because he was unaware of a permit at the address and was concerned about work without a permit. Upon speaking with workers at the site, he learned that there was an approved fence permit, but noticed that the fence was taller than 6 feet. He then called the Zoning Department and verified his concerns. He then issued a Stop Work Order. The reason that the permitted replacement fence exceeded 6 feet was because it was placed on top of an existing wall. At the time of permit approval, staff did not know that the fence would be on top of a wall. Section 24-157(b)(2) prohibits the use of any material to elevate a fence above existing grade and establishes measurement to be from grade. With the wall being used as the mounting point for the wood fence, height would still be measured from grade and limited to 6 feet in overall height. The applicant has stated to staff that staff should have been aware that the fence was mounted on top of a wall if not by a site visit then through common knowledge. City staff must rely on documentation given to them by applicants in order to determine if a proposed project is compliant with codes. The proposed fence on the permit stated the fence was to be 6 feet tall. Staff was never told verbally or in writing that the fence would be constructed on top of a wall and relied on the height of 6 feet as provided. The existing wall causes the overall height of the fence to be about 8 to 9 feet tall for a portion, but the applicants have requested up to 10 feet in height because of the topographic variation in the land. Section 24-157(b)(4) does have a provision that allows fences on property with uneven topography to exceed 6 feet in height. However, this code provision specifically eliminates oceanfront properties. As a result, fences on oceanfront properties must follow the topography of the lot. While there was clearly some miscommunication on expectations at the time of permitting, the applicant agreed to build according to city codes by signing the Building Permit Application which states, “I certify that no work or installation has commenced prior to the issuance of a permit and that all work will be performed to meet the standards of all laws regulating construction in this jurisdiction.” The board heard a similar variance at the 6th Street beach access last year where there were concerns over safety and security on the property. The circumstances were a little different because the property was on a corner lot, there were sightline issues, less topographic variation, and it was not immediately adjacent to the walkway. Ultimately, the board denied the variance. A second similar variance was heard by the board on Pine Street near the elementary school where the property owners wanted to build a 6 foot fence on the property line of a corner lot adjacent to a sidewalk used by kids. This project was also permitted (though greater circumstances existed) and was ultimately denied by the board and by the City Commission on appeal. The property owner had to remove the fence. If the applicants wanted to maintain the nonconforming fence, they could have replaced broken slats over time. This would be repairing a of a nonconforming structure which is allowed by code. The threshold for allowable repairs under this code section would be the replacement of structural members of the fence such as posts or horizontal boards that the vertical slats are attached to. Due to the wholesale replacement of the fence desired by the applicants, a permit is required. It is at the time of permitting that the city has the opportunity to see the removal of existing nonconforming structures replaced with those that meet current code, which reflects the desired built environment of the city’s residents. The 6 foot height limit has been part of the code since at least 1982 when the Land Development Regulations were changed to the current format. ANALYSIS Section 24-64(b)(1) provides that “applications for a variance shall be considered on a case-by-case basis, and shall be approved only upon findings of fact that the application is consistent with the definition of a variance and consistent with the provisions of this section.” According to Section 24-17, Definitions, “[a] variance shall mean relief granted from certain terms of this chapter. The relief granted shall be only to the extent as expressly allowed by this chapter and may be either an allowable exemption from certain provision(s) or a relaxation of the strict, literal interpretation of certain provision(s). Any relief granted shall be in accordance with the provisions as set forth in Section 24-64 of this chapter, and such relief may be subject to conditions as set forth by the City of Atlantic Beach.” Section 24-64(d) provides six distinct grounds for the approval of a variance: Exceptional topographic conditions of or near the property. The applicants stated in their application that the property has substantial variations in elevations as evidenced by a retaining wall with a flat top but that varies from 15 feet high to nothing. The applicants referenced the lower elevation beach access to the south causing the appearance of a taller fence. While this is true, height is measured from their property and not the beach access. Additionally, the lower elevation of the beach access should reduce the need for a higher fence because the effective height is already in excess of 6 feet. Surrounding conditions or circumstances impacting the property disparately from nearby properties. The applicants stated in their application that their property is unique in that it is adjacent a beach access with a lot of parking that results in a lot of foot traffic along their property and raising safety and security concerns. The applicants then reference a neighboring property and the height of their fence and a need for consistency. Section 24-64(g) states that, surrounding nonconforming structures cannot be used as justification for granting a variance. It should be noted that the referenced fence was recently permitted and installed incorrectly and staff is working with the contractor to correct the issue. Exceptional circumstances preventing the reasonable use of the property as compared to other properties in the area. The applicants stated in their application that the design of their house allows for easy access to their front door and children’s’ bedrooms from the beach access. This is a condition that existed when the property was purchased and experienced by any number of corner lot properties in the city where a door or window is in close proximity to the side property line. Onerous effect of regulations enacted after platting or after development of the property or after construction of improvements upon the property. The applicants stated in their application that the code requiring fences to be 6 feet or less is onerous and presents multiple issues for the property as stated previously. The maximum allowable fence height in the city has been 6 feet since at least 1982. Additionally, restrictions on the alteration of nonconforming structures have also existed as code since at least 1982. Irregular shape of the property warranting special consideration. Substandard size of a lot of record warranting a variance in order to provide for the reasonable use of the property. REQUIRED ACTION The Community Development Board may consider a motion to recommend approval of 15-ZVAR-1022, request for an increase in allowable fence height from 6 feet as required by Section 24-157 (b)(1 and 2) to up to10 feet at North Atlantic Beach Unit Number 2 Part of Lot 41 and 25 foot strip land lying south thereof (aka 1875 Beach Ave.), upon finding this request is consistent with the definition of a variance, and in accordance with the provisions of Section 24-64, specifically the grounds for approval delineated in Section 24-64(d) and as described above. A variance may be granted, at the discretion of the community development board, for the following reasons: Exceptional topographic conditions of or near the property. Surrounding conditions or circumstances impacting the property disparately from nearby properties. Exceptional circumstances preventing the reasonable use of the property as compared to other properties in the area. Onerous effect of regulations enacted after platting or after development of the property or after construction of improvements upon the property. Irregular shape of the property warranting special consideration. Substandard size of a lot of record warranting a variance in order to provide for the reasonable use of the property. Or, The Community Development Board may consider a motion to recommend denial of 15-ZVAR-1022, request for an increase in allowable fence height from 6 feet as required by Section 24-157 (b)(1 and 2) to up to 10 feet at North Atlantic Beach Unit Number 2 Part of Lot 41 and 25 foot strip land lying south thereof (aka 1875 Beach Ave.), upon finding that the request is either inconsistent with the definition of a variance, or it is not in accordance with the grounds of approval delineated in Section 24-64(d), or it is consistent with one or more of the grounds for denial of a variance, as delineated in Section 24-64(c), described below. No variance shall be granted if the Community Development Board, in its discretion, determines that the granting of the requested variance shall have a materially adverse impact upon one (1) or more of the following: Light and air to adjacent properties. Congestion of streets. Public safety, including traffic safety, risk of fire, flood, crime or other threats to public safety. Established property values. The aesthetic environment of the community. The natural environment of the community, including environmentally sensitive areas, wildlife habitat, protected trees, or other significant environmental resources. The general health, welfare or beauty of the community. Variances shall not be granted solely for personal comfort or convenience, for relief from financial circumstances or for relief from situation created by the property owner.