There is something seriously wrong with the Land Development Code when a property owner is required to spend $650 or more, file paperwork, wait 3 weeks and appear at a public hearing just to obtain basic legal rights to use their property. Wednesday night’s Board of Adjustment hearing was a double dose of insanity that was both humorous and painful for the applicants, the board members and the audience.
First up was a local homeowner, represented by a local architect, John Cotner, trying to obtain a variance to place an in-ground pool 3 feet from the property line. This might have been a legitimate cause for a variance, if the applicant had not already appeared before the board 6 months before and obtained approval for the house plan, including the same pool. The site plan showed the pool on the plan, but a note said that the “pool would be permitted later on a separate permit”. When the applicant applied for the pool permit he was informed by staff that this would require its own variance because it was not specifically written on the last variance. Because City staff has no authority to use common sense and make an executive decision the only option was for the applicant to apply for a new variance and pay another $650 fee.
The 2nd applicant was the victim of a serious flaw in the Land Development Code (LDC). The LDC requires a corner lot be setback 25 feet from the front street, 15 feet from the side street, and 10% of lot width from the neighboring lot, which is 5 feet. Sounds like a great idea in theory, until it is applied in practice in the downtown district which is comprised of mostly 50 x 100 foot lots, (that is, 50 ft wide, 100 ft deep). This applicant’s lot had an old house on it that was built to face the 100 ft side of the lot, essentially making the lot 100 ft wide and 50 ft deep. It was built by the old rules with a 12 ft front setback. He wanted to tear this house down and rebuild, but the current code also requires that the house be placed 25 feet from the front property line and 20 feet from the rear. In order for the applicant to face his house the same way, on a 50 foot deep lot, with these front-back setbacks, the house would only be 5 feet deep. Obviously this won’t work. If the house were turned 90 degrees, facing the other street, using the front-side setback rules for a corner lot, the house must now be 25 feet from the front street, 15 feet from the side street, and 5 feet from the neighboring lot. With what is now a 50 ft wide lot, subtract 15 feet from one side, 5 feet from the other side for a total of 20 feet of setbacks. This leaves a 30 foot wide house, meaning there is no reasonable way to have a garage, and the house can only be 1,650 SF total.
The applicant tried to apply for the “context sensitivity” setback but was denied because there are no houses on this particular block, but a quick look at homes across the street and a block away show many to be similar in nature and with 12 foot setbacks. Most homes were built prior to the new LDC, meaning that hundreds of homes are now considered “non conforming” and will face similar issues when they are replaced. Mr. Miller was merely trying to replace a home of the exact same size and character that sat on this site for 70 plus years. Mr. Miller was fortunate enough to have great friendly neighbors willing to come and speak on his behalf to support his application; something you can rarely count on today. Several board members questioned why either applicant needed to be there.
A review of the staff report shows that they were obligated to oppose approval, either because they believed their own findings or they were not allowed to express an opinion. Staff should be allowed to use common sense so they can properly advise the PAB or Variance Boards in future hearings. Merely interpreting the literal word of the LDC led to a staff report that called for denial. That would have been a travesty. Something is clearly wrong with the process.
Fortunately both applicants were approved 4-0. Had the LDC been properly written and staff granted authority to use common sense each applicant would have been spared the $650 in fees plus expenses and time, the Adjustment Board would not have even had to meet and dozens of hours of staff time would not have been wasted. The Land Development Code is so onerous and inflexible that it creates problems that should not exist. There has to be balance in the code that protects the society in general while preserving basic property rights. The commission should make revising these and other similar flaws a high priority in order to save staff time, the public money and help to clean up the City’s longstanding reputation as being a difficult place to build in. Then maybe some day all those vacant unbuildable corner lots in the downtown area will be built on and pay taxes. We can’t allow these ridiculous LDC rules to be perpetuated. They only to continue to dampen enthusiasm and burden taxpayers and homeowners with unneeded bureaucracy and feed the City Hall machine. Staff and taxpayers have more important issues than to waste time on these types of “rules”.