REVIEW COMMENTS
7.A.l
444 SW 7TH COURT (Di Nizo - fence
height) (ZNCV 07-004)
ZONING CODE VARIANCE
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 07-051
STAFF REPORT
FROM:
Chair and Members
Planning and Dev~o~w~t Board and City Commission
Michael W. RumpihW
Planning and Zoning Director
Kathleen Zeitler t6
Planner
TO:
THRU:
DATE:
August 21, 2007
444 SW ih Ct (Di Nizo Variance) / ZNCV 07-004 Fence Height
PROJECT NAME/NO:
REQUESTS:
Request for relief from the City of Boynton Beach Land Development
Regulations, Chapter 2, Zoning, Section 4,).1, limiting a fence to a maximum
height of four (4) feet along both road frontages on a corner lot when the
fence is located in front of the building line, to allow a 2-foot variance, and a
six (6) foot high fence on the west side of the property.
PROJECT DESCRIPTION
Property Owner: Philip and Dorothy Di Nizo
Applicant/Agent: Philip and Dorothy Di Nizo
Location: 444 SW ih Court
Existing Land Use/Zoning: Low Density Residential (LDR)/ R-1A
Proposed Land Use/Zoning: No changes are proposed
Proposed Use: Fence for single-family residence
Acreage: 0.21 Acre (9,172 square feet)
Adjacent Uses:
North:
SW ih Court right-of-way, and farther north, a single-family residence zoned R-1-A;
South:
A single-family residence zoned R-1-A;
East:
A single-family residence zoned R-1-A; and
West:
SW 4th Street right-of-way, and farther west Interstate 95 right-of-way.
Staff Report
Memorandum No PZ-07-051
Page 2
BACKGROUND
The subject property is generally located south of Boynton Beach Boulevard, adjacent to and east of 1-95 (see
Location Map - Exhibit "A"). The address of the subject property is 444 SW ih Court (Lot 17 of Fern Ridge
Subdivision), and consists of a corner lot located at the southeast corner of SW ih Court and SW 4th Street.
The subject property is zoned R-1A, Single-family Residential. The lot is currently developed with a single-
family residence that generally conforms with the R-1A zoning district requirements.
Since the subject property is a corner lot, for setback purposes, each property line adjacent to a street is
considered to be lot frontage. Lot Frontage is defined in the Land Development Regulations as "the property
line adjacent to a public or private street; it is also the front property line". Typically, a corner lot has a front
setback and a side corner setback from property lines adjacent to each street. Due to the orientation of the
residence, the north property line (along SW ih Court) is the front, and the west property line (along SW 4th
Street) is the side corner. In addition, the east property line is the side interior, and the south property line is
the rear.
Chapter 2, Zoning, Section 4,J. of the Land Oevelopment Regulations states the following: "fences in
residential zones that are in front setbacks, from the building line forward to the property line, are limited to a
maximum height of four (4) feet. On corner lots, both road frontages are subject to the four (4) foot height
limitation". The subject property is a corner lot with an existing six (6) foot wood privacy fence which
extends from the front corners of the residence to each side property line, and extends south along the side
and rear property lines to provide privacy by screening the backyard pool area. The portions of the fence
which are not in compliance with the above height limitation are those located west of the residence within
the side corner yard along SW 4th Street (see Exhibit "B" - Site Plan).
A letter from Code Compliance to the Oi Nizo's dated October 16, 2006 outlines and summarizes the issue of
non-compliance (see Exhibit "C" - Letter and Backup Information). Records indicate that the Oi Nizo's
purchased the house on July 25, 2005 and the 6 foot fence was existing at that time. In April, 2006 a
violation notice was issued to the Oi Nizo's for the fence, which was installed without permits and inspections.
A building permit application, including the required easement consents, was submitted in July, 2006. The
following review comments were forwarded to the fence contractor: "Per city ordinance #05-034 any fence
in front of the building line may not exceed 4 feet in height. On corner lots both road frontages are subject to
this limitation. Please reduce in height along SW 4th to comply, or relocate the fence back to the building line"
(a minimum of 12.5 feet from west property line). An affidavit of compliance was issued based on a 1987
fence permit for the applicant's address, however, after aerial photographs indicated a complete absence of a
fence on January 15, 2005 and the existence of a fence on July 1, 2005, the affidavit of compliance was
withdrawn as "issued in error". On October 3, 2006 another notice of violation was issued for the fence on
the subject property.
ANALYSIS
Staff has reviewed the requested variances focusing on the applicant's response to the following criteria a - g
below (see Exhibit "0" - Applicant's Justification). The code states that the zoning code variance cannot be
approved unless the board finds the following:
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.
