Variance for allegedly honest mistake

[luluhead]

One of our old time marine contractors built a seawall that is 1.5 ft too high than the allowed maximum. No special circumstances of whatsoever. He claims that he made an honest mistake, that our elevation markers are off in that area, etc, etc. We don't believe it. We're pretty positive that he planned all this, i.e. make up a good story, get after the fact variance. We really don't want to grant the variance, but he will be all lawyered up (it was $100K+ job) and all we have to say "well, his "mistake" was intentional"... Also, this case does not meet any of the standards of determination set in the process. He just did it.

Does anyone have any experience with something like this. He will push.

[Suburb Repairman]

All you can do it state the facts as they are known. At this point, since he has provided no proof of erroneous elevation markers, I don't see a reason to grant the variance. People threaten lawsuits all the time when it comes to variances--it doesn't impress me. In 10 years I've had one variance go to court; lots of people bark about it but rarely will they bite. My boards typically deny about 85% of variance requests. Now if he churns up proof that the elevation markers were incorrect, then it gets more interesting. Also, keep in mind that when it comes to overturning a zoning board of adjustment decision, courts typically don't go back to rule to the facts of the case and instead defer to the board decision. It is only when there is an error in fact or the board has acted illegally (i.e. procedural due process) that you have risk. The burden of proof is on the appealing party.

However, there is the "headache quotient" to consider. Is it worth it? Will the City fund legal defense if it uses outside counsel? Does your Board and City Council have a strong spine?

I've always been fortunate that my Boards & Councils have had fairly strong spines and don't cave to empty threats. You might not be that fortunate.

[mike gurnee]

He may push, but will your board cave? An honest mistake is not grounds for a variance. You may want testimony to be sworn; you may want a transcriptionist. Get with your attorney as soon as possible. You have to show 1) what the code says; and 2) what was actually constructed. The nature of the mistake (intentional or not) does not matter.

Oh, and good luck.

[NHPlanner]

In NH we have a mechanism to deal with these types of "measurement issues" called an Equitable Waiver of Dimensional Requirements:

674:33-a Equitable Waiver of Dimensional Requirement. –
I. When a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance enacted pursuant to RSA 674:16, the zoning board of adjustment shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver from the requirement, if and only if the board makes all of the following findings:
(a) That the violation was not noticed or discovered by any owner, former owner, owner's agent or representative, or municipal official, until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value;
(b) That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner's agent or representative, but was instead caused by either a good faith error in measurement or calculation made by an owner or owner's agent, or by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority;
(c) That the physical or dimensional violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property; and
(d) That due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be corrected.
II. In lieu of the findings required by the board under subparagraphs I(a) and (b), the owner may demonstrate to the satisfaction of the board that the violation has existed for 10 years or more, and that no enforcement action, including written notice of violation, has been commenced against the violation during that time by the municipality or any person directly affected.
III. Application and hearing procedures for equitable waivers under this section shall be governed by RSA 676:5 through 7. Rehearings and appeals shall be governed by RSA 677:2 through 14.
IV. Waivers shall be granted under this section only from physical layout, mathematical or dimensional requirements, and not from use restrictions. An equitable waiver granted under this section shall not be construed as a nonconforming use, and shall not exempt future use, construction, reconstruction, or additions on the property from full compliance with the ordinance. This section shall not be construed to alter the principle that owners of land are bound by constructive knowledge of all applicable requirements. This section shall not be construed to impose upon municipal officials any duty to guarantee the correctness of plans reviewed by them or property inspected by them.

[ColoGI]

At this point, since he has provided no proof of erroneous elevation markers, I don't see a reason to grant the variance. People threaten lawsuits all the time when it comes to variances--it doesn't impress me. In 10 years I've had one variance go to court; lots of people bark about it but rarely will they bite. ...The burden of proof is on the appealing party.

However, there is the "headache quotient" to consider. Is it worth it? Will the City fund legal defense if it uses outside counsel? Does your Board and City Council have a strong spine?

