REVIEW COMMENTS
NEW BUSINESS
7.A.l
306 SW 5TH AVENUE
(ZNCV 07-001)
ZONING CODE VARIANCE
TO:
THRU:
FROM:
DATE:
PROJECT NAME/NO:
REQUEST:
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 06-216
STAFF REPORT
Chair and Members
Planning & Development Board and City Commission
~~~
Michael W. Rumpf~
Planning and Zoning Director
Kathleen Zeitler 1.2.-
Planner
January 16, 2007
306 SW 5th Avenue, Jenkins / ZNCV 07-001
Request for relief from the City of Boynton Beach Land Development
Regulations, Chapter 2, Zoning, Section 5.D.2.a., requiring a minimum rear
setback of 20 feet, to allow a 7 foot variance resulting in a 13 foot rear
setback for a solid-roof screen enclosure on property zoned R-1A Single-
family Residential.
Property Owners:
Applicant/Agent:
Location:
Acreage:
Existing Use:
Zoning District:
Adjacent Uses:
North:
South:
East:
West:
PROJECT DESCRIPTION
Steven Jenkins and Anna Lloyd
Steven Jenkins and Anna Lloyd Jenkins
306 SW 5th Avenue (Lot 44, Mango Heights)
(see "Exhibit Aft - Location Map)
6,008 square feet / (0.14 acres)
Single-family Residential
Single-family Residential (R-1-A)
Right-of-way for SW 5th Avenue, then farther north is 305 SW 5th Ave (Lot 29,
Mango Heights) a developed single-family residence, zoned Single-family
Residential (R-1-A);
301 and 305 SW 5th Lane (Lots 56 and 57, Mango Heights 1st Addition) developed
single-family residences, zoned Single-family Residential (R-1-A);
302 SW 5th Avenue (Lot 45, Mango Heights) a developed single-family residence,
zoned Single-family Residential (R-l-A); and,
312 SW 5th Avenue (Lot 43, Mango Heights) a developed single-family residence,
zoned Single-family Residential (R-1-A).
Page 2
306 SW 5th Ave (Jenkins)
File No. ZNCV 07-001
BACKGROUND
The subject property is generally located south of Boynton Beach Boulevard, between 1-95 to the west
and Sea crest Boulevard to the east, on the south side of SW 5th Avenue within the Mango Heights
subdivision (see Exhibit "A" - Location Map). The subject property and neighborhood are zoned R-1-A,
Single-family Residential. The existing lot dimensions of the subject property (65 feet in width and 92.44
feet in depth) are the same as approved by plat in 1973. According to the current survey (see Exhibit
"B"), the lot supports a one-story residence with an attached solid-roof screen enclosure (23.7 feet in
width by 15 feet in depth totaling 355 square feet).
The subject property is considered to be a nonconforming lot because it does not comply with all the
property development regulations currently required by the R-1-A zoning district. The property is
nonconforming to the following minimum lot standards: (1) lot area of 7,500 square feet (the subject
lot has 6,008 sq. ft.); (2) side yard setback of 7.5 feet (currently 7.0 feet); (3) minimum living area of
1,400 square feet (1,309 sq. ft. under air); and (4) rear yard setback of 20 feet (currently 13 feet).
Land Development Regulations pertaining to special provisions for nonconforming lots and lots platted
prior to 1975 do not resolve the rear setback encroachment issue which is the subject of the requested
variance.
The applicants have requested relief from Chapter 2, Zoning, Section 5.D.2.a. to allow for the continued
existence of a solid-roofed screen enclosure attached to the rear of the residence. Per the Land
Development Regulations, a screen enclosure with a solid roof must comply with the setbacks required
by the zoning district, which is a minimum of twenty (20) feet for the rear setback in the R-1-A zoning
district. However, a screen enclosure with a screen roof requires a minimum rear setback of only eight
(8) feet. The existing solid-roof screen enclosure on the subject property is located thirteen (13) feet
from the rear property line, an encroachment into the minimum rear yard setback of seven (7) feet.
The owner states the following in their justification: (1) a solid-roof screen enclosure existed when they
rented the residence in 2000; (2) the screen enclosure was destroyed by Hurricane Francis in
September, 2004; (3) a new solid-roof screen enclosure of the same dimensions was constructed by
their contractor who had not secured a building permit. Consequently, Code compliance issued a
citation for the construction and location of the screen enclosure. In response to the citation, the
applicant has submitted this variance request to rectify the situation. If approved, the owners would
then be required to obtain all necessary building permits and inspections.
