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Home My WebLink About09-09-2002 Variance Request at 703 Palenci Ct in Seville ChaseBROWN, WARD, SALZMAN & WEISS, P.A. Usher L. Brown' Suzanne D'Agresta' Anthony A. Garganese" Gary S. Salzman' John H. Ward ' Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer *Board Certified Business Litigation Lawyer Board Certified City, County & Local Government Law Attorneys at Lan) Offices in Ortmido, tssimmee, Cocoa & Viera September 9, 2002 Mr. Ronald W. McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 Re: Variance Request at 703 Palenci Court in Seville Chase City of Winter Springs / General File No. 1193 Dear Ron: Debra S. Babb Jeffrey P. Buak Alfred Truesdell John U. Biedenharn,Jr. Joseph E. Blitch Scott D. Danahy Todd K. Norman Vincent E. Scarlatos Erin J. O'Leary Of Counsel This letter serves to follow-up on the City Commission's decision to deny a variance on an 11-inch deck and screen pool enclosure which encroaches into a drainage easement located at 703 Palenci Court and the subsequent meetings and discussions which have occurred since that denial. In sum, as more fully explained below, it is our opinion that the Seville Chase recorded plat and the corresponding Declaration of Covenants prohibit any encroachment into the 20-foot drainage easement. The City has two realistic options to handle the encroachment: Require the property owner to remove the pool deck and enclosure from the easement area and repair the environmental swale pursuant to the Seville Chase engineering plans, or 2. Vacate the portion of the easement where the pool deck and enclosure is located and require the property owner to recreate the environmental swale in the remaining easement area pursuant to the Seville Chase engineering plans. 225 East Robinson Street, Suite 660 • P.O. Box 2873.Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orfandolaw.net • Email: firm@orlandolaw.net 1 Mr. Ronald W. McLemore, City Manager City of Winter Springs September 9, 2002 Page 2 As we understand the situation, the property owner hired Sunrise Pools & Spas to build a custom, screened pool enclosure/deck extending to the south side boundary of the property. Along the south side boundary is a 20-foot drainage easement. The drainage easement is set forth in Plat Book 51, Page 1, recorded in the Public Records of Seminole County, Florida. In accordance with the plat dedication, the drainage easement is dedicated to the City of Winter Springs and the Seville Chase Homeowners Association. The construction of the pool enclosure/deck caused an encroachment into the drainage easement. The maximum encroachment is 11 inches. By its own admissions, Sunrise Pools and Spas, on behalf of the property owner, admitted to the encroachment and attributed such error to the difficulty in using a 40-scale plat survey to construct the project. Additionally, at the time the City's Building Department approved the enclosure/deck, City officials noted on the survey to "stay out of the drainage easement" and also noted that the screen enclosure must meet the requirements set forth in Official Record Book 3124, Pages 0865 and 0866. On November 1, 2001, the Board of Adjustment recommended the denial of the property owners' request for a variance upon failing to meet the requirements under Section 20-82 of the City code. The City Commission subsequently denied the variance request. As mentioned, the drainage easement is dedicated to the City of Winter Springs and the Seville Chase Homeowners Association. Several provisions of the Seville Chase Declaration of Covenants are worth noting. Article 14, Section 14.1.2 specifically addresses the reservation of drainage easements in Seville Chase and provides, in pertinent part, as follows: 14.1.2 Drainage Easements. There is hereby created, declared and reserved for the benefit of the Developer, this City, the Association and all Owners, a non-exclusive easement for storm water collection, retention, detention and drainage, under, over, upon and within all drainage easements. ..shown on the Plat or otherwise reserved, declared or created pursuant to this Declaration, together with an easement and license in favor of the Developer, the City, and the Association only to enter upon such areas for such purposes of constructing, installing, inspecting, maintaining, repairing and replacing any and all storm water drainage systems, improvements and facilities from time to time located therein or thereon. ...The developer intends to construct berms and drainage swales within the portions of the Drainage Easements (D.E.) identified on the Plat for the purpose of managing and containing the flow of excess surface water, if any. Each owner, including buildings, shall be responsible for the maintenance, 225 East Robinson Street, Suite 660 • P.O. Box 2873. Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net 'I Mr. Ronald W. McLemore, City Manager City of Winter Springs September 9, 2002 Page 3 operation and repair of the berms and drainage swales on their respective Lots. Likewise the Association shall be responsible for the maintenance, operation and repair of the berms and drainage swales that are not located on a Lot (e.g. within a Conservation Area). Maintenance, operation and repair shall mean the exercise of practices, such as mowing and erosion repair, which allow the berms and drainage swales to provide drainage, water storage, conveyance or other storm water management capabilities as permitted by the St.Johns River Water Management District. ...Filling, excavation, construction of fences or otherwise obstructing the surface water flow in the swale is prohibited. No alteration of the berms and drainage swales shall be authorized and any damage to any berms and drainage swales, whether caused by natural or human - induced phenomena, shall be repaired and the berms and drainage swales returned to their former condition as soon as possible by the party (i.e. Owner or the Association) having responsibility for the maintenance of the damaged berms and drainage swales after first receiving approval from the St. Johns River Water Management District and the City. (Bold emphasis added.) Therefore, it appears that any encroachment, such as the construction of a pool deck/enclosure, would be expressly prohibited under the Declaration of Covenants. Furthermore, any alteration to the drainage berms or drainage swales would likewise be prohibited. The property owner should, therefore, be required to remove the encroachment from the drainage easement and repair the drainage berms and swales pursuant to the Seville Chase engineering plans. A less preferable alternative, which establishes a potentially dangerous precedent, is for the City to vacate the portion of the drainage easement on which the encroachment is located. Any such efforts should first require technical analysis that confirms that the vacation would not adversely affect the drainage system. In addition, if the easement is vacated, the drainage berms and swales should be recreated on the remaining portion of the easement pursuant to the Seville Chase engineering plans. Further, the property owner should also request that the homeowner's association vacate the same portion of the easement and request approval from the St. Johns River Water Management District who approved the drainage system in the first place. 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net Mr. Ronald W. McLemore, City Manager City of Winter Springs September 9, 2002 Page 4 Lastly, I want to note that the City Commission does not have the jurisdiction to grant a variance because the applicable restriction is not a City Code provision but a covenant on the land. Thus, the City Code variance procedure would not apply, and the City Commission's decision to deny the variance was proper. If you have any questions regarding this matter please call me. V ruly yours, i Anthony A. Garganese City Attorney AAG:jf cc: Mayor and City Commissioners Sunrise Pools & Spas Richard and Laura Miller (Property Owners) 225 East Robinson Street, Suite 660 - P.O. Box 2873. Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net