Windermere council denies expansion variance

The Windermere Town Council on Tuesday, Oct. 10, denied unanimously a variance request to allow for the expansion of a non-conforming side setback.

The request, submitted by Eric Powell, Ryka LLC, pertains to the property located at 212 W. First Ave.

Town Planner Brad Cornelius said the applicant is proposing to reconstruct the existing single-family home, which was built in 1959, on the subject property to expand the home with a second-story addition. 

The existing home is non-compliant with the required side setbacks of 10.9 feet. 

The home is 7.83 feet from the east side property line and 10.17 feet from the west side property line. The home is compliant with the required front and rear setbacks.

The applicant’s proposed reconstruction expands the existing second story portion of the home to encompass the entire single-family home footprint. The applicant’s proposed reconstruction also would be at the same non-conforming side setback of 10.17 feet and 7.83 feet.

The proposed reconstruction is compliant with the maximum allowed height of 35 feet, maximum allowed gross floor area and maximum allowed impervious area.

RECENT RULE REVAMP

The town’s recent change to the non-conforming structure requirements, first discussed in May, states “non-conforming development or structures shall only be expanded or improved if the expansion or improvement is fully compliant with the requirements of this Land Development Code, and the non-conforming condition is not increased as a result of the new construction.” 

Non-conforming development is also subject to the following requirements: If a non-conforming development or structure is voluntarily fully or partially demolished, any reconstruction must meet all requirements of the LDC, and any expansion or improvement to the existing single-family home must be fully compliant with the town’s current LDC requirements and cannot expand the existing non-conformity.

The proposed expansion of the home increases the existing non-conforming condition, not meeting required side setbacks, and is inconsistent with the LDC.

“Our idea there also would be (to) continue the first floor up through the second floor at the same elevation,” Powell wrote in a letter to the town. “There will be no windows on that side of the home, first or second floor, which I think is a much better idea and much more private for my neighbor versus stepping in the second floor, making it a deck along that side. To me, this would be intruding on the neighbor, because their living space is mostly on the second floor also. … We plan to live in this house. We still have three kids at home. We aren’t trying to build a mega-mansion. We’re just trying to build a moderate house with enough space for everyone to be able to live comfortably.”

“I think that was (the) council’s intent because 10% was so low that you couldn’t even remodel,” Mayor Jim O’Brien said. “For me, what comes up with this particular modification is that it’s a major modification, and they’re essentially rebuilding an entire house. … There’s certainly nothing in our code that excludes you from building a two-story house. I think the issue, per se, is that it’s a major renovation, and it may just behoove you to be at the proper setback. Then you can build anything you want, two stories all the way up to 32 or 35 feet or whatever it is. … It’s a lot of separate issues built into one request.”

The LDC empowers the Development Review Board to review and make recommendations for approval, as well as approve with conditions or denial to the Town Council on variance requests.

The LDC requires the Town Council to consider the recommendation of the DRB and to take final action to either approve or deny the variance request.

At the DRB’s Sept. 19 meeting, the board recommended approval of the variance 3-1 with two conditions: The applicant must eliminate the rear access easement, as well as install an advanced nutrient-reducing septic system.

OPPOSING OPINIONS

The town said public notices were mailed to property owners within 500 feet of the subject property. 

As of Oct. 3, four responses were received in support of the variance and five in opposition.

AJ and DS Clark were two of the residents to voice their concerns regarding the variance.

“The single-story home is already non-conforming and too close to our property and our well, and a second-story so close would reduce our access to light and be unreasonably imposing,” the Clarks wrote in a letter to the town. “We would welcome a new home next to ours as an enhancement, but not at the expense of our quality of life and home value.”

Resident Sara Lopez also submitted a letter.

“Our position is that of disapproval due to the request for a variance,” Lopez wrote. “We would like to take this opportunity also to share that having a deck that covers the full diameter of the roof causes a lack of privacy for the neighbors in close proximity.”

Resident Tony Clark spoke against the variance.

“We’re extremely concerned that our views as the most impacted residents have not received the consideration they deserve,” he said. “The impact on our home, loss of light and the proposed breach of the town of Windermere’s LDC. Let’s be clear from the outset: We have absolutely no objection to a new home being built at 212 W. First Ave.; I even encourage it. … We are fully understanding of what they want to do, we’re supportive of there being a new home, we just feel that it’s grossly unfair that the proposals are clearly a breach of the LDC.”

“I hate even telling people what to do with their houses,” Council Member Tom Stroup said. “But I really care a lot about people’s opinions that live around. … I take into consideration a lot what people say that are affected by it.”

The motion passed unanimously, with Council Member Mandy David absent.