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Thread: Who is responsible for the setback?

  1. #1
    Cyburbian inzane's avatar
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    Jun 2003
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    kansas
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    Who is responsible for the setback?

    I am dealing with a case where a home was built to code in the 60’s with an open porch that was built over the front yard setback (which is allowed by code if it is not enclosed). Some time in the 80’s the owner enclosed the porch without permits, creating a violation. We (the city) never caught it. Now, a new owner (the 3rd owner after the porch was enclosed) was notified by their insurance company that they would no longer be insured because the porch is in bad condition and it was built poorly and illegally.

    I was approached because the new owner has applied for a variance to rebuild the enclosed porch over the setback and bring them into compliance. The issue is that they are the only home in the neighborhood that did this, the porch does not absolutely have to be enclosed and if they build it correctly the foundation would interfere with an underground utility.

    My question is who is theoretically responsible for the screw up. The city, the past owner, the new owner’s title company or is there somebody else. I know this may be a case of buyer beware, but, I feel so bad that they people are getting screwed. I think they should at least know who is doing the screwing.
    “I injured a rock… Hospitalized a brick… I’m so bad I make medicine Sick!!!!”
    Muhammad Ali

  2. #2
    Cyburbian ursus's avatar
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    Dec 2008
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    Northern Utah
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    I don't think you can reasonably hold anyone but the owner from the 80's who enclosed it (creating the problem) without permits. Insurance companies are getting pickier along with the mortgage underwriters.
    "...I would never try to tick Hink off. He kinda intimidates me. He's quite butch, you know." - Maister

  3. #3
    Cyburbian stroskey's avatar
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    Dec 2008
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    the delta
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    I can tell you the city is not the responsible party. Breaking the law/code and getting away with it does not mean the city endorses or condones the action.

    Your Board should not approve this variance. In fact, the state of MN just issued a ruling that local governments can no longer issue any variances unless the property is completely unusable without it.

    In an ideal world your code would say uncovered decks and patios can go over the setback but anything with a roof must conform to the setbacks. That makes it easy. A roof is easy to identify and walls can sometimes be a grey area.
    I burned down the church to atone for my transgressions.

  4. #4
    Cyburbian Raf's avatar
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    Feb 2007
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    As far south of SoCal as I Will Go
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    undoubtly the person at fault is the original builder. The other parties at fault are the buyers of the home for not doing their due diligence in regards to what was permitted/not permitted.

    You should not play the blame game here. Either a) get it permitted to meet today's code or b) red-tag, tear down.

    By giving them a variance, you are setting a precedence to continue to build without proper permits, offering a mi culpa, and giving the next property owner the ability to say "but you did it for them" and conversely setting yourself and your city to be on the next eposide of "holmes on homes"
    follow me on the twitter @rcplans

  5. #5
    Corn Burning Fool giff57's avatar
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    Jul 1998
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    On the Mother River
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    A previous owner's stupidity is not a hardship that would require a variance. I think that the insurance company's evaluation is proof that the enclosed porch isn't needed, obviously it can't be all that usable if they won't insure it.


    Edit: I love Holmes on Homes.
    “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall”
    Jean-Jacques Rousseau

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