20CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER - OFFICE MEMORANDUM
South Miami
A9 *nP icaCfly
2001
To: The Honorable Mayor Stoddard and Members of the City Commission
Via: Hector Mirabile, Ph.D., City Manager
From: Thomas J. Vageline, Director
Planning and Zoning Departme
Date: October 19, 2010 ITEM No.
A Resolution of the Mayor & City Commission of the City of South Miami, Florida,
relating to a request for a variance from Section 20- 3.5(G) of the Land Development Code
to allow a front setback of 23.55 feet where a minimum of 25 feet is required on property
located at 5743 SW 76 Terrace, South Miami, Florida, within the "RS -31', Low Density
Residential Zoning Use district; the purpose of the variance is to correct an error made
when the home was constructed in 1987; providing for an effective date.
APPLICANT'S REQUEST:
The applicant is requesting approval of a variance from Section 20- 3.5(E), Dimensional
Requirements Single- Family Districts, of the Land Development Code (LDC) to permit an
existing one story single family home to have a front setback of 23.55 feet where a minimum
required front setback is 25 feet in the RS -3 Single Family Residential Zoning District. The
intent of the variance request is to correct an encroachment error made at the time of the 1987
construction so that the owners may sell the property.
APPLICABLE REGULATIONS (See ATTACHMENT)
• Land Development Code Section 20- 3.5(E), Dimensional Requirements Single- Family
Districts
• Land Development Code Section 20 -5.9 (G) Permitted Variance requests
• Land Development Code Section 20- 5.9(H) Variance Approvals
• Land Development Code Section 20- 6.1(B)(3)(h), Planning Board, Powers and Duties
BACKGROUND & ANALYSIS:
The subject property is located on a cul -de -sac and is an irregularly shaped property. It has a net
area of 10,463 sq. ft. The applicant has set forth in a letter of Intent/Hardship, dated September 7,
5743 SW 76 Terr.
Variance - Setback
2
2010 that the front setback was not measured correctly by the surveyor or the contractor made an
error during construction. The owner discovered the error during the due diligence process prior
to the sale of the property. The buyer's mortgage company has refused to close on the purchase
as long as the setback violation remains.
STAFF ANALYSIS:
In reviewing a variance request the Land Development Code requires that the criteria set forth in
Section 20- 5.9(H) should be applied.
Section 20 -5.9 Variance approvals
(H) All variance decisions shall be based on an affirmative finding as to each of the following
criterion:
1. The variance is necessary to relieve particular extraordinary conditions relating to o a speck property;
The variance relates only to this one property and is a condition which could result in the
property owner being unable to use or sell the property.
2. Denial of the variance would result in hardship to the owner, Hardship results if the restriction of the
zoning ordinance when applied to a particular property, becomes arbitrary, confiscatory or unduly
oppressive because of conditions of the property that distinguish it from other properties under similar
zoning restrictions
The error in measurement by a surveyor or contractor can result when a property is an irregular
shape or located on a curvilinear cul -de -sac, which distinguishes this property from other properties
3. The extraordinary conditions and circumstances do not result from the actions of the applicant;
The applicant was not responsible for the setback error which was the fault of the original
survey.
4. The requested variance is the minimum variance necessary to make possible the reasonable use of the
land building or structure:
The requested variance is very small (1.45 feet); it is the absolute minimum to meet the
required front setback.
5. That the approval of the variance will be in consistent with the general intent and purpose of the Land
Development Code and will not be incurious to the neighborhood or otherwise detrimental to the public
wel are.
The requested variance will have no impact upon surrounding properties or the
neighborhood.
PLANNING BOARD ACTION
The Planning Board after public hearing on September 23, 2010, adopted a motion by a vote of
5 ayes and 0 nays recommending approval of the variance request.
5743 SW 76 Terr.
Variance — Setback
RECOMMENDATION:
The applicant's claim of hardship due to the irregular shape of the lot is supportable under the
variance decision criteria set forth in Section 20 -5.9. It is recommended that the variance request
be approved.