Building Division records indicate the residence was constructed in 1976, and a permit was issued in
1977 for a patio slab. A patio slab does not have a setback because it is not considered a structure.
Also, a concrete slab poured for an open patio does not typically meet the same engineering standards
as slabs poured for screen enclosures intended to support solid roofs. There is no City record of a
building permit being issued for the screen enclosure that was destroyed by the hurricane in September,
2004. A building permit application (04-5807) dated November 30, 2004 was submitted to replace the
hurricane damaged screen enclosure. City plan review comments indicate the permit could not be
issued due to the setback encroachment of the proposed solid-roof screen enclosure. The contractor
proceeded to commence construction without the required building permit and inspections.
On July 15, 2005 the Building Division notified the contractor and property owner that the permit
application was about to expire and an inspector would perform a status check if they did not respond to
the letter. The status check revealed the work was completed without the necessary building permit
and inspections. A violation notice was issued and the case forwarded to Code Compliance on January
24, 2006. On April 3, 2006, and again on August 4, 2006, the property owner had pre-application
meetings with staff of the Planning and Zoning Division to review the variance application process. Staff
Page 3
306 SW 5th Ave (Jenkins)
File No. ZNCV 07-001
recommended in both meetings that the owners apply for a permit to revise the structure to a screen
roof to resolve the encroachment issue, since there was no hardship for a variance. On October 18,
2006 the property owner submitted this application request for a setback variance to allow the existing
screen enclosure to remain with a solid roof.
Staff surveyed the immediate neighborhood and it was observed that a few screen enclosures exist in
the area, however they had building permits and do not appear to be encroaching into the current rear
setback. Furthermore, City records show no other similar variances have been approved within this
neighborhood.
ANALYSIS
Staff reviewed the requested variance focusing on the applicant's response to criteria a - g below (see
Exhibit "("). The code states that the zoning code variance cannot be approved unless the board finds
that all of the following criteria apply:
a. That special conditions and circumstances exist which are peculiar to the land, structure, or building
involved and which are not applicable to other lands, structures or buildings in the same zoning
district.
The applicant's response does not adequately address criteria "a" above. Based on staff's research of
properties within the Mango Heights neighborhood, there are a few properties with screen enclosures
constructed with permits and inspections, and which comply with required setbacks without the need for
a variance. These lots were platted with the same or similar lot dimensions as the subject property and
are located within the same R-1-A zoning district. Therefore, no circumstances appear to be peculiar to
the land or structure involved which are not applicable to other lands or structures in the same zoning
district.
Building records for permits issued in Mango Heights date back to 1976 and are thorough lists by
address, although scanned copies of actual applications and permits are not available for periods prior to
15 years ago. The detailed record of permits issued for this address lists a patio slab permit in 1977 and
other permits, but no screen enclosure permit (see Exhibit "Oil).
b. That the special conditions and circumstances do not result from the actions of the applicant.
It is assumed that a contractor hired to do a job will know the code and will act in good faith. Building
records indicate the contractor was notified of first review comments on January 4, 2005, and second
review comments on January 26, 2005, but he apparently failed to inform the property owners of the
review comments and knowingly constructed the screen enclosure without permits and inspections. The
homeowners trusted the contractor who finished the job without securing the necessary permit,
resulting in the creation of special conditions by encroaching into the rear setback.
It is equally assumed that the homeowner is ultimately responsible for any action on his behalf. Even
though a homeowner hires a licensed contractor, the homeowner is ultimately responsible for any work
performed on the property (which is stated on the Building Division's website as a frequently asked
question). As such, the property owner is responsible for the outstanding enclosure permit, therefore,
the special conditions and circumstances are a result of actions of the applicant. The property owner
was aware that construction of a new screen enclosure required a building permit, and he signed a
building permit application affidavit which certified that "all work would be done in compliance with all
applicable codes, laws, rules and regulating governing construction and zoning". The applicant then
Page 4
306 SW 5th Ave (Jenkins)
File No. ZNCV 07-001
allowed the work to be done without a permit being posted on site as required, and without the proper
inspections. Staff believes that the variance would not have been necessary if the applicant had first
followed up on the permit before allowing the contractor to do the work. The applicant would have
been informed of the application review comments which noted that the permit request as presented
could not be approved, and the code regulations regarding the proper placement of a solid-roof screen
enclosure in the R-1-A zoning district.
c. That granting of the variance requested will not confer on the applicant any special privilege that is
denied by this ordinance to other lands, buildings, or structures in the same zoning district.