He may push, but will your board cave? An honest mistake is not grounds for a variance. You may want testimony to be sworn; you may want a transcriptionist. Get with your attorney as soon as possible. You have to show 1) what the code says; and 2) what was actually constructed. The nature of the mistake (intentional or not) does not matter.

Oh, and good luck.

I have no reason to believe anyone when they cry 'honest mistake'. It is in the nature of people to try and get away with anything and everything - that is why we have ordinances, inspectors, permits, lawyers. And we also have Boards that cave and back down to avoid a conflict and hassle.

There has to be consequences for the action. You can't set precedent for everyone else to try and achieve.

[Otis]

In similar situations I put together a staff report that says, in essence, "Here are the four variance criteria, all of which must be met (Oregon law sets out the criteria for a variance; I imagine Florida's are different, but probably similar)".
"Criterion 1 says there has to be something unusual about the lot (i.e. a hardship) over which the applicant has no control. There is nothing unusual about the lot because XYZ (it's just like every other lot in similar circumstance). Violating the law and building the wall too high is not a hardship. Doing something illegal and claiming it would be an economic hardship to correct it is not the kind of hardship the ordinance contemplates. You can't create a situation and then claim it causes you are hardship to correct it. This criterion is not met.
"Criterion 2 says the variance must be necessary for preservation of a property right. He doesn't need the variance to be able to build on the lot. This criterion is not met.
"Criterion 3 says the variance must not be detrimental to the purposes of the ZO. The variance would be detrimental because of XYZ (whatever the reasons are for only allowing the seawall to be X feet high. This criterion is not met.
"Criterion 4 says the variance requested must be the minimum necessary to alleviate the hardship. There is no hardship so this criterion is not met.
"Planning Commissioners, you can grant a variance only if all four criteria are met. They are not. You can't grant the variance."

I would have facts in the report to support all my assertions, and I would have an estimate of how much it would cost to correct the problem.
I would drum into them that they have to apply the law, not roll over for a good ol' boy.

Just to play devil's advocate here a bit, with sea level rise would higher seawalls be a good idea? Do you want to defer the matter until you have had a chance to evaluate whether to amend the ordinance standards for seawalls?

[AG74683]

Our code here specifically states that

Article VI - Section 3.2 - (3)

That the special conditions and circumstances do not result from the actions of the applicant

There is a section buried somewhere in here (that for the life of me I cannot find right now) that specifically mentions that variances will not be granted for the mistakes of others.

Urge your Board to keep in mind that allowing the variance in this case could set a precedent that will be hard to back out of.

[OfficialPlanner]

It should not make any difference if it was an honest mistake or intentional. I'm assuming the code is silent on remedies and after the fact applications? If so, the political body might just grant the variance to avoid the headache, unfortunately.

[SW MI Planner]

I don't think there's a way to show his actions were intentional or not, and like others have mentioned, it doesn't matter. If the variance request doesn't meet the criteria, it shouldn't get approved. I do think you should look into the elevation markers to ensure they are correct though and determine if there is anyway possible what he built could be in compliance.

NHP, that's interesting the NH has the equitable waiver provision. I'm curious about subsection (b) though - how can anyone prove that the violation was due to ignorance of the law and not a willful action? It seems that it comes down to their word. Just curious....

[Random Traffic Guy]

Just to play devil's advocate here a bit, with sea level rise would higher seawalls be a good idea? Do you want to defer the matter until you have had a chance to evaluate whether to amend the ordinance standards for seawalls?

This was my question also, what's wrong with a higher seawall? I would have thought that people would try to skimp there.

BTW the true planner answer is to have your city atty, P&Z, or council fold like a cheap suit to the applicant's bluster. Then you try to get back at the applicant by a bunch of passive-aggressive findings on his next application.

[mike gurnee]

BTW the true planner answer is to have your city atty, P&Z, or council fold like a cheap suit to the applicant's bluster. Then you try to get back at the applicant by a bunch of passive-aggressive findings on his next application.

So you have been there also.

[Jeff]

As others have stated previously....

Is there a downside to this? Shouldn't you be happy you "got a little more" out of him?

What was his gain?

This seems, to me, that you need to decide if this is worth your time.