TO: Chair and Board of Adjustment
FROM: Jeremy Knapp, Community Development Director
Paul Michaud, Planning Manager
George Burton, Senior Planner
DATE: January 8, 2020
DEPARTMENT: Community Development
Staff Contact George Burton, Senior Planner, 480-348-3525
End
AGENDA TITLE:
Title
Byrnes Variance - 5339 E. San Miguel Ave (APN 172-47-039).
Case No. BA-19-08
Body
Motions
A. MOTION FOR approval
I move for [approval] of Case No. BA-19-08, a request by Andrew Byrnes and Shawna Glazier, property owners of 5339 E. San Miguel Avenue; for a variance from the Zoning Ordinance, Article XXII, Hillside Development Regulations, to allow retaining walls to exceed the height limits.
The variance shall be in compliance with the submitted plans and documents:
1. The Zoning Adjustment Case Narrative, prepared by The Construction Zone and dated December 13, 2019;
2. Site Plan & Project Info, Sheet A100, prepared by The Construction Zone and dated November 1, 2019; and
3. Sections & Site Photos, Sheet A400, prepared by The Construction Zone and dated November 1, 2019.
Reasons for Approval:
I find that there are special circumstances, applicable to only the subject lot, meeting the variance criteria.
B. MOTION FOR DENIAL
I move for [denial] of Case No. BA-19-08, a request by Andrew Byrnes and Shawna Glazier, property owners of 5339 E. San Miguel Avenue; for a variance from the Zoning Ordinance, Article XXII, Hillside Development Regulations, to allow retaining walls to exceed the height limits
Reasons for Denial:
I find that the variance requested does not meet the variance criteria.
Background
Background
Request
The applicant requests two variances:
1. Allow an 11’6” tall pool retaining wall to extend a maximum of 63” above the material it retains, and
2. Allow a 92” tall mechanical retaining/screen wall to extend 32” above the material it retains.
The subject property is designated as a hillside lot, which is subject to the requirements outlined in the Hillside code (Article XXII of the Zoning Ordinance). The first variance is to allow an 11’6” tall pool retaining wall to extend 14” to 63” above the material it retains in order to protect the house from potential rock fall and erosion. However, Section 2207.VI.C.1.d of the Town Zoning Ordinance does not allow retaining walls to extend more than 6” above the material retain (in order to limit retaining wall heights).
The second variance request is to allow a 92” tall mechanical retaining wall to extend 32” above the material it retains in order to screen the equipment in this area. Section 2207.II.E of the Town Zoning Ordinance requires all mechanical/pool equipment to be screened in such a manner that the equipment is not visible from outside the property when viewed from the same or lower elevation (and vegetation does not constitute a screen). However, Section 2207.VI.C.1.d does not allow retaining walls to extend more than 6” above the material retain (in order to limit retaining wall heights). The increased height of this retaining wall satisfies the mechanical screen requirement, but exceeds the 6” retaining wall limit.
Lot Conditions
The property is zoned R-43 hillside and is approximately 68,581 square feet in size (1.6 acres in size). The lot is square in shape, has a building pad slope of approximately 27%, and is encompassed with large rock formations from Camelback Mountain in the southern/rear portion of the property.
Lot History
The subject property is Lot 39 of the Stone Canyon subdivision. The property was platted in 1955 and annexed into the Town in 1961. The original house was constructed in 1958, which encroached into the 40’ font-yard setback.
On September 9, 2015, the applicant received a variance to allow the new house to encroach into the front-yard setback, allow a 14’ tall pool retaining wall to extend 12” above the material it retains, and allow the existing non-conforming driveway retaining walls to remain. The pool and pool retaining wall are located in the rear-yard between the house and the abutting the rock formation.
During the redevelopment of the site, the pool retaining wall and the mechanical retaining wall deviated from the approved plans. The pool retaining wall was built at a height of 11’6” tall, with the retaining wall extending 14” to 63” above the material it retains. Also, the height of the mechanical retaining wall extended 32” above the material it retains in order to screen the mechanical equipment and pool equipment. The applicant now requests a variance to: 1) allow an 11’6” tall pool retaining wall to extend a maximum of 63” above the material it retains, and 2) allow a 92” tall mechanical retaining/screen wall to extend 32” above the material it retains.
The following is a chronological history of the subject property:
|
March 19, 1968 |
Building permit for enclosing an existing upper deck |
|
April 12, 1972 |
Building permit for addition at rear of home |
|
March 15, 1978 |
Permit for the relocation of a gas meter |
|
December 7, 1977 |
Variance granted to allow pool at 10’ front yard setback |
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February 16, 1978 |
Building permit for a new pool |
|
June 8, 1983 |
Building permit for an addition/kitchen remodel |
|
August 6, 1993 |
Building permit for a storage room and stairway |
|
May 11, 1994 |
Permit for a new gas line to the existing pool |
|
December 19, 2006 |
Permit to replace section of gas line |
|
September 9, 2015 |
Variance granted for house setback encroachment, increased pool retaining wall heights, and maintain non-conforming driveway retaining walls |
|
November 12, 2015 |
Hillside Committee approval for new house, pool, and site improvements |
|
March 22, 2016 |
Permit for single family residence |
|
March 22, 2016 |
Permit for retaining walls and pool barrier |
|
August 17, 2016 |
Permit for pool |
DISCUSSION/ FACTS:
Variance criteria:
Town Code and Arizona Revised Statutes set criteria an applicant must meet before a Board of Adjustment may grant a variance request. If the Board finds an applicant meets all of these criteria, the Board may grant the variance. However, if the Board finds the applicant does not meet all of the criteria, the Board may not grant the variance. The following are staff’s findings with regard to such variance criteria.
