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Thread: City option on encroachment?

  1. #1
    Cyburbian Streck's avatar
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    City option on encroachment?

    A restaurant is apparently changing ownership and the financial institution has found on a new survery that the building was built 10 feet into a 15 foot side setback and in another wing of the building is 15 feet over the 15 foot rear setback. Both encroachments are into the common greenspace for the commercial area. The financial institution is asking for a Variance claiming that it was not the original owner and therefore cannot be blamed. What are the city's options?

    Do cities sometimes require off-setting mitigation as a condition for granting a Variance?

  2. #2
    Cyburbian KSharpe's avatar
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    We would try to get them to do a minor boundary change to increase the lot size so that the lot would be conforming.
    Do you want to pet my monkey?

  3. #3
    Quote Originally posted by Streck View post
    A restaurant is apparently changing ownership and the financial institution has found on a new survery that the building was built 10 feet into a 15 foot side setback and in another wing of the building is 15 feet over the 15 foot rear setback. Both encroachments are into the common greenspace for the commercial area. The financial institution is asking for a Variance claiming that it was not the original owner and therefore cannot be blamed. What are the city's options?

    Do cities sometimes require off-setting mitigation as a condition for granting a Variance?

    The City could require off-setting mitigation if it approves the variance. However, the first test is whether all of the required Findings can be made for a variance. The second question is whether there is anything to mitigate - what is on the adjacent property that is negatively impacted? I would advise the applicant research the code requirements in effect at the time the building was constructed. If the building was properly constructed and the zoning regulations changed sometime thereafter, then no variance would be necessary.

  4. #4
    Unfrozen Caveman Planner mendelman's avatar
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    The first question actually should be - was it conforming when built?

    If it was conforming when built and the setback requirements changed later, than it should be left as non-conforming and there should be no need for a variance simply because of change of ownership.

    If it was approved under the current setback requirements, but built in the wrong place (persumably, in opposition to the approved plans) then perhaps an argument could be made for requiring a variance (it's odd that the bank wants to get variances). But really the municipality is complicit in the non-conforming setbacks too, because there should be inspections on-site during construction (assuming there were). So, I would probably grant the variances, but suggest maybe some dense shrubs be installed (where possible) to buffer the building.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  5. #5
    Cyburbian Streck's avatar
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    Thanks for your responses. Somehow the building was originally built about five feet over the side setback. Later a deck was added right up to the side property line without a Building Permit.

    The Planning Commission accepted the Community Development Director's recommendation to approve the Variance with no penalty or off-setting mitigation, because "there was no harm," because the adjacent property was a large common designated green space with lake. He reported that the city attorney attorney concurred.

    The application was for a Variance to reduce the Side Yard from 15 feet to zero feet. The Planning Commission's recommended approval was to clarify that only the existing structure encroachments into the required Side Yard was to be granted - not reducing the entire 300 foot Side Yard to zero.

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