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HomeMy WebLinkAboutVR-05-02 - Decision - 1397 Spear StreetCITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING AND ZONING ANDREW & CAROLYN FITZGERALD-1397 SPEAR STREET VARIANCE APPLICATION #VR-05-02 FINDINGS OF FACT AND DECISION Andrew and Carolyn Fitzgerald, hereinafter referred to as the applicants, are seeking a variance from Section 13.04(A)(4) of the South Burlington Land Development Regulations. The request is to be exempt from the requirement that an in -ground swimming pool be completely enclosed by a wall, fence, or other substantial structure not less than four (4) feet in height, 1397 Spear Street. The swimming pool has already been built and is not enclosed by any wall or fence, thus the property is in violation of the South Burlington Land Development Regulations. The Development Review Board held a public hearing on July 5, 2005. Andrew Fitzgerald was present at the meeting. Based on testimony provided at the above mentioned public hearing and the plans and supporting materials contained in the document file for this application, the Development Review Board finds, concludes, and decides the following: FINDINGS OF FACT 1. The applicants re seeking a variance from Section 13.04(A)(4) of the South Burlington Land Development Regulations. The request is to be exempt from the requirement that an in -ground swimming pool be completely enclosed by a wall, fence, or other substantial structure not less than four (4) feet in height, 1397 Spear Street. 2. The swimming pool has already been built and is not enclosed by any wall or fence. 3. The owners of record of the subject property are Andrew & Carolyn Fitzgerald. 4. The subject property is located in the Residential 1 (R1) Zoning District. VARIANCE REVIEW STANDARDS Title 24, Section 4468 of the Vermont Municipal and Regional Planning and Development Act establishes the following review standards for all variance requests: On an appeal under section 4464 or section 4471 of this title wherein a variance from the provisions of a zoning regulation is requested for a structure that is not primarily a renewable energy resource structure, the board of adjustment or the development review board, or the environmental court created under 4 V.S.A. chapter 27 shall, grant variances, and render a decision in favor of the appellant, if all the following facts are found and the finding is specified in its decision. (1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the provisions of the zoning regulation in the neighborhood or district in which the property is located. The subject property does not meet this requirement. The construction of a fence or wall at the required location is not dependent on the shape, size, or exceptional topographical features of the property. (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulation and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. This property does not contain any unique physical circumstances or features, so the subject property does not meet this requirement. In addition, the subject property is currently developed with a single-family dwelling, which is a reasonable use of the property. (3) That the unnecessary hardship has not been created by the appellant. Any hardship that exists is being created by the appellant, as the applicant constructed the swimming pool without planning for the required fence. (4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, nor be detrimental to the public welfare. The variance, if authorized, would not alter the essential character of the neighborhood, nor would it permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, or be detrimental to public welfare. (5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least deviation possible from the zoning regulation and from the plan. The variance, if authorized, would not represent the minimum variance that will afford relief or represent the least deviation possible from the South Burlington Land Development Regulations. The subject property is 2.77 acres. There is a great deal of land available surrounding the pool on which to construct a wall, fence, or other substantial structure that would be in compliance with the South Burlington Land Development Regulations. r)Fr1_q1r)A1 -2- Motion by J seconded by 6AYLTZ 6�41MI� to approve Variance Application #VR-05-02 of Andrew & C rolyn Fitzgerald. Mark Behr — yea na /abstain/not present Chuck Bolton —yea n.a abstain/not present John ®inklage — yea a abstain/not present Roger Farley — yea a /abstain/not present Larry Kupferman — yea na /abstain/not present Gayle Quimby — yea nay abstain/not present Motion failed by a vote of 0- c ' - o Signed this day of July 2005, by Jahn Dinklage, Chair Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 VSA 4471 and VRCP 76 in writing, within 30 days of the date this decision is issued. The fee is $225.00. If you fail to appeal this decision, your right to challenge this decision at some future time may be lost because you waited too long. You will be bound by the decision, pursuant to 24 VSA 4472 (d) (exclusivity of remedy; finality).