Ethics and legality

[RandomPlanner]

I'm not sure what to do about this one, so I thought I'd throw it out for the throbbing brain to contemplate -- in a nutshell:
Applicant (from Town next door) wants to build deck on lake front side of property. CEO tells him he needs an area variance because it won't line up with the rest of the new houses on this row. [Unbeknownst to the applicant, there is no such law on the books saying anything about houses lining up or about lakeside views.] Applicant PAYS (presumably) for the application, and gets DENIED from the town for 'lack of hardship'.
Let me repeat -- there is no town law that states houses must be in a row or about lakeside vistas!! and he is not encroaching on the front yard setbacks. In fact, the CEO told me that they know it's not a law, but they like to go through the ZBA process in order to avoid angry neighbors.
I received this news 2 months after the 30day legal statute is up under article 78. When I told my boss that they denied this fictional variance, he shook his head and shrugged his shoulders with this 'what can we do?' expression.
So the question becomes -- what CAN we [I, it seems] do at this point.

[Jaxspra]

Issue the permit to build the deck??

[mendelman]

Do you have zoning jurisdiction over this case or is that the town's perview?

Can you actually do anything about this or would it just seem that you, an public employee, are advocating for one individual, when this appears to be a matter that should be handled by the property owner, the property owner's lawyer and the stupid town.

I say anonymously send the property owner a list of good land use attorneys.

Does that town government collectively share one brain?

[SW MI Planner]

Is the CEO your boss? Does the ZBA know that the variance they denied was fictional, or were they aware of what was going on?

[luckless pedestrian]

how do they write a decision without a cite from the bylaw/ordinance

wow

my advice is to slowly, baby step, get rid of this practice - one board member at a time, and fill your memo to file bin with cma's

isn't this fun?

[RandomPlanner]

Is the CEO your boss? Does the ZBA know that the variance they denied was fictional, or were they aware of what was going on?

The CEO is not my boss. I work for the County that this town resides in, but we're a home rule state, meaning they can overrule me.
I got the impression that the ZBA is aware of this fictional practice and that the Town stands together, but I'm not sure. The ZBA certainly stands united - it was a unanimus decision.
My boss is under the assumption that since we, at the county, sent out our recommendation to the land owner, then it's no longer our deal, which I can understand to some extent. Problem then becomes that I, admitedly, sometimes write in such legal mumbo-jumbo that if you don't read my recommendation well and understand the zoning, well, you could miss the point!
[ie: last paragraph, my version "Incidentally, while it is unknown how this specific application was handled, we at the County presume that no application fee was collected (or that such a fee would be refunded to the applicant), in light of the fact that no variance is legally required."
boss's rewrite: "The proposed deck would encroach neither on the minimum 30’ front/rear yard setback for the MR-12 zone nor on the 8’(single side)/20’ (both sides) side yard setback for that zone."]

I say anonymously send the property owner a list of good land use attorneys.

I can't say I hadn't considered it!

[cololi]

It seems to me that if there is no ordinance that they are requesting a variance from, then the decision does not mean anything and is not applicable. There are also some seperation of powers issues involved, as the Board of Adjustment does not have the power to legislate, they are quasi-judicial in nature and cannot create or alter ordinances or policies. Have you consulted your county attorney about the situation? Can you sue the Board of Adjustment in a civil court (I don't know if this is possible, just thinking).

[donk]

If it was me (as a landowner) i'd go in and demand my permit. if one was not issued, start building and let them take me into court.

Would this not be grounds for a class action suit to retrieve fraudulently collected application fees?

[SW MI Planner]

If it was me (as a landowner) i'd go in and demand my permit. if one was not issued, start building and let them take me into court.

Would this not be grounds for a class action suit to retrieve fraudulently collected application fees?

It doesn't sound like the property owner knows he was scammed though. I'd drop an anonymous note telling him he was screwed and that he should follow what Donk said.

[RandomPlanner]

I drove past the house the other day and it seems the powers that be have won the fight. The folks put up a deck already, but put it on the ground floor (maybe a patio now) instead of the second floor, and apparentely the town was fine with it.
It makes it easier for me, I suppose since I don't have to do anything - it seems everyone got (sortof) what they wanted here. (still makes me mad that the town is making up zoning laws off the top of their heads..., but at least I don't have to cause a war between the Town and my office (and/or within my office).