Attachments:
Draft resolution
Application
Letter of Intent and Justification Letter
Location Map
Current property survey
Property Survey (1987)
Land Development Code (LDC) Applicable Regulations
Planning Dept. Staff Report 9 -23 -10
Planning Board Minutes Excerpt 9 -23 -10
Copy of Public Notices
TJV /SAY
X: \Comm Items\2010 \10 -19 -10 \Variance 5743 SW 76 Terr -Front setback, CM Report.doc
1
2 RESOLUTION NO.
4 A Resolution of the Mayor & City Commission of the City of South Miami, Florida,
5 relating to a request for a variance from Section 20- 3.5(G) of the Land Development
6 Code to allow a front setback of 23.5 feet where a minimum of 25 feet is required on
7 property located at 5743 SW 76 Terrace, South Miami, Florida, within the "RS -3 ",
8 Low Density Residential zoning use district; the purpose of the variance is to correct
9 an error made when the home was constructed in 1987; providing for an effective
10 date.
11
12 WHEREAS, Application No. PB -10 -028 was submitted to the Planning Board by
13 applicant, Illiana Villa - Roehr, said application requesting approval of a variance from
14 Section 20- 3.5(G) to allow a front setback of 23.5 feet where a minimum of 25 feet is
15 required on property located at 5743 SW 76 Terrace, South Miami, Florida, within the
16 "RS -3 ", Low Density Residential Zoning Use District; the purpose of the variance is to
17 correct an error made when the home was constructed in 1987 ; and
18
19 WHEREAS, the subject property is located on a cul -de -sac and is an irregularly
20 shaped property; and
21
22 WHEREAS, the applicant has set forth in a letter of Intent/Hardship, dated
23 September 7, 2010 that the front setback was not measured correctly by the surveyor or the
24 contractor made an error during the 1987 construction of the home; and
25
26 WHEREAS, the applicant is in the process of selling the property and the purchase
27 can not be completed as long as the setback violation remains; and
28
29 WHEREAS, the approval of a variance requires a recommendation from the
30 Planning Board and the approval of the City Commission after a public hearing; and
31
32 WHEREAS, at its September 23, 2010 meeting the Planning Board, after public
33 hearing, voted 5 ayes 0 nays to recommend approval of the variance requested; and
34
35 WHEREAS, the Mayor and City Commission of the City of South Miami desire to
36 accept the recommendation of the Planning Board.
37
38 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
39 THE CITY OF SOUTH MIAMI, FLORIDA THAT:
40
41 Section 1. That the subject application submitted by applicant Illiana Villa - Roehr, said
42 application requesting approval of a variance from Section 20- 3.5(G) to allow a front setback
43 of 23.5 feet where a minimum of 25 feet is required on property located at 5743 SW 76
44 Terrace, South Miami, Florida, within the "RS -3 ", Low Density Residential Zoning Use
45 District is hereby approved.
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Section 2. That the approval of the subject variance is based upon an affirmative finding
that the requested variance meets the following criterion set forth in LDC Section 20-
5.9(H):
(1) The variance is necessary to relieve particular extraordinary conditions
relating to a specific property;
(2) Denial of the variance would result in hardship to the owner. Hardship
results if the restriction of the zoning ordinance, when applied to a
particular property, becomes arbitrary, confiscatory or unduly oppressive
because of conditions of the property that distinguish it from other
properties under similar zoning restrictions;
(3) The extraordinary conditions and circumstances do not result from the
actions of the applicant;
(4) The requested variance is the minimum variance necessary to make
possible the reasonable use of land, building or structure;
(5) That the approval of the variance will be in consistent with the general
intent and purpose of the Land Development Code, and will not be
injurious to the neighborhood or otherwise detrimental to the public
welfare.
Section 3. This resolution shall be effective immediately after the adoption hereof.
