HomeMy Public PortalAboutVAR-20-01 2021.02.22 - SandersIN RE:
SANDERS SETBACK VARIANCE
Variance
File Number: VAR-20-01
Instrument # 437938
VALLEY COUNTY, CASCADE, IDAHO
03-01-2021 13:17:16 No. of Pages: 13
Recorded for: CITY OF MCCALL
DOUGLAS A. MILLER Fee: $0.00
Ex-Officio Recorder Deputy: AMF
Electronically Recorded by Simplifile
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 1 of 13
McCALL CITY COUCNIL
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
DECISION
FINDINGS OF FACTS
Applicant: Dwain and Cindy Sanders
Representatives: Epikos Planning and Design
Application: A Variance and Shoreline Review application to waive the 50 foot setback
requirement from the ordinary high-water mark and special flood hazard area of
the North Fork of the Payette River to permit the construction of a new
residence and accessory structure, which will encroach into the Area of Special
Flood Hazard by more than 150 ft. The residence will be a single -story structure
of 4,080 sq. ft. with an additional 3,631 sq. ft. of patios. The accessory structure
is comprised of a 2,941 sq. ft. detached shop with an attached accessory
dwelling unit, which will be deed restricted for local housing, totaling 747 sq. ft.
with 564 sq. ft. of patios, for a total building and patio footprint on the site of
11,494 sq. ft. The development is located primarily within the special flood
hazard area and of the Payette River and located entirely within the Shoreline
and River Environs Zone.
Address: 221 Morgan Dr., McCall, ID 83638
Location: Lot 19, Block Two of the River's Crossing Subdivision situate in the S Y2 of Section
17, T18N, R3E, B.M. City of McCall, Valley County, Idaho.
Preliminary Development Plan Review: July 7, 2020
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 2 of 13
Procedural History: During their regularly scheduled September 1, 2020 meeting, the McCall Area
Planning and Zoning Commission held a properly noticed public hearing on this
application. After discussion, the application and public hearing were continued
until the next regularly scheduled meeting on October 6, 2020 to allow more
time to gather information. The Commission also approved a motion to hold a
public hearing during a site visit to the property on Friday October 2, 2020.
During the October 6th meeting, the Commission discussed the site visit and
deliberated on the application. A motion was made to direct staff to prepare
draft findings recommending the variance application to the McCall City Council
for approval; a roll call vote was held, and the motion carried with 5 ayes and 2
nays. During their regularly scheduled November 3, 2020 meeting, the McCall
Area Planning and Zoning Commission voted 5 — 2, to approve the findings
recommending City Council approve the variance application.
During their December 3, 2020 meeting, the McCall City Council held a public
hearing on VAR-20-01. The hearing was closed, and the application was
continued to the January 14th meeting to allow more time for deliberations.
Following the meeting, the applicant's representative asked that the Council
consider reopening the public hearing to address select new information that
was introduced after the hearing was closed. The Council approved the request
to reopen the hearing.
The application was noticed for the City Council's February 11, 2021 meeting
date. The public hearing and new information on the project was limited to
three topic areas: 1. The assertion that, through appropriate due diligence, the
Sanders' should have been aware of the limited buildable area and that a
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 3 of 13
variance would be required to proceed outside of that area, 2. The assertion
that granting the Variance would set a precedent for other applications. 3. The
assertion that denial of the Variance Application is necessary to protect the
River. Following the public hearing on February 11, 2021, the McCaII City Council
approved a motion to direct staff to prepare draft findings of facts and
conclusions of law documents denying the variance, for review and approval
during their February 25, 2021 meeting.
Public Notices: Newspaper: The Notice of Hearing was published in the Star News on August
13th, September 10th, and November 12th, 2020, as well as January 21, 2021.
Mailing: The applicant mailed the Notice of Hearing to property owners within
300 feet on August 17, September 14, and November 16, 2020, as well as
January 22, 2021.