Staff Report
Memorandum No PZ-07-051
Page 3
Special conditions exist which are peculiar to the location of the subject property. The subject property is a
corner lot, and is therefore subject to a front setback as well as an increased side (corner) setback due to the
lot's exposure. The area of the subject property where the variance is needed is located adjacent to SW 4th
Street which is parallel to Interstate 95 and it's associated sound wall to the west. Since there will never be
any residential structures to the west of this property, the fact that the fence is six (6) feet does not affect
any adjacent neighbors. Also, there is a 15.5-foot grassed swale between the fence and the paved street
that provides what would appear as a typical fence setback within the neighborhood. In addition, the existing
pool was constructed by previous owners and located in the southwest corner of the lot rather than directly to
the rear of the residence, requiring the privacy fence to extend west of the residence into the side corner
setback.
b. That the special conditions and circumstances do not result from the actions of the applicant.
Special conditions and circumstances do not result from the actions of the aplicant. When the applicant
purchased the property the fence and pool were already constructed.
c. That granting 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.
The granting of the requested variance will not confer any special privilege upon the applicant. Several 6-foot
high fences on other corner lots in the area were researched to confirm permits were granted without the
need for a variance. It is likely that such approvals occurred prior to the June, 2005 revisions to the Land
Development Regulations, when fences on corner lots were not restricted to the current limit of four (4) feet
when located within the side corner setback.
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.
The subject fence is intended to provide screening for privacy around the rear yard and pool area, and to
simutaneously satisfy the pool security screening requirement which is a minimum of four (4) feet pursuant to
the Florida Building Code. Although the fence could be reduced by two (2) feet to meet this safety
requirement, that would deprive the applicant the same privacy and screening benefit enjoyed by others.
Prior to June of 2005, fences constructed on corner lots within the side corner setback could be six (6) feet in
height without the need for a variance.
e. That the variance granted is the minimum variance that will make pOSSible the reasonable use of the
land, building, or structure.
The applicant's proposal is to provide the minimum safety and desired privacy barrier that will make possible
the reasonable use of the backyard pool area. Due to the location of the existing pool, the fence around the
pool is required to be located within the 12.5 foot side corner building setback, and therefore limited to four
(4) feet in height. Although the proposed six (6) foot fence height is not the minimum, this request would
not appear to constitute a special privilege or be incompatible with the adjacent properties. The existing 15.5
feet of grassed area between the fence and the street provide a greenbelt, and the location of the fence does
not affect any adjacent residential properties.
f. That the grant 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
Staff Report
Memorandum No PZ-07-051
Page 4
to the public welfare.
Granting the variance would still meet the intent of the ordinance, and would not be injurious or detrimental
to the public welfare. The Code states: "On corner lots, both road frontages are subject to the four (4) foot
height limitation, in accordance with Chapter 2, Section 4.E. Visual Obstructions". Section 4.E. states that "no
fence, sign, planting, hedge, shrubbery, wall or ther visual obstruction shall be created or maintained with a
height greater than two feet six inches above the street level, within 25 feet of the intersection of two (2)
streets, in any zone, except that open chain-link fence type fences may be a maximum of four (4) feet and
kept visually clear". The site plan of the subject property indicates the safe sight corner. The fence is not
located in the safe sight corner and therefore would not be a visual obstruction to motorists.
g. 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.
Criterion "g" does not apply as the variance request is for fence height, not lot area or frontage requirements.
RECOMMENDATION
Based on the analysis contained herein, staff recommends approval of the requested fence height variance.
Staff concurs with the applicant that special conditions and circumstances exist that are not the result of
actions by the applicant, and staff finds that a "hardship" exists. This request will not be injurious or
detrimental to the area. The applicants' intent to combine a pool safety fence and a privacy fence is
reasonable. Staff therefore recommends that the request for a 2-foot variance to allow a six (6) foot high
fence be approved.
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.
S:\Planning\SHARED\WP\PROJECTS\444 SW 7th Ct\Staff Report Di Nizo ZNCV 07-004.doc
Exhibit ..A.. - Site Locatioi'rMap
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Certified To : Philip T. Di Nizo Jr. anti Dorothy M. Di Nizo, husband and wife;
Stella Suarez-Rita, PL torneys' Title Insurance Fund, Inc.
Property Address: 444 SW 7th Court, Boynton Beach, FL '
Flood Zone: C (FIRM 120196 0003C 9-30-82)
Description:
Lot 17, FERN RIDGE, according to the Plat thereof as recorded in Plat Book 26,
Page 115, of the Public Records of Palm Beach County, Florida.
Permit No. b'btj'
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I) nlls SURVEY IS HOT TO BE USED roR CONSTRUCTlOH OR DESIGN PURPOSES.
2) Lemas shown hereon wer. not nbstrncted by this oFfice for easeMents,
right-or-ways, or other'lnstruMents or record.
3) No underground l...pro\ll!M,nts locntl!d unll!ss shown.
4) All bearIngs and dlstonces shown hereon ore plot ond Measurl!d unll!ss
oth"rwl5e not"d.
5) Un\I!5S It b"ors thl! slgnlltU"" and the orlglnol rolsed 5eol of 0 norldo
IIcensl!s sur\ll!yor ond MIIPper, this Mop/report Is for InForMotloMOI purposl!.
only nnd Is not \lolld.
