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Thread: Dilemma with client for opinon I provided to ZBA

  1. #1
    Cyburbian Wannaplan?'s avatar
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    Dilemma with client for opinon I provided to ZBA

    I provided an opinion for a client's ZBA last week and the meeting is this week. I work for a private planning consulting firm and my opinion was not well-received by my client. It's for an addition to a warehouse in an industrial district.

    The applicant is asking for a variance on the side yard setback. In 1999 when the building was constructed, the sideyard setback was 20 feet. But in 2002, the client updated the zoning ordiance and now the side yard setback is 25 feet. Therefore, it is now a non-conforming structure. The applicant wants to add onto the structure, using the old setback of 20 feet. Because the zoning ordinace clearly states that any additions to a non-conforming building must be to the current zoning ordinance standards, I denied the variance request. The applicant still can build their 3,000-sf addition on the site even when they follow the ordinance to the letter.

    The one complication is that at the time the original site plan was approved in 1999, their plans did show a "future addition" of 600-sf that conformed to the old side yard setback. My client contact is upset with my conclusion stating that the planning commission already approved the addition back in 1999. I say "not so fast" because in 1999, a 600-sf addition was approved, not the 3,000-sf addition that is in front of us today.

    I see no reason to grant the variance. I know it's only five feet in an industrial district. But the ordinance makes it very clear that any addition to a non-conforming structure must meet the requirements of the current zoning ordinance. The cleint wants me to change the opinion. But I disagree - I see no way to allow the addition. Help?

  2. #2
    Cyburbian Emeritus Chet's avatar
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    I have worked with codes that allow additions that do not increase the degree of non-conformity. i.e. continuing the 20 foot setback would not; a 19 foot setback would.

    Be the hero and suggest to the client that a code amendment is an option.

  3. #3
    Cyburbian SW MI Planner's avatar
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    Question, are they going to encroach even further into the side yard setback? Or would the addition be consistent with the existing building at 20 feet?

    Here is my opinion - not sure if it helps at all.

    If the client is claiming that the addition is allowed because it was on the site plan, why are they making the business apply for a variance? They are contradicting themselves by doing so. Either way, I think the site plan is a moot point - the future addition indicated 600 sq. ft. and is in compliance with existing zoning. Now the proposed addition is larger and encroaching into the setback. You can't grandfather something that was never there.

    Because the zoning ordinace clearly states that any additions to a non-conforming building must be to the current zoning ordinance standards, I denied the variance request.
    There you have it - that shows that they can't just appprove it administratively and that they have to apply for a variance. However, approval or denial should be based on the variance criteria. Regardless of everything else, (i.e. history), the request should be denied if it does not meet all of the criteria, or approved if it does.

    The applicant wants to add onto the structure, using the old setback of 20 feet.
    Can't do it - current rules say 25 feet. Thats like saying you want chickens in your backyard, and you should be able to because 10 years ago it was allowed.

    This kind of goes back to your other question regarding ethics - they are paying you for your professional recommendation. Whether they choose to follow it or not, is up to them.

  4. #4
    Cyburbian Wannaplan?'s avatar
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    Quote Originally posted by Chet
    I have worked with codes that allow additions that do not increase the degree of non-conformity. i.e. continuing the 20 foot setback would not; a 19 foot setback would.
    That is an interesting tactic. Does it apply to an ordinance that states the following?

    A non-conformity will not be enlarged upon, expanded, or extended unless such alteration fullly complies with all the requirements set forth in the Appleville Zoning Ordinance.
    My feeling is that I would not be able to take up your reccomendation. My reading of that ordinance text makes it clear that no variances will be granted to a non-conforming structure.

    Quote Originally posted by SW MI Planner
    This kind of goes back to your other question regarding ethics - they are paying you for your professional recommendation. Whether they choose to follow it or not, is up to them.
    That's exactly what I am dealing with right here! I am being asked to find a way to make the variance request workable. And based on the zoning ordinance, it is crystal clear that it is not workable. The applicant will still be able to build their expansion, however, they want the variance because construction will be cheaper.

    The problem will be later this week when I go before the ZBA and they are ready to approve the variance because the client has already told them to approve it. What do I say? I have no problem providing a recommendation that will be ignored, but I am afraid I will look like an ass because the cleint will be there and will belittle the way I arrived at the recommendation. As much as I would like to, I could defend myself at the meeting, but what would be the point of that?
    Last edited by NHPlanner; 19 Jan 2005 at 11:32 AM.

  5. #5
    Chairman of the bored Maister's avatar
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    Quote Originally posted by Wanigas?
    I see no reason to grant the variance.
    Nor do I. And no, I don't believe approval of a plan indicating some desire to build an addition at some indeterminate date in the future would make the old code the applicable standard either.
    Since the setback is now 25' the only pertinent question is whether or not there is some practical difficulty or unnecessary hardship present which prevents them from readily constructing in accordance to current code. I'm just spitballing here, but maybe there's some practical difficulty present given the structures' current layout. Perhaps an impractical roofline might be created by staggering the building's setback? (I know I'm stretching)
    People will miss that it once meant something to be Southern or Midwestern. It doesn't mean much now, except for the climate. The question, “Where are you from?” doesn't lead to anything odd or interesting. They live somewhere near a Gap store, and what else do you need to know? - Garrison Keillor

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    Cyburbian donk's avatar
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    On a very technical note, it is typically illegal to presuppose or limit a future decision making body's legal right to grant a variance. As such, the section of the By-law that does not permit a Committee to grant a variance may be ultra vires. Another way to interpret this section is that approval may not be given by Staff, but does not limit the authority of any duly appointed committee to grant the request.

