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--.. .-� determined that the property can be put to a reasonable use under the official controls if the VARIANCE request is approved. 5.4 The plight of the landowner is due to circumstances unique to the pronerty not created bv the landowner: The City created, and necessarily maintains, the utility and drainage easements on the property, so the presence of these easements is outside of the control of the applicant. The Planning Division has determined that the plight of the landowner is due to unique circumstances not created by the landowner. 5.5 The variance, if granted, will not alter the essential character of the localitv: A private swimming pool will not have negative effects on the surrounding area provided that it comply with all of the safety requirements established in §905.03 of the City Code. The Planning Division has determined that the allowance of the requested VARIANCE will not alter the essential character of the locality, nor adversely affect the public health, safety, or general welfare of the city or adjacent properties. 5.6 The applicant also proposes to construct decking around the pool. Decks are considered legal encroachments by § 1012.02 of the City Code, provided that the floor of the deck does not extend above the height of the main floor level of the principal structure and that the deck remain at least 2 feet from the side and rear property lines. 5.7 The oblique site photo (Attachment D) indicates that the residence (i.e., the principal structure) on this property is a split-level house. Given that the upper level in such houses are 4 to 5 feet above grade and tend to be the "main floor", construction of a deck around a 4-to-5-foot-deep above-ground pool would be consistent with this Code requirement, provided that the decking not extend to within 2 feet of the side and rear property lines. 5.8 Decks and gazebos are not permitted within utility easements without a signed "encroachment agreement". The existing attached deck and gazebo appear to have been constructed within the sanitary sewer easement, but the Public Works Department has no such document on file. City staff believes that it would be reasonable to allow the pool decking to be built over, and have footings within, the utility easement if the applicant were to enter into an encroachment agreement. 6.0 STAFF RECOMMENDATION 6.1 Based on the comments and findings outlined in Section 5 of this report, the Planning Division recommends APPROVAL of Mr. Escobar request for a 5-foot VARIANCE to the required swimming pool setback from a side and rear property line, established in §905.03A (Swimming Pool Location) of the City Code, to allow the proposed above- ground pool on the residential property at 175 Burke Avenue, subject to the following conditions: a. The proposed pool must remain at least 5 feet from the eastern and southern property lines and outside of the existing sanitary sewer easement on the property; PF07-043 RVBA 080107 Page 3 of 4