PASSED AND ADOPTED this , day of 2010
ATTEST: APPROVED:
CITY CLERK
READ AND APPROVED AS TO FORM
AND SUFFICIENCY:
CITY ATTORNEY
X:\Commltems\2010\10-19-10\Variance 5743 SW 76 Tea Resol.doc
u_ •
Commission Vote:
Mayor Stoddard:
Vice Mayor Newman:
Commissioner Palmer:
Commissioner Beasley:
Commissioner Harris:
City of South Miami
Planning & Zoning Department
City Hall, 6130 Sunset Drive, South Miami, Florida 33143
Telephone: (305) 663-6326; Fax: (305) 668 -7356
Application For Public Bearing Before Planning Board & City Commission
ress of Subject Property: 6--7V 3 S'L✓ 76
!is & Bounds:
licant: Z4/4NH� VLLVw,t-R,*mayr?
resentative:
ress:
:)ertyOwner: Vldsq -rho°
' D J, u : "W11 -e Jo S&eA,1 R z 45*p-,-�
ling Address: 137 36 Ste/ dhiq C;4Ce
ME
Phone:
5496 /3!2
44„r,Phone: !75G- -5',C6
7 2149 - -514
Phone:
Owner's Representative Contract to
PLEASE CHECK THE APPROPRIATE ITEM:
Wariance
Text Amendment to LDC
_
Map Amendment
_Special Use
_Zoning
PUD Approval
_Special Exception
_
PUD Major Change
_,Other (Waiver of Plat)
Briefly explain application and cite specific Code sections:
VwRioea/Cc 9�c49PVGW °. /yivir7uH r:iie�.
.CO/L- 710
Section:_ Subsection:_ Page #:_ Amended Date:
to purchase —Tenant/Lessee
>LE E CHECK ALL THAT APPLY:
_ Letter of intent
Justifications for change
�tatement of hardship
roof of ownership or letter from owner
_ Power of attorney
Contract to purchase
;;,current survey (1 original sealed and
signed /1 reduced copy @ 11" x 17 ")
V"15 copies of, Site Plan, and Floor Plans
I� ereduced copy @-19 "' x 17"
✓Affidavit- Receipts attesting to mail
notices sent
✓Mailing labels (3 sets) and map
✓Required Fee(s)
The undersigned has read this completed application and represents that the information and all submitted materials are true and
corrept to ?he bet pplicant's lmowledge and bexh1-i�4i ✓`$�. i ��y ve ly' ed _ 7— 2o-'C>
�C+f.E2 � I.,dJd7�JbK �Sr�li^J�oc�/�'i ®c,d�vE+i
Date
Applicant's Signature and title
Print Name
Upon receipt, applications and all submitted materials will be reviewed for compliance with the Land Development Code and other
applicable regulations. Applications found not in compliance will be rejected and returned to the applicant.
OFFICE Use UrvLr:
Date Filed Date of PB Hearing Date of Commission
Petition Required Petition Accepted
September 7'h, 2010
City of South Miami
Planning and Zoning Department
6130 Sunset Drive
South Miami, FL 33143
Re: Property at 5743 SW 76 Te, Miami, FL 33143, Folio # 09- 4036 - 077 -0030
LEGAL DESCRIPTION: Lot 3, in Block 1 of SARA PARK, according to the
Plat thereof, as recorded in Plat Book 131, at Page 20 of the Public Records
of Dade County, Florida
The above property was acquired by owners in 1987 through a direct purchase
from the developer of SARA PARK.
Prior to closing on the property a survey was performed on June 24, 1987 by
JAMES BEADMAN & ASSOC, INC, a consulting surveyor hired we assume by
the title company doing the closing. During this survey no encroachments,
easement violations or violations of any other nature were detected by surveyor
(See copy of survey attached).
This property has never been surveyed again since then.
We have decided to sell the property and at the present time we have an
executed purchase and sale contract.
A recent survey ordered by the buyer (Aug 13, 2010) has found an
encroachment from the south -east corner of the garage into the 25' building set
back line of 1.45'; i.e. the set back at that point is 23.55' instead of the 25'
minimum. Evidently, this violation of the 25' front building setback has existed
since the property was built by the developer and has gone undetected for the
last 23 years.
