Title:
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Planning Manager’s Appeal - Appeal of the Planning Manager’s determination that a conversion permit or an application for a principal dwelling unit plan to establish a principal use on the property must be applied for and approved by the County prior to submittal and consideration of a variance request to grant setback variances for existing illegal accessory structures; (J. Marc Jones, Appellant) Countywide (Kathy Hammel, Interim Planning Manager).
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Department/Division:
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Development Services - Planning and Development
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Authorized By:
Jose Gomez, Development Services Director
Contact/Phone Number:
Kathy Hammel/(407) 665-7389
Motion/Recommendation:
1. Uphold the Planning Manager’s determination that a conversion permit or an application for a principal dwelling unit plan to establish a principal use on the Property must be applied for and approved by the County prior to submittal and consideration of a variance request to grant setback variances for existing illegal accessory structures; or
2. Overturn the Planning Manager’s determination that a conversion permit or an application for a principal dwelling unit plan to establish a principal use on the Property must be applied for and approved by the County prior to submittal and consideration of a variance request to grant setback variances for existing illegal accessory structures; or
3. Continue the request to a time and date certain.
Background:
In summary, the issue presented is an appeal of the Planning Manager’s determination regarding the ability to grant setback variances for existing accessory structures on a property without a primary structure or use. The Applicants are the owners of the property at 2064 Shady Lane (Lot 20). The subject property, Lots 19 & 20 of the Palm Shadows Subdivision Plat recorded in 1960 (see Plat) (“Property”), were combined, improved, and served as a single family residential lot. In 1967, a mobile home was placed on Lot 19 and subsequently, a detached garage, dock, and boathouse were built on Lot 20 (see Record Cards).
The lots were split, via warranty deed by the previous owner, back into the original platted lots (Lots 19 and 20) as configured in the Palm Shadows Subdivision Plat without going through the County subdivision process. Further, the mobile home that was on Lot 19 was removed.
The lot split resulted in the current configuration of the Property, having accessory uses on Lot 20 without a principal structure on either of the lots.
A code enforcement violation (24-31-CESM was issued by the County on July 21, 2023, which required the applicant to remove the garage, boat dock, and camper.
History and Staff Findings:
Staff met with the Applicant on several occasions to discuss this matter. The following is a history of staff’s correspondence and interactions with the Applicant prior to the Planning Manager’s determination.
April 23, 2015
A demolition permit was issued to remove the mobile home. The violation of the accessory structures on a property without a primary structure or use occurred when the mobile home was not replaced.
September 15, 2020
The lots were split, via warranty deed by the previous owner, back into the original platted lots (Lots 19 and 20) as configured in the Palm Shadows Subdivision Plat without going through the County subdivision process. The lot was subsequently sold to the current owners.
July 5, 2023 - Lot Research Report (attached)
The Lot Research Report for Lot 20 was provided to the applicant on July 5, 2023. The report indicated that the lot split was illegal, as in the lot split did not go through the County subdivision process thus creating the situation where the garage, boathouse, and dock existed on Lot 20 without a primary structure on-site. Additionally, the accessory structures do not meet the required setbacks and floodplain issues exist on the Property.
July 21, 2023
A code enforcement violation (24-31-CESM was issued by the County on July 21, 2023, which required the applicant to remove the garage, boat dock, and camper.
October 2023 - Staff Meeting
County Staff and Deputy County Attorney Paul Chipok met with the applicant’s legal counsel, Marc Jones, and discussed the abovementioned issues with the Property. In that meeting, the County agreed to officialize the illegal lot split allowing the accessory structures to remain on-site with the condition that the existing detached garage on Lot 20 be converted into a primary residence and variances for the detached garage, boathouse and dock were applied for and obtained.
June 13, 2024 - Code Enforcement Special Magistrate Hearing
See Magistrate Hearing Minutes Excerpt attached. The following is a summary of the applicable portions of the Code Enforcement Special Magistrate Hearing:
In the portion of the County’s presentation regarding compliance, Meggan Znorowski, Project Coordinator, stated that a setback variance would be required for the accessory structures (garage, boathouse, and dock) on Lot 20 and a primary residence would need to be placed on Lot 20.
Officer Cara Hill reaffirmed that compliance with the Special Magistrate’s final order is contingent on the existence of a primary structure on Lot 20 and the Special Magistrate agreed with this position.