1. “Such variance… will serve not merely as a convenience to the applicant, but [is] necessary to alleviate some demonstrable hardship or difficulty so great as to warrant a variance under the circumstances.” (Town Code Section 2-5-3(C)2).
Findings in Favor (FIFs):
The property hardship is the topography of the lot. Approximately two-thirds of the property is encompassed with a large rock formation from Camelback Mountain. The extension of the pool retaining wall height above the material it retains is needed for safety from potential rock fall and erosion. The applicant provided letters from NOE Engineering and ASC Services identifying that the additional height of the pool retaining wall is needed for drainage and to deflect and control small diameter rocks and debris from cascading over the wall and damaging structures and injuring occupants.
The height of the mechanical retaining wall was also increased to 32” above the material it retains in order to screen the adjoining mechanical equipment. In order to reduce the number of walls on site, the applicant extended the height of the retaining wall to screen the equipment.
Findings Opposed (FOPs):
The hardship is self-imposed as other alternatives exist. The pool retaining wall can be constructed 12” above the material it retains in accordance with the approved variance in 2015. A geotechnical engineer can identify and pin any loose boulders on site to reduce the risk of falling boulders. Also, a separate screen wall can be placed around the mechanical equipment, negating the need for the mechanical retaining wall to extend 32” above the material it retains.
2. The “special circumstances, hardship, or difficulty [do not] arise out of misunderstanding or mistake…” (Town Code Section 2-5-3(C)4(b)).
FIFs:
The hardship is not out of mistake or misunderstanding. The topography of the lot is the result of how the property was platted and situated on the hillside in 1955. As a result, approximately two-thirds of the lot is encompassed with a large rock formation.
FOPs:
The applicant should be aware of all special circumstances on the property and plan any designs accordingly. Other options existing for mitigating potential rock fall and mechanical screening.
3. “Such variance from … the strict application of the terms of [the Zoning Ordinance] … are in harmony with its general purposes and intents…” (Town Code Section 2-5-3(C)2).
FIFs:
The intent of the hillside ordinance is to minimize the amount of disturbance to the hillside and to preserve the visual openness and the natural features of the mountain. The request meets the intent of the hillside ordinance since the proposed improvements will not create additional disturbance to the hillside and have limited to no visibility since the pool retaining wall is located behind the house and the mechanical retaining wall is located on the side of the house.
The additional mechanical retaining wall height eliminates the need for a separate/additional screen wall. The 6” above the material it retains requirement is intended to limit the height of retaining walls on the hillside. The pool retaining wall is located behind the house and is not visible from outside the property. Also, the pool retaining wall is lower than the previously approved variance height in 2015 (at 11’6” tall instead of the approved height of 14’ tall).
FOPs:
The request does not meet the intent of the code since other alternatives exist.
The pool retaining wall can be constructed 12” above the material it retains in accordance with the approved variance in 2015. A geotechnical engineer can identify and pin any loose boulders on site to reduce the risk of falling boulders. Also, a separate screen wall can be placed around the mechanical equipment, negating the need for the mechanical retaining wall to extend 32” above the material it retains.
4. “The special circumstances, hardship or difficulty applicable to the property are [not] self-imposed by the property owner, or predecessor…” (Town Code Section 2-5-3(C)4).
FIFs:
The request is not self-imposed. Due to the shape of the topography of the lot, the applicant has a difficult lot to build on and is trying to improve the site while utilizing the existing conditions. The pool retaining wall is not visible from the surrounding properties and the additional height will help protect the house from potential rock fall and erosion. Also, the additional mechanical retaining wall height will eliminate the need for more walls.
FOPs:
The request is self-imposed since other options exist for mitigating potential rock fall and screening the mechanical equipment.
5. Because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, the strict application of the Zoning Ordinance will deprive such property of privileges enjoyed by other property of the same classification in the same zoning district.” (Arizona Revised Statutes 9-462.06(G)(2)).
FIFs:
The hardship is the topography of the lot and how it is situated on the hillside. A large and steep rock formation is located behind the house and encompasses approximately two-thirds of the lot. The additional retaining wall height holds back the cut and should help protect the house and occupants from potential rock fall and erosion. The additional mechanical retaining wall height screens the equipment and eliminates the need for another screen wall on site.
The neighboring views will not be altered or obstructed. The pool retaining wall is located behind the house and not visible from the adjoining properties. The mechanical retaining wall has limited visibility from the side of the house and is situated lower than the surrounding retaining walls.
FOPs:
Arizona Revised Statues and the Town Zoning Ordinance do not require the most optimal or profitable use of a property. Other options exist for mitigating potential rock fall and screening the mechanical equipment.
6. The variance would not “constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located.” (Arizona Revised Statutes 9-462.06(G)(2)).
FIFs:
The pool retaining wall and mechanical retaining wall will have limited visual impact. The pool retaining wall is screened by the house and the mechanical retaining wall has limited visibility due to is location at the side of the house. These improvements are in character with the Zoning Ordinance since they do not create additional disturbance to the hillside and do not obstruct views. The applicant is trying to improve the site while addressing and utilizing existing conditions.
FOPs:
All other properties in the area must meet the retaining wall requirements outlined in the Town Zoning Ordinance. Other options also existing to mitigate potential rock fall and screening of mechanical equipment.
COMMENTS: Staff received no comments or inquiries regarding this request.
COMMUNITY IMPACT: None.
FISCAL IMPACT None.
CODE VIOLATIONS: None.
ATTACHMENTS
A - Vicinity Map & Aerial Photo
B - Application
C - Narrative & Plans
D - Notification Materials
C: Andy Byrnes & Drew Bausom (Applicant)
Case File BA-19-08