Posting: The applicant posted the Notice of Hearing on the subject property on
August 18, September 16, and November 16, 2020, as well as January 22, 2021.
Zoning: R8 — Medium Density Residential
Property Size: 230,607 sq. ft. (5.29 acres)
Lot Coverage: 11,620 sq. ft. (50% of allowable)
Setbacks: Per MCC 3.3.03, the minimum setback requirements for this parcel are 20 ft.
from Morgan DR., 50 ft. from the area of special flood hazard, and 15 ft. from
either side property line. The applicant is proposing setbacks of more than 65 ft.
from the front property line, more than 15 ft. from either side property line, and
more than 400 ft. from the easterly side property line fronting the river.
However, in this case the easterly side property line is not in the same location
as the high water mark of the River, defined as the limits of the area of special
Parking:
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 4 of 13
flood hazard (SFHA) per MCC 3.7.023B2. A significant portion of the property is
located within the SFHA and the applicant is requesting a variance to not only
eliminate the 50 ft. setback from the SFHA, but to construct within the SFHA as
can be seen in the attached maps.
Per MCC 3.8.062 two parking spaces are required. The applicant is proposing
well in excess of 2 spaces.
APPROVAL STANDARDS
Title 3, Chapter 13
Variances Authorized
(A) Duties Of Commission: The Commission will set the date for and hold a public hearing and
subsequently make recommendations to the Council for approval or denial of the request in
accordance with the provisions set forth in chapter 15, "Procedures, Appeals And Actions", of this
title. The power to grant variances does not extend to use regulations.
During their regularly scheduled September 1, 2020 meeting, the McCall Area Planning and Zoning
Commission held a properly noticed public hearing on the application. After discussion, the
application and public hearing were continued until the next regularly scheduled meeting on
October 6, 2020 to allow more time to gather information. The Commission also approved a motion
to hold a public hearing during a site visit to the property on Friday October 2, 2020.
During the October 6th meeting, the Commission discussed the site visit and deliberated on the
application. A motion was made to direct staff to prepare draft findings recommending the variance
application to the McCaII City Council for approval; a roll call vote was held, and the motion carried
with 5 ayes and 2 nays. The findings were provided to the Commission for review and approval
during their regularly scheduled November 3, 2020 meeting.
Sanders Setback Variance — Findings of Fact
McCaII City Council — February 25, 2021
Page 5 of 13
(B) Limitation On Granting: Variances shall not be granted on the grounds of convenience or profit,
and hardships created by a former or present owner of the property will not justify a variance.
This Commission determined that the variance was not due to convenience or profit. However, the
City Council determined that because the lot still has a buildable footprint area in excess of 6,000 sq.
ft., that the hardship expressed by the applicant was due to the design and location of the project
on the site, which was of the property owner's own making and was not due to the lot itself.
(C) Modification Of Requirements: A variance may be granted modifying the requirements of this title
respecting: lot width; lot depth; front, side, and rear yard setbacks; lot coverage; parking space;
height of buildings; or other ordinance provisions affecting the size or shape of a structure or the
placement of the structure upon Tots, or the size or shape of lots. A variance may not be used to
authorize a land use not otherwise allowed in the applicable zone or to increase the density of
development beyond that which is authorized in the comprehensive plan. The applicant is
proposing only a single-family residence with a single accessory dwelling unit. Therefore, the
applicant is not requesting a use or density beyond what is permitted by the McCall City Code.
The variance request is in regard to a property development standard (setbacks) that are described
in McCall City Code 3.7.023B, that structures in the river environs zone be setback 50 ft. from the
area of special flood hazard. The applicant is proposing to remove the 50 ft. setback from the Area
of Special Flood Hazard to build within the Area of Special Flood Hazard. The applicant is proposing
to meet all requirements of MCC 9.8 Flood Control Regulation (Overlay), which describes the specific
building standards required to build within the Area of Special Flood Hazard.