As mentioned in criteria "afT above, based on staff's research of properties within the Mango Heights
neighborhood, there are a few properties with screen enclosures constructed with permits and
inspections, and they complied with required setbacks without the need for a variance. These lots were
platted with the same or similar lot dimensions as the subject property and are located within the same
R-1-A zoning district. The minimum rear setback for the R-1-A zoning district was 25 feet and was
reduced to 20 feet in June, 2005. This standard setback for structures with solid roofs was established
to promote uniformity within the area, and to ensure accessibility for utilities maintenance, drainage,
and emergencies (there is an existing 6 foot easement for drainage and utilities along the rear property
line of the subject property). Furthermore, City records show no other similar variances have been
requested within this neighborhood. The granting of the variance requested would therefore set a
precedent for the area, which would be used as the basis for granting other variance requests with
similar circumstances in the future.
d. That literal interpretation of the provisions of this ordinance would deprive the applicant of rights
commonly enjoyed by other properties in the same zoning district under the terms of the ordinance
and would work unnecessary and undue hardship on the applicant.
Literal interpretation of the ordinance would not deprive the applicant of rights commonly enjoyed by
other properties in the same zoning district. Other properties have complied with the setback and
building permit requirements to enjoy their screen enclosures without the need for a variance. A screen
enclosure with a screen roof instead of a solid roof is allowed with a rear setback of eight (8) feet. The
applicants could obtain a building permit to have the solid roof removed and replaced with a screen roof,
and still enjoy a screened outdoor space without the need for a variance.
e. That the variance granted is the minimum variance that will make possible the reasonable use of
the lane!, building, or structure.
The reasonable use of the land is for a single-family residence on each lot. Only a few residences within
the Mango Heights neighborhood have screen enclosures. However, the subject property contains
sufficient space for a screen-roof screen enclosure which could comply with the required setbacks
without setting a precedent by granting a variance.
f. That the granting of the variance will be in harmony with the general intent and purpose of this
chapter [ordinance} and that such variance will not be injurious to the area involved or otherwise
detrimental to the public welfare.
Granting the requested variance would not be in harmony with the general intent and purpose of the
ordinance, which is directed toward health, safety, and welfare. In 1977 the property owner obtained a
building permit to pour a concrete slab for a patio. Documentation has not been submitted by the
applicant for any engineering inspections on this slab for its thickness and strength to support a solid
roof, and no building inspections have been performed. Approval of this variance request would require
Page 5
306 SW 5th Ave (Jenkins)
File No. ZNCV 07-001
the applicant to immediately apply for and obtain all required building permits and inspections, which
could result in the requirement for additional roof supports and modifications to the existing slab to
ensure a safe structure. It has been proven that no hardship exists, with the exception of economic
hardship to the applicants if the solid roof was replaced with a screen roof. However, the traditional
hardship criteria established in the City of Boynton Beach Code of Ordinances does not include any
provisions for economic hardship. The applicant has not submitted any letters from neighbors in
support of the requested variance. In addition, approval of this variance request could be construed as
condoning the construction of improvements without proper permits and inspections, and asking for
forgiveness after the fact.
g. For variances to minimum lot area or lot frontage requirements, that property is not available from
adjacent properties in order to meet these requirements, or that the acquisition of such property
would cause the adjacent property or structures to become nonconforming. Applicant shall provide
an affidavit with the application for variance stating that the above mentioned conditions exist with
respect to the acquisition of additional property.
Criteria g. is not applicable, as the request is for a reduced rear setback, not a variance to lot area.
RECOMMENDATION
Nearly all variances would likely be denied if based solely on all criteria for determining hardship as
stated in the Land Development Regulations, Chapter 1.5, Section 4.1. However, the hardship appears
to be self-imposed, and the variance request could be avoided by replacing the solid roof on the screen
enclosure with a screen roof. Therefore, based upon these findings, staff recommends that this request
be denied. No conditions of approval are recommended; however, any conditions of approval added by
the Planning & Development Board or the City Commission will be placed in Exhibit "E" - Conditions of
Approval.
It should be stated that this analysis and recommendation were not influenced by the current existence
of the improvement, nor does it support or justify construction of any improvement without a permit, or
exempt the property owner from any penalty applicable to construction activity conducted without
proper permits and inspections.