Both the buyer and the buyer's mortgage lender have indicated that they will not
close on the purchase transaction so long as there is a violation of the front set
back requirement.
This situation has created an undue burden on the property and us as owners in
that:
a) The original survey from 1987 did not accurately portray the set back
violation by developer.
b) The City's building department at the time, approved the construction and
granted the CO to the developer.
c) We proceeded with the purchase trusting all permits had been cleared
with the City and unaware there was a serious violation from the
beginning.
This situation has created a undue hardship, 1) making the property the target for
any third party law suit to enforce the minimum set back and 2) making the
property virtually unsalable as no mortgage lender will accept the property as
collateral for a mortgage loan so long as the front set back violation exists, thus
depriving owners of a right enjoyed by all other owners of adjacent lots.
The property is located at the back of a dead end cul de sac, and the granting of
the front set back variance will not in any manner effect traffic in the area. We
are innocent victims of this situation. We did not create same nor did we have
any knowledge of same, nor had any reasonable basis for having knowledge of
same until now.
We are hereby respectfully requesting that the City of South Miami's Planning
Board and City Commission grant this property a specific variance to the
minimum platted front set back of 25', based on the fact that this variance is
necessary to relieve a particular extraordinary condition which is not a result from
actions by the owners. This request is the minimum variance necessary to make
possible the future reasonable use of the property and will not be detrimental to
the neighborhood or to the public interest.
We greatly appreciate your approval to this request for variance that would
relieve us from the current great hardship.
Yours respectfully,
j�z�
(LIANA VILLA -ROEHR
Owner
c
LUDWIK JOSEPH ROEHR
Owner
City of South Miami
PB -10 -028 Variance Front Setback
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MOJARENA & ASSOCIATES, INC.
Land Surveyors & Mappers
Certificate of Authorization No. 6698
12925 S.W. 132nd Avenue
Miami, Florida 33186 (305) 278-2494
LOOD ZONE: X BASE: N/A
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5743 SW 76 Terr.
Variance — Setback
ATTACHMENTS
LAND DEVELOPMENT CODE APPLICABLE REGULATIONS
• Land Development Code Section 20- 3.5(E) DIMENSIONAL REQUIREMENTS Single -
Family Districts
REQUIREMENT RS -3
Setback Front (ft) 25'
• Land Development Code Section 20 -5.9 (G) Variance Approvals
(G) Permitted Variance Requests. Applications for variances shall be restricted to only the
following:
(1) Yard setbacks
(2) Lot size
(3) Lot coverage
(4) Building height
(5) Fences and walls
(6) Impervious coverage
(7) Off - street parking
(8) Open space
(9) Signs
(10) Landscaping
5743 SW 76 Terr.
Variance — Setback
• Land Development Code Section 20- 6.1(B)(3)(h), Planning Board, Powers and Duties
(h) The board shall review and make recommendations on all applications for variances
from the requirements of this Code for yard setbacks, lot size, lot coverage, building
height, fences and walls, impervious coverage, off - street parking, open space, signs and
landscaping. Recommendations for a variance shall be made based upon the criteria set
forth in Section 20- 5.9(H).
• Land Development Code Section 20- 5.9(H) All variance decision shall be based on an
affirmative finding as to each of the following criterion:
(1) The variance is necessary to relieve particular extraordinary conditions relating
to a specific property;
(2) Denial of the variance would result in hardship to the owner. Hardship results if
the restriction of the zoning ordinance, when applied to a particular property,
becomes arbitrary, confiscatory or unduly oppressive because of conditions of
the property that distinguish it from other properties under similar zoning
restrictions;
(3) The extraordinary conditions and circumstances do not result from the actions of
the applicant;
(4) The requested variance is the minimum variance necessary to make possible the
reasonable use of land, building or structure;
(5) That the approval of the variance will be in consistent with the general intent and
purpose of the Land Development Code, and will not be injurious to the
neighborhood or otherwise detrimental to the public welfare.