(D) Granting Variances Authorized: The commission may grant variances to the regulations prescribed
by this Title 3, and Title 9 of this McCall City Code, in accordance with the procedures prescribed in
those chapters, with respect to any property development standard, performance standard, sign,
accessory structure, wall or fence.
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 6 of 13
The variance request is in regard to a property development standard (setbacks) that are described
in McCaII City Code 3.7.023B, that structures in the river environs zone be setback 50 ft. from the
area of special flood hazard.
(E) Varying Only To Extent Necessary: In the event that a variance is granted, the restricting zoning
regulation(s) shall be varied only to the extent necessary to relieve the applicant of the immediate
hardship; the existence of hardship does not confer upon the applicant a right to a variance where
the function of the proposed construction can be made to conform to the requirements of this
title. The Council determined that while the proposed construction could not be made to conform
to the requirements of this title because the residence and accessory structure would need to be
greatly reduced in size, they did determine that the lot had more than adequate space for a single
family residence and garage if it were to be redesigned. They determined that the removal of the 50
ft. setback, along with permitting an encroachment of more than an additional 150 ft. into the Area
of Special Flood Hazard for the two structure footprints totaling 11,000 sq. ft., was more the
minimum extend necessary to relieve the applicant of the professed hardship because the lot is
buildable.
(F) Imposing Conditions: In granting any variance, the Commission may prescribe appropriate
conditions of approval in conformity with this title to reduce the impact of the variance. One such
condition of approval shall be a stated date before which it must be exercised, or lapse.
The Council decided to deny the variance application; therefore, no conditions of approval are
necessary.
Variance Standards
A variance shall not be granted unless the Commission makes specific findings of fact based directly
on the particular evidence presented to it which supports conclusions that the standards and
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 7 of 13
conditions have been met by the applicant. The Commission may grant a variance only upon the
following findings:
(A) Special physical conditions and circumstances applicable to the land, structure or building
involved make a literal enforcement of the provisions of this title an undue hardship; provided,
that:
1. Economic hardship alone is not to be considered as an undue hardship
Economic factors were not a consideration in the request for the variance, nor in the Council
discussion and subsequent decision to deny the variance.
2. The special conditions and circumstances are peculiar to the land, structure or building
involved, and are not applicable to other lands, structures or buildings conforming to Title 3,
McCall City Code in the vicinity
The subject parcel is comprised heavily of wetlands, and the river's Floodway and Area of
Special Flood Hazard encroach more than 500 ft. into the property, and the applicant is subject
to a 50 ft. setback on top of that. Between the front, side, and shoreline setback, the applicant
has stated that 97% of the lot was unbuildable without the variance.
The Council discussed how the proposed code requirement, MCC 3.7.023, created a hardship by
reducing the buildable area of the lot, but that it was not unique to this parcel. Many parcels are
subject to this code requirement, although most parcel boundaries along the river are set at the
edge of the Area of Special Hazard and are only subject to the 50 ft. setback. However, there are
approximately a half dozen other parcels along the river in the City and Impact Area jurisdiction,
that have reduced buildable areas due to the area of special flood hazard so the special
conditions are not peculiar to only the subject parcel.
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 8 of 13
3. That these special conditions and circumstances do not result from the actions of an owner of
the land; provided, that for purposes of a variance as to the characteristics of a building, a
subdivider who is not the applicant is not to be considered an owner for these purposes.
The City Council determined that because the lot still has a buildable footprint area in excess of
6,000 sq. ft., that the hardship expressed by the applicant was due to the design and location of
the project on the site, which was of the property owner's own making and was not due to the
lot itself, and that the lot was still buildable for a single family residence and garage.
(B) Granting the variance would preserve for such property privileges enjoyed by other property in
the vicinity; provided, that:
1. No nonconforming use of neighboring lands, structures or buildings in the same zone, and no
use of lands, structures or buildings in other zones, shall be considered a privilege enjoyed by
other property in the vicinity
The justification for the variance was not based on any nearby nonconforming uses of land.