The Special Magistrate provided additional time to the applicant, until December 4, 2024, for compliance.
Mr. Jones, the applicant’s representative at the hearing, stated that the compliance date set by the Special Magistrate would allow time for the applicants to put a mobile home on the property.
Mr. Jones further stated that the property owners had every intent of moving forward with the building permit (BP24-3480), submitted to the County on March 12, 2024, to convert the existing garage to a single family residence. He also stated that the plans were with him and available for submittal in the record.
July 30, 2024 - Variance Application Received from the Applicant
See Variance Application attached.
August 2, 2024 - Email Correspondence
Jealyan Moreno, Planning Coordinator - BOA Clerk, repeated in an email to Marc Jones, the Applicant’s representative, the requirement for a conversion permit (to convert the existing garage to a single family residence) or a principal dwelling unit plan prior to proceeding with the variance application (see Email Correspondence attached).
Furthermore, the LDCSC prohibits a variance to be taken to the Board of Adjustment prior to legitimizing the accessory structures on the property. A variance “is authorized only for height, area, and size of structure, or size of yards and open spaces. Establishment or expansion of a use otherwise prohibited shall not be allowed by variance…”. (See LDCSC Sec 2.3 Definitions) The current use of the property for accessory structures is not a legal use of the property. Thus, the variance requested cannot be processed further as the legal use of the accessory structures cannot be established by the variance. Granting the variance would effectively establish an illegal use on the property. As provided above, a building permit for either conversion of the garage to a single-family residence or for a separate single-family residence is necessary. (LDCSC Sec. 30.3.3 Board of Adjustment, most particularly, 30.3.3.2(d).).
September 27, 2024- Email Correspondence Including Determination
The formal Planning Manager’s Interpretation was emailed by Dale Hall, Planning Manager, to Marc Jones. The determination stated that County Staff has no authority to proceed with this variance unless a conversion permit or an application for a principal dwelling unit plan has been applied for and approved by the County (see Planning Manager’s Administrative Interpretation Email).
October 16, 2024
Marc Jones sent an email to the County as a formal notice of appeal of the Planning Manager’s Administrative Interpretation (see Notification of Appeal).
December 12, 2024 - Code Enforcement Special Magistrate Compliance Hearing
Marc Jones stated that he has been “butting heads with the Staff” and asked the Magistrate to “pump the brakes” until this can be resolved.
Meggan Znorowski, Project Coordinator, verified the pending Planning Manager’s Appeal Hearing date and that the next steps in this matter would be determined at that meeting.
The Special Magistrate provided additional time until February 12, 2025, for compliance and set a Hearing Date for February 13, 2025.
Staff Conclusion:
1. This appeal comes to the BOA pursuant to LDCSC Section 30.3.3.2 which states that the BOA has the power and duty to “hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the Planning Manager.”
2. The LDCSC defines the existing on-site structures on Lot 20, including the detached garage, boathouse and dock, as accessory structures (LDCSC Sections 2.3 - Definitions & 110.1 Definitions).
3. The LDCSC specifically states that “in no event shall an accessory building, boat dock, or structure be established prior to the principal use to which it is accessory” (LDCSC Sec. 30.6.1.2.(b) Accessory buildings and uses).
4. The LDCSC states clearly that “under no circumstances shall the Board of Adjustment grant a variance to permit a use not generally or by special exception permitted in the zoning classification involved, or any use expressly or by implication prohibited by the terms of this Chapter in the said zoning classification”. (Emphasis added). Thus, a variance to legitimize an accessory structure with no principal use or structure on the property is not within the Board of Adjustment’s authority to grant. (LDCSC Sec. 30.3.3.2(d) Board of Adjustment).
5. Variances are “authorized only for height, area, and size of structure, or size of yards and open spaces” (LDCSC Chapter 2 - Definitions).
6. Variances cannot allow for a use that is specifically prohibited by Code (LDCSC Sec 2.3 - Definitions).
Staff Recommendation:
Staff recommends the Board of Adjustment uphold the decision of the Planning Manager that a conversion permit or an application for a principal dwelling until plan to establish a principal use on the Property must be applied for and approved by the County prior to submittal and consideration of a request to grant setback variances for existing illegal accessory structures.