Staff Report TO: FROM: RE: Chesapeake Board of Zoning Appeals Dale Ware, AICP, CZA Application # ZON-BZA-2017-00022 1430 Oleander Avenue Hearing Date: September 28, 2017 Application # ZON-BZA-2017-00022 Edward E Eder IV, property owner, 1430 Oleander Avenue, requesting a variance of 5 feet, from Section 14-201.A.4.c.i of the Chesapeake Zoning Ordinance, to reduce the secondary front yard setback of 5 feet to 0 for a proposed 6-foot tall fence in the secondary front yard and along the property line adjacent to the Cobb Avenue. The property is further identified as 14 BLK 20 N HGLDS SUB 1; Real Estate Parcel No. 0201001005852; Zoning Classification R-6, residential. Background Information: The applicant applied for an administrative approval to install a 6-foot tall fence in the secondary front yard with the required 5-foot buffer yard. Adjacent property owners were notified of the request. After the 15 day review period was complete no objections were received from the neighbors. However, the owners decided they wanted to reduce the setback to zero to place the 6 tall fence along the property line adjacent to Cobb Avenue. The applicant is requesting a variance to reduce the 5-foot setback to zero to install a 6- foot tall fence in the secondary front yard. This application was advertised in the Chesapeake Clipper section of the Virginian Pilot Newspaper and adjacent property owners were mailed notice of this request in accordance with Section 15.2-2204 of the Code of Virginia. A public notice sign was provided to the applicant to post on the property pursuant to the requirements of Section 20-702.E of the Chesapeake Zoning Ordinance. Staff Analysis and Recommendation: Sections 20-402.A & B of the Chesapeake Zoning Ordinance and Section 15.2 2309 of the Code of Virginia require certain standards be met for the Board of Zoning Appeals to grant a variance. These standards are listed at the end of this report as an excerpt from Section 20-402.A & B of the Zoning Ordinance. To approve the variance the Board must find, conditioned upon the applicant having acquired the property in good faith, that the applicant s situation is unique due to the particular physical surroundings, size, shape, topographical condition or other extraordinary situation and not shared by other properties in the same zoning district and vicinity, that the denial of the variance would result in undue hardship rather than an inconvenience, that the character of the district would not be changed as a result of the granting of the 1

variance, and that the situation is not such of a general nature that would require a text amendment to the Zoning Ordinance to achieve compliance. The variance application and background information provided by the applicant does not meet all of the criteria needed for the granting of a variance as the applicant has not shown that the denial of the variance would effectively prohibit or otherwise unreasonably restrict the current use of the property. There appears to be no evidence to show that the variance application, if granted by the Board, would not amount to alleviating a hardship rather than an inconvenience. Moreover, the applicant has not demonstrated a hardship as the applicant has the ability to use and could meet the required 5-foot setback for a 6-foot tall fence (has received approval for the administrative waiver) or could reduce the fence height to 4 feet in the secondary front yard. With this information and along with the strict construct of state law and the Zoning Ordinance dealing with the requirements for the granting of variances, staff recommends denial of this variance to the Board. EXCERPTS FROM CHESAPEAKE ZONING ORDINANCE 14-201. Fences, walls and hedges on residential property A. Height limitations. Except as provided for below, all fences, walls and hedges located on any property in a single-family or two-family residential zoning district classification or in the A-1 agricultural zoning district if used for residential purposes, shall be subject to the following height limitations: 1. Established front yard, a maximum of four (4) feet in height. 2. along or behind the interior edge of the established front yard: a. Fences and walls, a maximum of six (6) feet in height. b. Hedges, no height limitation. 3. For corner and through lots, all fences, walls and hedges which are in front of the interior edge of the required front yard of the adjoining lot shall not be higher than four (4) feet. Fences, walls and hedges located on lots platted as interior lots that have been converted to through lots by subsequent development on adjacent property shall comply with the height limitations set out in section 14-201.A.2. of this ordinance. The property owner or agent shall have the burden of demonstrating that an interior lot has been converted to a through lot by subsequent development on adjacent property. 4. The zoning administrator may approve the issuance of a building permit for a fence or wall higher than four (4) feet in the secondary front yard of a residential corner lot or through lot under the conditions set out in subparagraphs a. through f. below. a. The height of the fence or wall does not exceed six (6) feet. b. The fence or wall is constructed on or behind the building line established by the front of the principal dwelling existing on the lot. c. Compliance with one of the following: 2

