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CITY COUNCIL AGENDA ITEM NO. 38B

Meeting Date: November 13, 2007

Subject/Title: Public hearing to consider an application for a variance (V 07-03) to allow reduced setbacks for an existing pool and spa located at 2876 Falcon Court (APN 018-380-003).

Prepared by: Debbie Hill, Associate Planner

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION
Staff recommends that the City Council adopt the attached resolution approving the variance for the reduction in the required setbacks for the existing pool and spa.

BACKGROUND
In 2000, The Gardens project was approved for Pulte Home Corporation for 120 lots located within the Brentwood Park subdivision (TSM 8226), generally north of Lone Tree Way and east of O’Hara Avenue. On May 10, 2001, a temporary use permit (TUP 01-03) was approved for the model home complex for this project which included a total of four model homes. As is typical for model home complexes, Pulte constructed accessory structures, including arbors, trellises, cabanas, pools and spas in the yards of these four model homes.

Subsequent to the sales of the production homes in the project, Pulte removed the trap fence around the model home complex and sold each of the model homes to individual homeowners. One of the homes at 2876 Falcon Court was subsequently sold to Randy Mass. This particular two-story house model was one of the model homes which had been improved with a cabana, a pool and a spa in its rear yard.

At some point after his purchase, Mr. Mass discovered that the pool and spa, as well as the cabana, did not meet the required setbacks. Therefore, a variance to the pool and spa setbacks is being requested so that these structures may be retained in their current location and not altered. It should be noted that pursuant to the Brentwood Municipal Code, the City Council, not the Planning Commission, has the authority over the granting of a variance for pool and spa setbacks.

As a separate matter, the Council is being asked to act on an appeal filed on the Planning Commission’s denial decision on a related variance application for setbacks for a cabana located on this same lot. This pool and spa variance request (V 07-03) has been continued from both the September 25, 2007, and October 9, 2007, City Council meetings in order to allow the Council the opportunity to hear both matters at the same meeting.

PROJECT DESCRIPTION
Pulte Home Corporation is requesting approval of a variance from the required setbacks identified in Section 8.20.030.C of the Municipal Code for the pool and spa which it constructed on the property at the time of the original construction of the model homes for Brentwood Park. Swimming pools and spas are required to be setback a minimum of 5’ from the waterline to the property line. The specific request is to allow the spa to encroach into the required setback 7.5” (reducing the setback from 5’ to 4’-4.5”) and the pool to encroach into the required setback 1’-2” (reducing the setback from 5’ to 3’- 10”). In addition to the pool and spa, the project site is currently developed with a 3,956 square foot two-story home and a cabana, all located on a 7,700 square-foot lot at 2876 Falcon Court.

ANALYSIS
Staff researched the permit and inspection history and found that the building permit application for the pool and spa was approved with the appropriate 5’ minimum setbacks from the side and rear property lines, as required by the Municipal Code. At the time of construction of the model home complex and subsequent construction of the pool and spa, however, staff has surmised that the property line markers were not well defined due to the ongoing construction. This resulted in the pool and spa being constructed slightly closer to the property lines than as shown on the approved building permit plan, and subsequently the building inspectors approved the construction of the pool and spa at their current locations.

Section 8.20.030.C of the Brentwood Municipal Code states, “Any swimming pool constructed after the effective date of the ordinance codified herein shall be so placed that it is at least five feet from any rear or any side lot line. Except on variance granted by the City Council, the distance may be reduced to three feet, so that the pool clears a line extending toward the pool at a forty-five-degree angle downward from the base of the foundation of any main building....”

Section 17.860.005 of the Brentwood Municipal Code lists the four findings required to be made in order to approve a variance, as follows:

1. That strict compliance with the specified regulation would result in practical difficulty or unnecessary hardship inconsistent with the purposes of the zoning regulations, due to unique physical or topographic circumstances or conditions of design; or alternatively that strict compliance would preclude an effective design solution improving livability, operational efficiency or appearance.

Staff believes that the unique circumstances by which the pool and spa were originally approved and constructed now preclude an effective design solution. This means that in order to comply with the 5’ setbacks required by Section 17.660.007.E of the Municipal Code, the pool and spa would need to be demolished and reconstructed the required distance from the property lines. This would cause a disruption to the homeowner and surrounding neighbors, and at a cost that would be significant, which would most likely render it infeasible. In addition since the backyard is fully improved, demolishing the pool and spa and relocating them could have a domino effect in that other features may then need to be demolished and/or moved.

2. That strict compliance with the regulation would deprive the applicant of privileges enjoyed by owners of similarly zoned property; or alternatively that strict compliance would preclude an effective design solution fulfilling the basic intent of the applicable regulations.

Staff believes that the basic intent of the zoning regulation has been adhered to in that the pool and spa are positioned away from the property line a sufficient distance to allow navigation around them, and that Section 8.20.030.C of the Municipal Code allows for a reduction in the required setback to 3’ from the property lines on approval of a variance by the City Council, which fulfills the basic intent of the regulations.

3. That if granted, the variance will not adversely affect the character, livability or appropriate development of abutting properties or the surrounding area, and will not be detrimental to the public welfare or contrary to adopted plans or development policy.