2. Granting the variance requested will not confer on the applicant any special privilege that is
denied by this title to other lands, structures or buildings in the same zone, and affected by
the same conditions and circumstances.
The Council determined that while the variance may not have conferred on the applicant special
privilege that was denied to other property in the same zone because the majority of other
lands affected by the same conditions and circumstances had been previously developed prior
to the adoption of new more accurate flood maps, if the other undeveloped properties along
the river with substantial floodplain were to apply for a similar variance in the future and were
to be denied, then this variance application would have conferred special privileges to the
subject property.
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 9 of 13
(C) Granting the variance would not be in conflict with the public interest and will not alter the
essential character of the neighborhood or violate the comprehensive plan.
The River's Crossing HOA has submitted a letter of approval for the project and has determined that
the granting of the variance will not alter the essential character of the neighborhood, which has
many riverfront homes. However, the design, which includes filling of wetlands, is not in compliance
with the HOA's own design guideline criteria of being setback 15 ft. from all wetlands.
Additionally, the development is not in accordance with several goals of the McCall Comprehensive
Plan, including the goals to conserve significant natural areas or encouraging development that will
enhance the ability of people and natural systems to withstand and recover from natural disaster
and other major disturbances. Specific policies that are outlined in the Comprehensive Plan that
conflict with the proposed variance are:
1. Regulate activities in natural resources areas that are deemed to be detrimental to the provision
of food, water, and cover for fish and wildlife.
2. Require site evaluation for habitat, wildlife corridors, and other natural features prior to
development design.
3. Encourage flexibility in the siting and design of buildings and other improvements to reduce the
impact of development on environmentally sensitive areas.
DEPARTMENT/AGENCY COMMENTS
Payette Lakes Recreational Water and Sewer District (PLRWSD)
The application was distributed to the PLRWSD more than thirty (30) prior to the September 1, 2020
McCall Area Planning and Zoning Commission meeting date. In a letter dated August 3, 2020, PLRWSD
stated the following:
1. There is a sewer service connection for the lot in the area of construction, the sewer service
connection shall be protected from damage during construction of the proposed structures to
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 10 of 13
prevent excessive water, or debris, from entering the sewer system. Failure to do so will result
in the owner/contractor being responsible for any cost incurred by the district for cleaning or
removing debris that enters the sewer system.
2. Purchase of two (2) sewer connection permits will be required before a building permit is
issued and construction begins.
3. Inflows of surface water and excessive infiltration are prohibited. Such prohibited sources of
inflow shall include, but not be limited to, the following: Heating, cooling, or water system
discharges in excess of one thousand gallons per day. Storm water connection, sub -water
drains, floor drains located within garages, foundation drains, roof drains, swimming pools,
street drains, basement drains, sump pumps and abandoned sewer lines.
4. The owner/contractor shall notify the district two (2) business days before connection to the
sewer stub.
McCall City Engineer
In an email dated August 25, 2020, the City Engineer made the following comments:
The City has completed a preliminary engineering review of the land use applications. Given that the
proposed development is contingent upon the Planning and Zoning Commission's determination of if a
Variance can be approved for this project, this review is cursory and is not intended to be
comprehensive of all engineering issues that need to be finally addressed. Accordingly, we have
prepared the following comments, respectfully:
Grading, Drainage and Stormwater Management:
1. The submitted stormwater application identifies that the project proposes to construct
approximately 17,823 square feet of impervious area. A stormwater report, prepared in
accordance with the City's drainage management guidelines to include sections A, B, C, D, E, and
F is required.
