Development Business - Sheila Sellman, City Planner
Title
Title
Granting a Variance to Section 18-424 of the City Code of Ordinances to Require Only Three Sides of a Pool Barrier Fence be Installed at 11546 Edison Street NE. Ryan and Julie Comer (Case File No. 22-0081/SLK)
end
Executive Summary
The applicant is requesting a variance to allow a lockable pool cover instead of a non-climbable fence as required in the Code of Ordinances. The applicant has installed a fence along three sides of their pool, with the variance being requested on the lake side of the pool.
Schedule of Actions
|
Planning Commission (Public Hearing) |
12/13/22 |
|
City Council (Variance) |
01/04/23 |
|
Action Deadline |
01/15/23 |
Background
Staff report prepared by Shawn Kaye, Planner, and Teresa Barnes, Project Engineer
Zoning
The property in zoned DF (Development Flex).
Surrounding Zoning and uses
The surrounding properties are zoned DF (Development Flex) and have a land use of LDR (Low Density Residential).
Comprehensive Land Use
The property has a land use of LDR (Low Density Residential).
Existing Conditions
The parcel has a single-family home with a pool in the rear yard. The rear of the home is located on a lake in the Lakes Development.
History
In 2018, the applicant received approval for a conditional use permit amendment to allow a reduced setback (in alignment with the garage setback) to construct an indoor sport court.
Several years ago, the International Swimming Pool Code introduced the option to allow lockable powered pool covers. In 2016 the City Council amended the ordinance to allow lockable power pool covers as an alternative to the required 4-foot fence around a pool.
In 2018, a concerned homeowner asked the City Council to consider removing the lockable pool covers as an option to the fence requirement. The concern was that a fence with a gate was more likely to provide a secure barrier from a neighbor’s pool. As a result, the City Council removed the ability to allow lockable pool covers as the security/safety option in June 2018.
Evaluation of Request
Code Requirement
(c) All private residential outdoor swimming pools shall be made inaccessible when not in use by a non-climbable barrier. It must also be positioned far enough away from permanent structures so that they do not provide climbing assistance. Exceptions:
(1) Spas and hot tubs with a lockable safety cover that complies with ASTMF 1346.
(d) Installed barriers should be at least 48 inches high from finished ground level, as measured along the outside of the barrier, and should have no more than a two-inch gap from the bottom of the barrier to the ground. Such height shall exist around the entire perimeter for a distance of three feet where measured horizontally from the required barrier. Openings in the barrier shall not allow passage of a four-inch diameter sphere.
The applicants installed a pool in the rear of their home after receiving a permit.
The property abuts one of the lakes in the Lakes development. The homeowner is requesting the same variance that was recently approved in 2021 for a home nearby on Edison Street to require only three sides of the fence be installed and not require a fence on the “lake” side of the pool. The applicant has also installed a powered lockable pool cover.
When granting a variance, there should be findings identified as to not set a precedent and identify any unique circumstances. Safety is the primary concern in requiring a barrier. The homeowner has installed a fence on three sides of the pool and has an approved powered pool cover so it could be argued that sufficient safety measures meeting the requirements of the International Swimming Pool and Spa Code have occurred.
The subject property is unique in that it abuts a natural lake barrier and is adjacent to only two other properties on each side. Staff would not support a variance if the property owner did not install three sides of the fence and was not adjacent to a natural lake barrier which reduces the amount of people that would have direct access to their backyard. Staff would also not support the variance unless a powered pool cover consistent with the International Swimming Pool and Spa code was installed, which has been installed.
The applicant should be aware that staff has been recently informed by management of the Lakes Master Association that non-fenced pools are not permitted based on language within the HOA covenants. HOA covenants can be more restrictive than city ordinances. The HOA management has also stated the HOA board is aware that permits have been granted for lakeside pools that only have a fence on the three sides of the pool not facing the lake. The HOA board is considering changing the regulation to match what the city is allowing. The homeowner should be aware of this; however, it does not materially affect the City’s decision regarding the variance request. The City is not responsible for enforcing HOA covenants.