Staff believes that approval of the requested variance would not adversely affect adjacent properties or the surrounding neighborhood, in that the subject pool and spa have been in existence for over five years with no adverse effect, and no comments have been received regarding them from adjacent neighbors prior to this application.

4. That the variance will not constitute a grant of special privilege inconsistent with limitations imposed on similarly zoned properties or inconsistent with the purposes of the zoning regulations.

Staff does not believe that approval of the requested variance would constitute a grant of special privilege inconsistent with the purposes of the zoning regulations, given that the pool and spa were approved with 5’ setbacks to the respective property lines, and that it was only through an error in the field during the construction and inspection process which resulted in the reduced setbacks.

Staff believes that each of the required findings can be made as indicated above in order to approve the requested variance. In general, variances should only be approved for unique situations, or in cases where special circumstances apply to properties. As a result, variances should also be well-scrutinized to ensure that their integrity is maintained for future requests.

This situation is particularly unique in that the locations for both the pool and spa were approved by the City as part of the building permit process, which includes a site plan showing the locations of the pool and spa with 5’ setbacks from the side and rear property lines in accordance with the requirements of the Municipal Code. It is only through an error in the field, which staff believes was caused by inaccurate property line markers, that the pool and spa were constructed too close to the property lines.

Staff would like to point out to the Council that Mr. Mass signed the application for the pool and spa variance, and should the Council grant approval of the variance, the pool and the spa would then be considered legal structures.

In conclusion, staff believes that the request is appropriate and recommends that the City Council approve the variance to reduce the required setbacks for the pool and spa.

ENVIRONMENTAL DETERMINATION
This type of project qualifies as a categorical exemption under Section 15305 (Minor Alterations in Land Use Limitations) of the California Environmental Quality Act (CEQA). No further environmental review is necessary.

FISCAL IMPACT
The applicant paid a variance application fee in the amount of $2,652.00.


Attachments:
1. Resolution approving V 07-03
2. Vicinity Map
3. Aerial of the Site
4. Approved site plan showing the pool and spa location

CITY COUNCIL RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A VARIANCE (V 07-03) TO ESTABLISH REDUCED SETBACKS FOR AN EXISTING POOL AND SPA LOCATED AT 2876 FALCON COURT (APN 018-380-003).

WHEREAS, Pulte Home Corporation has submitted a variance request on behalf of the property owner, Randy Mass, to establish reduced setbacks for an existing pool and spa located at 2876 Falcon Court; and

WHEREAS, the City of Brentwood previously approved TSM 8226 on November 16, 1999, PD-29 on December 14, 1999, and DR 00-23 on September 5, 2000; and

WHEREAS, the City of Brentwood approved TUP 01-03 on May 10, 2001, and the pool plot plan for 2876 Falcon Court on April 17, 2001; and

WHEREAS, a Notice of Exemption under Section 15305 (Minor Alterations in Land Use Limitations) of the CEQA Guidelines has been prepared for this variance and no additional environmental review documentation is necessary; and

WHEREAS, a duly noticed public hearing was advertised in the Brentwood Press on September 14, 2007, and mailed to property owners within 300 feet of the site as required by City Ordinance and Government Code Section 65090; and

WHEREAS, at the City Council meeting of September 25, 2007, said public hearing was continued to the meeting of October 9, 2007, at which meeting said public hearing was again continued to the meeting of November 13, 2007; and

WHEREAS, the City Council held a public hearing related to the proposed request on November 13, 2007, and has considered the staff report and testimony received by the applicant and other interested parties.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood:

A. Hereby finds and determines that:

1. Strict compliance with the regulations would preclude an effective design solution in that in order to comply with the 5’ setbacks required by Section 17.660.007(E) of the Municipal Code, the pool and spa would need to be demolished and reconstructed the required distance from the property lines, causing a significant disruption to the homeowner and surrounding neighbors and at a cost that would be significant, which would most likely render it infeasible, and since the backyard is fully improved, demolishing the pool and spa and relocating them could have a “domino effect” in that other features may then need to be demolished and/or moved; and

2. Strict compliance with the regulation would preclude an effective design solution fulfilling the basic intent of the applicable regulations in that the pool and spa are positioned away from the respective property line a sufficient distance to allow navigation around them, and that Section 8.20.030.C of the Municipal Code allows for a reduction in the required setback to 3’ from the property lines on approval of a variance by the City Council, which fulfills the basic intent of the regulations; and

3. The variance will not adversely affect the character, livability or appropriate development of abutting properties or the surrounding area, and will not be detrimental to the public welfare or contrary to adopted plans or development policy in that the pool and spa have been in existence for over five years with no adverse effect, and no comments have been received regarding them from adjacent neighbors prior to this application; and

4. The variance will not constitute a grant of special privilege inconsistent with limitations imposed on similarly zoned properties or inconsistent with the purposes of the zoning regulations, given that the pool and spa were approved with 5’ setbacks to the respective property lines, and that it is surmised the property lines were not correctly marked in the field resulting in an error of measurement during the inspection process which resulted in the reduced setbacks.

B. Hereby approves Variance No. 07-03 to allow reduced setbacks for an existing pool and spa located at 2876 Falcon Court (APN 018-380-003).

PASSED by the City Council of the City of Brentwood at its regular meeting of November 13, 2007, by the following vote:

 
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