i. A five-foot buffer yard, as shown on an approved landscape plan, is installed and maintained between the fence or wall and the public right-of-way in accordance with the requirements for buffer yard "A" or "B" as described in section 19-610 of this ordinance without waiver or modification. ii. A one-foot vegetated buffer may be permitted along the unimproved shoulder of a paved public right-of-way abutting the fence, provided that the departments of public works and public utilities approve an "Adopt-a-Garden" or similar agreement for such vegetation. iii. If the public right-of-way along the secondary front yard is unimproved or is an alley when a request is made under this subsection, no buffer shall be required, if all other criteria contained in subparagraphs a. through f. are satisfied. At any time after the issuance of a building permit, a buffer consistent with i. or ii. Above, as applicable, shall be required if the public right-of-way is no longer an alley or unimproved. d. The department of public works determines that the fence or wall will not interfere with or impede traffic visibility. e. The fence is constructed so that the finished side faces the street. f. Written notice is mailed to all adjacent properties, including those located directly across all streets abutting the corner or through lot, and no objection is received from the owners or occupants of such properties. The applicant shall be responsible for providing the zoning administrator with a list of the names and addresses of all adjacent property owners and/or occupants and a stamped, addressed envelope for each such owner or occupant identified on the list. The adjacent property owners and occupants shall be given fifteen (15) consecutive days from the date of the written notice in which to make any objections known to the zoning administrator. No building permit may be issued during this 15-day period, nor may a building permit be issued if one or more objections are received from an owner or occupant of an adjacent property. The applicant shall be solely responsible for the accuracy of the list of adjacent properties and in the event the zoning administrator finds the list to be erroneous in any substantive manner, the building permit issued for the fence or wall shall be null and void. In the event an application for a fence or wall in the secondary front yard of a corner lot or through lot is denied due to the applicant's inability to meet one or more of the criteria set out in subparagraphs a. through f., or if the zoning administrator receives an objection from the owner or occupant of any adjacent property as set out in subparagraph f., the zoning administrator shall deny the requested building permit. In the event of such denial, the property owner may request a variance from fence height and/or fence setback restrictions from the Chesapeake Board of Zoning Appeals. As used in this subsection, the term "secondary front yard" for corner lots and through lots shall mean the front yard other than that on which the principal dwelling faces. Where the principal dwelling is situated cater-corner on the two (2) front yards of a corner lot, the zoning administrator shall designate the secondary front yard in consideration of such factors as the widths of the front yards, the location of driveways, the address of the residence, and the prevailing yard patterns in the neighborhood. B. Specialty fences. The use of barbed wire, razor wire, electrified wire and similar wire types shall be prohibited in any residential zoning district, with the exception of districts which allow the keeping of horses or other livestock, and shall be permitted in those districts only where the fence is used solely to contain such animals. 3

C. Multi-family district fences. Fences in the R-MF-1 and R-MF-2 zoning districts are governed by subsection 14-202.B. (Ord. No. 94-O-256, 12-20-94; Ord. No. 97-O-006, 1-21-97; Ord. No. 97-O-053, 5-20-97; Ord. No. 03-O-029, 3-18-03; Ord. No. 04-O-058, 4-20-04) 20-402. Standards for variances General standards; the Board of zoning appeals (BZA) shall authorize a variance from the terms of the zoning ordinance only when such authorization will not be contrary to the public interests and when, owing to special conditions, a literal enforcement of the provisions of the zoning ordinance would unreasonably restrict the utilization of the property, provided that the spirit of the zoning ordinance shall be observed and substantial justice done. Action and specific findings required; the BZA shall either: approve, deny or approve with conditions the request for a variance. A "Variance" means, in the application of the zoning ordinance, a reasonable deviation from those provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk, or location of a building or structure when the strict application of the ordinance would unreasonably restrict the utilization of the property, and such need for a variance would not be shared generally by other properties, and provided such variance is not contrary to the purpose of the ordinance. It shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning. Notwithstanding any other provision of law, general or special, a variance shall be granted if the evidence shows that the strict application of the terms of the ordinance would unreasonably restrict the utilization of the property or that the granting of the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon at the time of the effective date of the ordinance, and 1. The property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant for the variance; 2. The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; 3. The condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance; 4. The granting of the variance does not result in a use that is not otherwise permitted on such property or a change in the zoning classification of the property; and 5. The relief or remedy sought by the variance application is not available through a special exception process at the time of the filing of the variance application. END OF REPORT 4