S:\Planning\SHARED\WP\PROJECTS\306 SW 5th Avenue Variance Jenkins\Staff Report.doc
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EXHIBIT "e"
Reply to Question A:
My neighbors to the East, South and West do not have a patio. My neighbor to the
North is across the street and I don't know if they have a patio. Our house was built
in the early nineteen seventies. At that time a permit was required to pour a
concrete foundation patio and granted; according to Boynton Beach records. Also,
the city of Boynton Beach was unable to find the permit that was pulled for the
patio screen enclosure. I was told by the city of Boynton Beach that records after
fifteen years are not available.
Reply to Question B:
When Hurricane Francis came thru our area in 2004 large mango tree branches
crushed my patio. I contracted a licensed contractor to remove my destroyed patio
and rebuild a new one. I instructed the contractor to rebuild it to the same
dimensions as the old patio. I then insisted that they pull permits from the city of
Boynton Beach before they started this project. I was assured by this contractor that
they would have the permit prior to starting the work. I'd like to note here that I
rented this property in 2000 and purchased it in 2002. The patio with the screened
enclosure was up in the year 2000. I did nothing to change it prior to Hurricane
Francis. The patio was an eyesore. It was old and had a pan roof. Had I known
that this patio did not have an original permit pulled for it when it was built, I never
would have bought the house. Had I not insisted that the repair work be done
under the proper code of Boynton Beach, I would not be having this problem now. I
am not the kind of person that does not do things by the book but in this case going
by the book has been a nightmare for my entire family.
Reply to Question C:
I don't think that the granting of my request of variance to the building code of
Boynton Beach will give me any more privileges then any other homeowner in
Boynton Beach. This patio was here before any of the current residents in the
neighborhood moved into the area. My patio is in my backyard and cannot be seen
from the street or by my neighbors to the East, West or South.
Reply to Question D:
The issue here is that this patio was built before I rented this house in 2000. It was
built under the existing code of Boynton Beach at the time of construction; which
was in the mid to late 1970's. This was verified by the permit filed with Boynton
Beach. Due to the fact that Boynton Beach does not have records past 15 years we
do not know for sure exactly when the patio was covered. But we do know it was
before the year 2000.
As I stated before due to Hurricane Francis destroying this existing patio I
contracted with J. White, a licensed contractor, to remove the damaged material
and rebuild a new one. Once again I want to reiterate that I insisted that J. White
obtain all the necessary permits prior to commencement; I wanted this done by the
book. I instructed my contractor that I wanted the new patio built to the same
dimensions as the old one. I was not made aware of the fact until one year later that
the permit had been denied.
I do not think that the granting of this exemption will in any way impede the
purpose of the building codes of Boynton Beach. As I said before the patio cannot
be seen from the street, it is in the backyard of my home and is completely fenced in
by a privacy fence. Since the year 2000 I have not received one complaint from my
neighbors on the old patio. This new patio, although built to the same dimensions as
the old one, is not an eyesore. It, in fact, improves the neighborhood.
I could have had the work done by an unlicensed handyman. The work could have
been completed and probably no one would have been the wiser. It is only because I
am the type of individual that follows the rules, regulations and laws that we are in
this situation today. If I had made changes to the size, shape and looks of the patio I
would expect to adhere to the code book to the letter; but I didn't change the size,
shape or looks. I kept it exactly the same.
Please don't instill undo hardship on me and my family by following the letter of the
law on this situation. My wife and I purchased this property because we loved
everything about it. We purchased in Boynton Beach because we believed it was a
great area to live and raise our children. One of the biggest reasons we fell in love
with this home was because of the patio; as we spend more of our time in the patio
than any other place else in the house excluding the bedrooms. So I ask you to
please, just once and only once, grant us this variance in the code book. To follow
the true spirit of the law instead of the letter of the law.
Response to Question E:
As I stated previously, I am pleading with the City of Boynton Beach to grant me
this variance so that I can keep my patio as is now stands.
Response to Question F:
Should the City of Boynton Beach respond to my request for variance in the true
spirit of the law it will in now way effect the safety, appearance or integrity of my
covered patio. The old patio was an eyesore to the neighborhood. It was old and
dilapidated. This new patio, built on the same ground and in the same dimensions,
has proven its safety and structural durability by withstanding the last hurricane of
2005. As I stated before because this patio is in the back of my house it is not visible
from any direction it will not have any effect on the value of the surrounding homes
in my neighborhood. However, if a perspective buyer of a neighboring home were
to come into my back yard this new patio would certainly have a positive effect on
home values.