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 11 of 13
2. The proposed stormwater plan (Sheet C2.1) identifies two principal drainage areas. Treatment
of the water quality event appears to be accomplished by a series of retention basins and
vegetative buffers where stormwater is not directed into basins as the permanent best
management practices (BMPs). This approach to managing stormwater is consistent with the
City's DMGS, however, the stormwater drainage report (see #1 above) shall provide additional
details regarding the sizing of the basins, management of roof runoff, sizing of conveyance
facilities (if any) and other temporary and permanent BMPs that may be necessary to insure the
project does not impact adjacent properties and/or aquatic habitat (i.e. wetlands, river, etc.).
Floodplain Development Permit:
1. The applicant has submitted a floodplain development permit application. On 7/16/20, the
City's floodplain administrator(Morgan Bessaw) and Interim City Engineer (Nathan Stewart)
spoke with Jim Fronk to discuss, in detail the requirements for the City's floodplain permitting
process. Staff explained that various submittals (e.g. elevation certificates) will be required at
different stages of the project (design, construction, post -construction as-builts). The City will
work with the applicant, pending variance approval, to specify floodplain permit requirements
necessary for final engineering approval in subsequent correspondence.
2. Our initial review of the site utility plans, foundation details, and floodplain development permit
application indicate that this project may comply with the City's Flood Control Regulations
(§.9.8).
Additional Items:
1. The application submittal did not include a site utilities plan. This plan is required to identify all
utilities (water, sewer, power, communication, etc.) proposed for the project and how they are
routed through the property from their origin within the Morgan Drive ROW. Particularly, the
location of the water meter and the size of the desired water meter shall be identified.
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 12 of 13
2. The proposed bridge structure shall be designed by a licensed structural engineer and an
appropriate design submittal shall be provided to the City's building official for review and
approval as part of the building permit for the residential structure.
3. The application presents and describes that wetland impacts will occur as part of this proposed
development. Accordingly, approval from the US Army Corps of Engineers and the State of
Idaho (via the Joint Application for Permits process) shall be contingent of any City engineering
approvals for this project.
As previously stated, this engineering review #1 is considered preliminary. Should the variance
application be granted, the City will work with the applicant and their design team to provide additional
review and comment to facilitate the final engineering review of this project.
US Army Corps of Engineers
In a letter dated September 1, 2020, the US Army Corps of Engineers stated that the applicant was
approved for a Nationwide Permit.
CONCLUSIONS OF LAW
1. The City of McCall has provided for the processing of Variances, authorized by Section 67-6516,
Idaho Code, pursuant to Title 3, Chapter 13 of McCall City Code.
2. Adequate notice of the September 1, October 2, and October 6, and December 3, 2020 and
February 11, 2021 public hearings were provided, pursuant to Section 67-6516, Idaho Code and Title
3, Chapter 15 of McCaII City Code.
DECISION
THEREFORE, the McCall City Council hereby denies this Variance (VAR-20-01) application.
Regulatory Taking Notice: Denial of a Variance application, or approval of a Variance application with
conditions unacceptable to the landowner, may be subject to the regulatory takings analysis provided for
by Section 67-8003, Idaho Code.
Findings of Fact adopted this 25th day of FEBRUARY 2021.
soot tu lj,g, ,
F- SB ) 0
Attest: •e O
• / �,*
i0
'rV
BessieJo Wagner City Lfff"
STATE OF IDAHO,
: ss:
County of Valley
Sanders Setback Variance — Findings of Fact
McCall City Council — February 25, 2021
Page 13 of 13
Robert S. Giles, Mayor
On this A.t, day ofP_Xf.% , 2020, before me, a Notary Public, appeared
ROBERT S. GILES and BESSIEJO WAGNER, known, or identified to me to be the MAYOR and CITY CLERK,
respectively, of CITY OF MCCALL that executed the said instrument, and acknowledged to me that they
executed the same on behalf of THE CITY OF MCCALL.
(SE
McCall
EDSON
NOTARY PUBLIC H STATE OF IDAHO
COMMISSION NUMBER 20200108
MY COMMISSION EXPIRES 1-10.2026
Ir
<otary Public for Idaho