To: Honorable Chair & Date: September 23, 2010
Planning Board Members
From: Thomas J. Vageline, Director Re: Variance Request
Planning and Zoning Departmen 5743 SW 76 Terrace
PB -10 -028
Applicant: Iliana Villa -Roehr
Location: 5743 SW 76 Terrace
A Resolution of the Mayor & City Commission of the City of South Miami, Florida,
relating to a request for a variance from Section 20- 3.5(G) of the Land Development Code
to allow a front setback of 23.55 feet where a minimum of 25 feet is required on property
located at 5743 SW 76 Terrace, South Miami, Florida, within the "RS -3 ", Low Density
Residential Zoning Use district; the purpose of the variance is to correct an error made
when the home was constructed in 1987; providing for an effective date.
APPLICANT'S REQUEST:
The applicant is requesting approval of a variance from Section 20- 3.5(E), Dimensional
Requirements Single - Family Districts, of the Land Development Code (LDC) to permit an
existing one story single family home to have a front setback of 23.55 feet where a minimum
required front setback is 25 feet in the RS -3 Single Family Residential Zoning District. The
intent of the variance request is to correct an encroachment error made at the time of the 1987
construction so that the owners may sell the property.
APPLICABLE REGULATIONS (See ATTACHMENT)
• Land Development Code Section 20- 3.5(E), Dimensional Requirements Single - Family
Districts
• Land Development Code Section 20 -5.9 (G) Permitted Variance requests
• Land Development Code Section 20- 5.9(H) Variance Approvals
• Land Development Code Section 20- 6.1(B)(3)(h), Planning Board, Powers and Duties
BACKGROUND & ANALYSIS:
The subject property is located on a cul -de -sac and is an irregularly shaped property. It has a net
area of 10,463 sq. ft. The applicant has set forth in a letter of Intent/Hardship, dated September 7,
2010 that the front setback was not measured correctly by the surveyor or the contractor made an
error during construction. The owner discovered the error during the due diligence process prior
5743 SW 76 Terr.
Variance - Setback
Sep 23, 2010
to the sale of the property. The buyer's mortgage company has refused to close on the purchase
as long as the setback violation remains.
STAFF ANALYSIS:
In reviewing a variance request the Land Development Code requires that the criteria set forth in
Section 20- 5.9(H) should be applied.
Section 20 -5.9 Variance approvals
(H) All variance decisions shall be based on an affirmative finding as to each of the following
criterion:
1 The variance is necessary to relieve articular extraordinary conditions relating to a specific property;
The variance relates only to this one property and is a condition which could result in the
property owner being unable to use or sell the property.
2. Denial of variance would result in hardship to the owner. Hardship results if the restriction of the
zoning ordinance when applied to a particular property becomes arbitrarconfiscatory or unduly
oppressive because of conditions of the property that distin ivu sh it from other properties under similar
zoning restrictions;
The error in measurement by a surveyor or contractor can result when a property is an irregular
shape or located on a curvilinear cul -de -sac, which distinguishes this property from other properties
3 The extraordinary conditions and circumstances do not result from the actions of the applicant;
The applicant was not responsible for the setback error which was the fault of the original
survey.
4. The requested variance is the minimum variance necessM to make possible the reasonable use of the
land building or structure
The requested variance is very small (1.45 feet); it is the absolute minimum to meet the
required front setback.
5 That the approval of the variance will be in consistent with the general intent and purpose of the Land
Development Code and will not be iniurious to the neighborhood or otherwise detrimental to the public
wel are.
The requested variance will have no impact upon surrounding properties or the
neighborhood.
RECOMMENDATION:
The applicant's claim of hardship due to the irregular shape of the lot is supportable under the
variance decision criteria set forth in Section 20 -5.9. It is recommended that the variance request
be approved.