Response to Question G:
My request for this variance has no effect on the requirements governing the lot
frontage. This variance request asks for allowing my patio roof line to extend just
five feet out, as the old patio did. This five foot extension in no way has any effect
on easement access. The property lot directly adjacent to this five foot roof line
extension is not for sale. This property is not for sale and consists of a one story
home. During the 6 years that I have lived here the five foot extension has never
caused a hardship on anyone attempting access to the easement. It also has never
caused a problem for my neighbor who lives adjacent to it.
AFFIDAVIT
The above mentioned conditions exist with respect to the acquisition of additional
property.
,,';.':(..~'f;:'~, JOHN R. VIOlA
{~f"Ji."''), MY COMMISS!ON # 00 358755
~\~.;;.f EXPIRES: .I~I)!lary 29,2009
'''7,i;,%~~~l Bonded Thru Notary Public Underwriters
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306 S. W. 5th Avenue
Boynton Beach, Fl. 33434-5552
EXHIBIT "0"
Legal: Mango lIeiqhts
BIk.
Lt. 44
Use: Res!rlentiaI
ZOne: RI~
Microfilm:
S ~ 250.
Address: 30 G S. W. 5th Avenue
5
9
2/
6
Issue PeImit Final C.O.
Date ~. Cbntractor Architect <Mner Valuation Fee Date ~. Purpose
28/76 16621 H.A.P. Builder 1st Fed. ~/;270. 40. fHl 12/28/7f 911711 Complete existinry st.rnc
!'lave & T.n (Sinqle Family )
/18/77 77-0937 Wallin Roofing Kellar 1200. 6.00 7/27/77 reroof (24)
/2/77 77-1590 Owner Keller 100. 8. 12/1/77 11ab
12/74 11106 International I v. Void Fam. Res.
/12/81 81-1336 Gutters Un1im ted Hotaling 120. 8. 6/22/8 gutter & downspout
~ ,
9/
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Issue
Date
Permit
No.
I 14',,..,;:a-'
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Contractor
OWner
Valuation Fee
Date
Purpose
MOCHANlCAL
Issue permit Firial .
Date No. Contractor Owner Valuation Fee Date Purpose
PI1JMBING
"\~
-
Issue Penni. t Final
,
Date No. Contractor OWner Valuation Fee Date Purpose
16052 Finch & Sons 1st Fed. 5. 5/19/76 Sewer Conn. Fix 10
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CITY OF BOYNTON BEACH
Global Locati~ Inquiry - Building Permit 'pplications
1/25/05
08:43:15
Property address
PCN . . . . . . .
306 SW 5TH AVE
08-43-45-28-39-000-0440
Type options, press Enter.
2=Application inq 3=Structure inq 4=Permit inq 5=Inspection inq
Opt Appl Nbr
04 00005807
97 00004511
96 00000254
94 00001741
86 00005759
F3=Exit
Type
SE
BL
RR
RR
OW
F12=Cancel
Stat Date
PC 12/28/04
FI 9/17/97
AP 1/18/96
RJ 4/28/94
CL 6/13/86
Tenan t Nbr /Name
REPLACE SCREEN ENCL
NEW GARAGE DOOR
20 SQUARES SHINGLES
SHINGLE TO SHINGLE
EXHIBIT "E"
Conditions of Approval
Project name: 306 SW 5th Avenue, Jenkins
File number: ZNCV 07 -00 1
Reference:
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS- Solid Waste
Comments: None
PUBLIC WORKS - Forestry & Grounds
Comments: None
PUBLIC WORKS- Traffic
Comments: None
UTILITIES
Comments: None
FIRE
Comments: None
POLICE
Comments: None
ENGINEERING DIVISION
Comments: None
BUILDING DIVISION
Comments: None
PARKS AND RECREATION
Comments: None
FORESTER/ENVIRONMENTALIST
Comments: None
Conditions of Approval
306 SW 5th Ave/ZNCV 07-001
Page 2
DEPARTMENTS INCLUDE REJECT
PLANNING AND ZONING
Comments: None
ADDITIONAL PLANNING & DEVELOPMENT BOARD CONDITIONS
Comments:
1. To be determined.
ADDITIONAL CITY COMMISSION CONDITIONS
Comments:
I 1. To be determined. I I I
S:\Planning\SHARED\WP\PROJECTS\306 SW 5th Avenue Variance Jenkins\ZNCV 07-001\COA.doc