    As an example, the Building Offical can not issue a building permit that does not comply with the By-law, clearly stated, but does this statement legally limit the approval authority's ability to grant a variance? I doubt it.
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  7. #7
    Cyburbian Wannaplan?'s avatar
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    Quote Originally posted by Maister
    I'm just spitballing here, but maybe there's some practical difficulty present given the structures' current layout. Perhaps an impractical roofline might be created by staggering the building's setback?
    Maybe, just maybe. But the onus for showing that is on the applicant, right? At the ZBA meeting, all I can do is provide my recommendation, based on what I already know. The practical difficulty issue is not my problem, right?

    Quote Originally posted by donk
    Another way to interpret this section is that approval may not be given by Staff, but does not limit the authority of any duly appointed committee to grant the request.
    If I follow what you are saying then, is that my recommednation is just that, a professional opinion provided to guide decisions. Since I don't have decision making authority - that's the job of the ZBA - I should consider my job done, once the recommendation is provided. Am I correctly following what you are saying?
    Last edited by NHPlanner; 19 Jan 2005 at 11:32 AM.

  8. #8
    Cyburbian SW MI Planner's avatar
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    I agree with Chet, suggest an ordinance amendment to prevent future problems of this nature.

    For what its worth, our ordinance is very similar to the language you posted and we have no problems with it. It sounds like your client wants to just make it go away as easy and quickly as possible.

    I don't think the ZBA meeting is the proper place to verbally debate the issue with the client. Does your ZBA get a copy of your recommendation, or just the staff? That would contain your reasoning for denial (or approval) which they should see. If they haven't gotten a copy of it than maybe you should go through the points in your memo.

    What do your coworkers say about this?

    Maybe, just maybe. But the onus for showing that is on the applicant, right? At the ZBA meeting, all I can do is provide my recommendation, based on what I already know. The practical difficulty issue is not my problem, right? If I follow what you are saying then, is that my recommednation is just that, a professional opinion provided to guide decisions. Since I don't have decision making authority - that's the job of the ZBA - I should consider my job done, once the recommendation is provided. Am I correctly following what you are saying?
    Yes, Yes, and Yes
    Last edited by SW MI Planner; 17 Jan 2005 at 2:26 PM.

  9. #9
    Cyburbian Cardinal's avatar
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    If it were me, I might suggest three possibilities for the ZBA:

    1. Deny the request, as the odinance makes it very clear that this expansion must comply with current setback requirements.

    2. Approve the variance, recognizing that if the approval would be challenged, it would be found to be illegally granted.

    3. Suggest that there is a problem with the ordinance. Perhaps the setbacks should be adjusted back to 20 feet, in developed areas at least, or that there should be a provision to allow for the expansion of a building at its existing setback. (thanks, Chet)
    Anyone want to adopt a dog?

  10. #10
    Cyburbian Wannaplan?'s avatar
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    Quote Originally posted by Cardinal
    2. Approve the variance, recognizing that if the approval would be challenged, it would be found to be illegally granted.
    I like this approach - it is workable. I can please the client while maintaining my professional integrity. Thanks!

  11. #11
    Cyburbian donk's avatar
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    Quote Originally posted by Wanigas?
    If I follow what you are saying then, is that my recommednation is just that, a professional opinion provided to guide decisions. Since I don't have decision making authority - that's the job of the ZBA - I should consider my job done, once the recommendation is provided. Am I correctly following what you are saying?
    Partially, but then it is your responsibilty to examine the criteria for granting a variance and comment on each of them and how the proposal meets or does not meet them. I would tend to think of the addition as a new case with possible extenuating circumstances.

    Here we have 3 main tests

    1) Minor in nature, with minor not having a clear definition.
    2) Orderly development of land
    3) Maintains intent of By-laws (Zoning and Plan)

    I would typically suggest that an addition to a building that would not further an existing encroachment is reasonable provided that other items required, such as required landscaping and access can be provided. Determine what the purpose of having the new larger setback is and take it from there. For more info you might want to check your local building code to determine the minumum separation distances required between combustible openings (ie windows).
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  12. #12
    Cyburbian munibulldog's avatar
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    If the issue is trying to maintain an existing building wall line, I would ask the ZBA to consider whether that a hardship worth granting a variance for. If the project is a good one, they might go for it.

    I also think that you have to advise the developer how he can correctly ask for what he wants. It is too much to expect of the public to know the intricacies of variances and the zoning code.

    Code is code, but on the other hand, the variance procedure is the pressure relief valve when good projects don't meet code.

  13. #13
    Cyburbian
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    I have a fairly liberal board of appeals when it comes to variances. They grant many when I tell them that there are no grounds for granting the variance. However, even they draw the line when the applicant has other alternatives for accomplishing the expansion requested without the variance relief. My ZBA would therefor deny this request.

    As to the 1999 "future" addition, usually a permit has a particular time period for completion of all work and a lapse of that time period would invalidate the "future addition." In my view the 1999 plan future addition is no longer valid.

    Just my two cents. Otherwise I agree with SW MI Planner and Cardinal that there is little justification for the variance. I work for the town and no I am going to be overruled on occasion without it affecting my position. Not sure how it works when you are a consultant. I stick by my guns even when I know going in that the ZBA may approve something that a strict interpretation would require them to deny. Hey that is there role to make their own decision based upon the information provided. If you work as a consultant to the town, that is what you are paid to do, the developer has to inform the board as to why your interpretation is wrong, or why they should vary the by-law in this specific instance.

    Do not know the state or set of statutes you have to work under on variances but... most are the same, the board can approve something they should not, and if it is not challenged so be it.
    Planning is much like acting, as my old theater professor used to say, "If you sin, sin boldly, only you know if you are ad libbing." I follow this adage almost daily.

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