5743 SW 76 Terr.
Variance — Setback
Sep 23, 2010
Attachments:
Application
Letter oflntent and Justification Letter
Location Map
Current property survey
Property Survey (1987)
Land Development Code (LDC) Applicable Regulations
Copy of Public Notices
TN /SAY
X;\PB\PB Agendas Staff Reports\2010 Agendas Staff Reports\9 -23 -I OTB -10 -028 5743 SW 76 Tea -Front setback.doc
CITY OF SOUTH MIAMI
PLANNING BOARD
Regular Meeting
Meeting Minutes
Tuesday, September 23, 2010
City Commission Chambers
7:30 P.M.
EXCERPT
I. Call to Order and the Pledge of Allegiance to the Flag
Action: The meeting was called to order at 7:37 P.M.
The Pledge of Allegiance was recited in unison.
H. Roll Call
Action: Chair Yates requested a roll call.
Board members present constituting a quorum: Mrs. Yates, Mrs. Young, Mr. Whitman, Mr.
Cruz and Mrs. Beckman. Board members absent: Mr. Farfan and Mr. Morton.
City staff present: Thomas J. Vageline (Planning & Zoning Director), Sanford A. Youkilis
(Planning & Zoning Consultant), Marcus Lightfoot (Permit Facilitator) and Lourdes Cabrera -
Hernandez (Principal Planner).
City Attorney: Mr. Mark Goldstein
III. Planning Board Applications/Public Hearings
PB -10 -028
Applicant: Iliana Villa -Roehr
Location: 5743 SW 76 Terrace
A Resolution of the Mayor & City Commission of the City of South Miami, Florida,
relating to a request for a variance from Section 20- 3.5(G) of the Land Development Code
to allow a front setback of 23.55 feet where a minimum of 25 feet is required on property
located at 5743 SW 76 Terrace, South Miami, Florida, within the "RS -3 ", Low Density
Residential Zoning Use district; the purpose of the variance is to correct an error made
when the home was constructed in 1987; providing for an effective date.
Action: Ms. Beckman read the item into the record.
Planning Board Meeting
September 23, 2010 Excerpt
Page 2 of 2
Mr. Goldstein informed the Chairman that the application is a quasi-judicial hearing.
Mrs. Yates swore in all the citizens who would like to speak on the item.
Mr. Youkilis informed the Board that the home on SW 76 Terrace was built in 1987. During
that time something happened and staff did not catch that the front set back is 25 feet. As of the
moment, from the edge of the garage to the edge of the property is 23.5. The owner is currently
trying to sell the property and the bank will not closer the deal since there is one and a half foot
difference. The applicant's claim of hardship due to the irregular shape of the lot is supportable
under the variance decision criteria set forth in Section 20 -5.9. Staff recommends that the
variance request be approved.
The Chair opened the public hearing.
Speakers:
NAME ADDRESS SUPPORT /OPPOSE PROJECT
Iliana Villa -Roehr 5743 SW 76 Terrace Supports
Mrs. Villa -Roehr thanked the Board for taking the time to hear the item. She commented that she
has been the owner since 1997 and the house was purchased directly from the developer.
Recently, the house had to be placed up for sale and through a survey ordered by the title
company and unpleasant situation has occurred. The problem is creating a hardship seeming that
no mortgage lender will accept the property as collateral.
NAME ADDRESS SUPPORT /OPPOSE PROJECT
Sharon McCain Supports
Ms. McCain commented that she supports the variance. She further commented that during this
time there were several other properties that have similar situations.
The Chair closed the public hearing.
Motion: Mr. Cruz moved to approve the application as presented. Mrs. Young seconded.
Vote: 5 Ayes 0 Nays
Mrs. Yates questioned when the item will be presented to the City Commission. Mr. Youkilis
responded October 19, 2010.
Ms. Beckman suggested that the applicant provide staff with the signatures of the neighbors so
that it is provided to the City Commission.
W:\PB\PB Minutes\2010 Minutes\ 9 -23- 2010\ PB. Minutes.9.23.2010.PB.10.028.doc
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