6) This firMS 'CI!rtlflcotl! 0' A1AthorlzQ tloM' nunber Is 'LD 6838'.
EXHIBIT "e"
The City of Boynton Beach
1 00 E. Boynton Beach Boulevard
Boynton Beach, Florida 33425-0310
Phone: (561) 742-6100
Fax: (561) 742-6185
G. Matthew Immler, Chief of Police
Scott Blasie, Code Compliance
Administrator
Phone: (561) 742-6120
Fax: (561) 742-6838
October 16, 2006
Philip T. & Dorothy M. Di Nizo
655 Riviera Drive
Boynton Beach, FL 334356152
RE: Affidavit of Compliance Issued in Error for Case 06-851 - 444 SW 7th Court
Dear Mr. & Mrs. Di Nizo:
As per request via the City Manager's office I've reviewed the issues regarding the violations
associated with Code Compliance cases 06-851 and 06-2472. The following information
provides a chronological picture with regard to the fence that is central to this issue:
· July 19, 2005 - Ordinance #05-034 changed existing requirements for comer lots
lowering the height for fences from 6 feet to 4 feet.
. April 4, 2006 - Violation Notice issued for a fence installed without permitlinspections
as per Red Tag from the Development Department.
. July 13, 2006 - Bulldog Fence application for permit filed (application #06-5191)
· September 14, 2006 - Affidavit of Compliance Issued based on conversation with Karen
Main relative to permit #87-344 (Fence)
· October 3, 2006 - Bulldog Fence requested permit #06-5191 be voided.
· October 3,2006 - Notice of Violation issued by Officer Webb as per Red Tag from
Development dated 9/26/06 to include the fence as well as a newly installed shed, both of
which require permits/inspections.
Summary:
The Code Compliance Division issued the Affidavit of Compliance to you in error based on
information obtained from you along with proof of an existing fence associated with permit #87-
344. Subsequent review of two sets of aerial photographs clearly indicates the complete absence
of a fence on January 15,2005 and a new fence on July 1, 2005. It's my understanding you
purchased the house on July 25,2005 and therefore you are now responsible for the permitting of
this fence. I apologize for this oversight on our behalf however, the fact remains that we have a
fence and a shed that need to be legally permitted and inspected to ensure compliance with our
Codes.
America's Gateway to the Gulfstream
Page 2
As we discussed on October 13 th, I did my best to research this matter to the extent you may have
been able to keep the 6 foot height on the S.W. 4th Street side, but as you'll note above the Code
was amended prior the installation of the fence. My office will work with you in terms of
providing you the time necessary for you to work through the permitting of the fence and the
shed and will assist you in any way possible to help you complete this process. If you should
have any questions at all, please don't hesitate to contact me.
Sincerely,
Scott Blasie
Code Compliance Administrator
C: Carisse LeJeune, Assistant to the City Manager
Quintus Greene, Director of Development
Bill Bucklew, Building Official
Karen Main, Plans Analyst
Diane Springer, Administrative Assistant - Code Compliance
Courtney Cain, Code Compliance Officer
Willie Webb, Senior Code Compliance Department
File
EXHIBIT "D"
Applicant's Justification for Variance Request
(Response to Criteria A-G)
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 fence was already on the property when we purchased the house.
B. That the special conditions and circumstances do not result from the actions of the applicant.
The fence was already on the property when we purchased the house.
C That granting 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.
There are several corner properties in the immediate area with the same 6 foot fences plus
corner properties with hedges from 6 to 10 feet as shown on the pictures enclosed.
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.
Yes, other properties have 6 foot fences or hedges higher than 6 feet on corner lots.
E. That the variance granted is the minimum variance that will make possible the reasonable use
of the land, building, or structure.
Sitting in our back yard without looking at a 12 foot yellow cement wall as shown in picture
labeled #1. Reasonable use for privacy. Hardship, I am sure it would be almost impossible to
sell our house, should we decide to do so in the future, without the privacy of the fence.
F. That the grant 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.
The fence is not an obstruction on either side as it is approximately 30 feet from the road on
the north side and approximately 15 feet back from the road on the west side.
G. 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.
This criterion does not apply as the variance request is for fence height, not lot area or
frontage requirements.
EXHIBIT "E"
Conditions of Approval
Project name: 444 SW 7th Ct / Di Nizo Variance
File number: ZNCV 07-004
Reference:
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS- General
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/ENVIRONMENT ALIST
Comments: None
PLANNING AND ZONING
Comments: None
Conditions of Approval
P 2 f2
age 0
DEPARTMENTS INCLUDE REJECT
ADDITIONAL PLANNING & DEVELOPMENT BOARD CONDITIONS
Comments:
To be determined.
ADDITIONAL CITY COMMISSION CONDITIONS
Comments:
To be determined.
S:\Planning\SHARED\WPIPROJECTS\444 SW 7th Ct (Di Nizo)\COA.doc
S:\Planning\Planning Templates\Condition of Approval 2 page -P&D ORA 2003 form.doc