1990-05
RESOLUTION NO.
OE90-05
A RESOLUTION OF THE OLD ENCINITAS
COMMUNITY ADVISORY BOARD DENYING A
VARIANCE REQUEST
FOR A REDUCTION IN THE REAR AND SIDE YARD
SETBACKS TO PERMIT THE RETENTION OF AN EXISTING
ILLEGAL NON-CONFORMING CARPORT AND DECK
LOCATED AT 139 VULCAN AVENUE
(CASE NUMBER 90-037V)
WHEREAS, a request for consideration of a Variance was filed
by Ingimar Thorgeirsson to allow an existing illegal non-conforming
carport and deck to encroach 8 1/2 ft. into the required side yard
setback, and 9 ft. into the required rear yard setback for a
property in the R-3 Zone per Section 30.16.010 and Chapter 30.78
of the City of Encinitas Municipal Code, for the property located
at 139 Vulcan Avenue legally described as:
Lot 4 of the Austin Tract according to Map thereof No. 2174 filed
in the Office of the San Diego County Recorder.
WHEREAS, a public hearing was conducted on the application on
March 29, 1990, and;
WHEREAS, the Community Advisory Board considered:
1.
2.
The staff report dated March 20, 1990;
The application, site plan and Statement of Justification
submitted by the applicant;
Oral evidence submitted at the hearing;
Written evidence submitted at the hearing; and
3.
4.
WHEREAS, the Old Encinitas Community Advisory Board was unable
to make the following findings pursuant to Chapter 30.78 of the
Encinitas Municipal Code:
(SEE ATTACHMENT "A")
NOW, THEREFORE, BE IT RESOLVED by the Old Encinitas Community
Advisory Board of the City of Encinitas that application 90-037V
is hereby denied.
PASSED AND ADOPTED this 29th day of March,
following vote, to wit:
1990,
by the
AYES: Birnbaum, Rotsheck, Tobias, Townsend
NAYS: None
ABSENT: Steyaert
TC/04/CAB19-1723WP5
(4-02-90-5)
ABSTAIN: None
ATTEST:
~~~~
Tom Curriden
Associate Planner
TC/04/CAB19-1723WP5
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j/¿f:v ~
r2 t2~
Peter Tobias, Chairman of
the Old Encinitas Community
Advisory Board
ATTACHMENT "A"
RESOLUTION NO.
OE90-05
FINDINGS FOR A VARIANCE
Findings: What follows are the findings of fact the Board must
make to approve the variance request pursuant to Zoning Ordinance
Sect. 30.78.030:
A. A variance from the terms of the zoning regulations shall
be granted only when, because of the special circumstances
applicable to the property, including size, shape, topography,
location or surroundings, the strict application of the zoning
regulations deprives such property of privileges enjoyed by
other property in the vicinity and under the same zoning
classification.
Evidence: The applicant maintains in the attached statement
of justification that his property is unique in that (1) the
site is 18 ft. above the level of Vulcan Avenue and 10 ft.
above the level of the adjacent property to the south, (2)
that the site is located in an area frequented by undocumented
workers, (3) and that the lot has an unusual shape. The Board
determined that (1) the presence of the house on a bluff-top
lot with view opportunities does not constitute a special
circumstance because other such properties are not authorized
to encroach into setbacks, and (2) that the shape of the lot
does deprive the applicant of any privilege in that the home
and any accessory structures could be located on site in a
manner observing the setbacks.
B. Any variance granted shall be subject to such conditions
as will assure that the adjustment thereby authorized will not
constitute a grant of special privileges inconsistent with the
limitations upon other properties in the same vicinity and
zone in which such property is situated.
Evidence: The Board found that to approve the variance would
be a grant of special privilege since other such lots (i.e.
atop hillsides, with view opportunities, and of a similar
configuration) are required to observe all required setbacks.
The Board was unable to identify any special hardship
applicable to the property that would make a variance not a
grant of special privilege.
C. A variance will not be granted for a parcel of property
which authorizes a use or activity which is not otherwise
expressly authorized by the zoning regulations governing the
parcel of property. The provisions of this section shall not
apply to use permits.
TC/04jCAB19-1723WP5
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Evidence: Accessory structures such as decks and carports are
permissible uses in residential zones when in conjunction with
a primary dwelling.
D. No variance shall be granted if the inability to enjoy
the privilege enjoyed by other property in the vicinity and
under identical zoning classification:
1. Could be avoided by an alternate development plan which
would be of less significant impact to the site and adjacent
properties than the project requiring a variance.
2. Is self-induced as a result of an action taken by the
property owner or the owner's predecessor;
3. Would allow such a degree of variation as to constitute
a rezoning or other amendment to the zoning code;
4. Would authorize or legalize the maintenance of any public
or private nuisance.
Evidence: The applicant's statement of Justification does not
specifically address these findings. The Board found that (1)
an alternate development plan could be considered, and (2)
that the variance application is self-induced since the
applicant caused the construction of the non-conforming
structure.
TC/04/CAB19-1723WP5
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