(a) Criteria for granting variances. A variance to the provision of the zoning ordinance may be issued by the City Council to provide relief to the landowner in those cases where the ordinance imposes practical difficulty on the property owner in the use of his land. No use variances may be issued. A variance may be granted only in the event that the following circumstances exist.
1) Exceptional or extraordinary circumstances apply to the property which do not apply generally to other properties in the same zone or vicinity, and result from lot size or shape, topography, or other circumstances over which the owners of the property, since enactment of this ordinance, have had no control. The property is unique in that it abuts a natural lake barrier and is adjacent to only two other properties on each side. A powered pool cover consistent with the International Swimming Pool and Spa Code was installed along with fencing along the side lot lines.
2) The literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance. The same variance was recently approved in 2021 for a home nearby on Edison Street to require only three sides of the fence be installed.
3) That the special conditions or circumstances do not result from the actions of the applicant. The natural lake barrier in the rear yard is not due to the results of the applicant.
4) That the granting of the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other owners of lands, structures or buildings within the same district. The same variance was recently approved in 2021 for a home nearby on Edison Street to require only three sides of the fence be installed.
5) That the variance requested is the minimum variance which would alleviate the hardship. Economic considerations alone shall not be considered a hardship. Economic considerations were not part of the analysis.
6) A variance would not be materially detrimental to the purposes of this ordinance, or to other property in the same zone. The variance would not be detrimental to properties in the same zone. The property is unique in that it abuts a natural lake barrier and is adjacent to only two other properties on each side. A powered pool cover consistent with the International Swimming Pool and Spa Code was installed.
7) The proposed variance will not impair an adequate supply of light and air to the adjacent property, or substantially increase the congestion of public streets, or increase the danger of fire, or endanger the public safety, or substantially diminish or impair property values within the neighborhood. The proposed variance would not impact supply of light or air to the adjacent properties.
(b) The City Council may impose such restrictions and conditions upon the premises benefited by the variance as may be necessary to comply with the standards established by this ordinance, or to reduce or minimize the effect of such variance upon other properties in the neighborhood, and to better carry out the intent of the variance.
Grading/Storm Drainage
The grading and drainage for this residential house and pool have been previously completed. The installation of a fence does not require the review of grading or drainage of the property.
Wetlands/Watershed
The are no wetlands on the property. No watershed review is required.
Access/Street Design
No additional access or street design would be required with the installation of the remainder of the fence.
Easements/Right-of-way/Permits
No additional easements or right-of-way would be required with the installation of a fence.
Strategic Plan Relationship
Not applicable.
Board/Commission Review
The Planning Commission voted unanimously to approve the variance. The applicant and her contractor were the only public comments. They stated their reasons for requesting the variance.
Financial Impact
Not applicable.
Public Outreach/Input
Notices of a public hearing were:
1. Mailed to property owners within 350 feet of the property boundaries.
2. Published in Blaine/Spring Lake Park/Columbia Heights/Fridley Life.
3. Posted on the city website.
Staff Recommendation
By motion, approve the resolution.
Attachment List
Zoning and Location Map
Site Plan
Pictures
Narrative
Applicant Criteria Findings
Unapproved Planning Commission Minutes 12/13/22
Body
WHEREAS, an application has been filed by Ryan and Julie Comer as Case File No. 22-0081 for a variance to Section 18-424 of the City Code of Ordinances that requires a barrier/fence around a pool; and
WHEREAS, said case involves the land described as follows:
Lot 26, Block 2, THE LAKES OF RADISSON 12TH ADDITION
WHEREAS, a public hearing has been held by the Blaine Planning Commission on December 13, 2022, and the Planning Commission recommends approval; and
WHEREAS, the Blaine City Council has reviewed said case on January 4, 2023.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Blaine that a variance is hereby approved per Section 18-424 of the City Code of Ordinances that requires a barrier/fence around a pool with the following findings:
1. The property is unique in that it abuts a natural lake barrier and is adjacent to only two other properties on each side.
2. The applicant has installed an approved lockable powered pool cover so it could be argued that safety measures meeting the requirements of the International Swimming Pool and Spa code have occurred.
PASSED by the City Council of the City of Blaine this 4th day of January, 2023.