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Thread: Quick variance question

  1. #1
    Cyburbian
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    Quick variance question

    Time to tackle my first variance case, and this one is a little less than cut and dry.

    Folks have a place out in one of our "campground" districts. They moved their old decaying camper out (tons of electrical problems, falling apart, etc), and purchased a newer camper to replace it.

    Problem is, the new camper is 4 inches too wide to fit into the old campers spot. We allow covers and room additions to be added onto a camper so long as they are not attached. New camper will not fit under the canopy without moving the support posts 4 inches. Issue is, they do not meet setbacks, and must meet them in order to get a Zoning and Building Permit.

    Now I know this issue was caused by the applicant, and should be immediately turned away for a variance, but here is where it becomes an sticky. Normally we force people to relocate their entire building in order to make this work. These people cannot move theirs, because the neighboring home has encroached their property line and is over it by about 5 feet. If they were to move their building, they'd basically be attached to the neighbors. Now to me, this was NOT caused by the homeowners, and in some way could be associated as a hardship because it predated their purchase of the property.

    I've recommended they get a survey of the property that shows the encroachment of the neighbors to prove their inability to move their room addition to accommodate the new trailer, but I am worried that there just is not a case for them to apply for the variance. I don't want to look foolish for presenting a variance case that has no business even being presented, but I really do not know where this falls.

    Keep in mind that in this campground district, we have made people tear down buildings to accommodate our standards. I am worried that allowing a variance for this might open a can of worms bigger than I can handle.

  2. #2
    Cyburbian mike gurnee's avatar
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    Proceed with the variance. The neighbor caused the hardship, not the applicant. Pass on the survey requirement. A delapidated structure is replaced with one in standard condition (taxes go up). Get it over with. In my last 2 towns we allow administrative variances for inches.

  3. #3
    Cyburbian btrage's avatar
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    So is your question whether or not you should require a variance or allow them to place the building knowing it's 4 inches too wide??
    "I'm very important. I have many leather-bound books and my apartment smells of rich mahogany"

  4. #4
    Cyburbian
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    Quote Originally posted by btrage View post
    So is your question whether or not you should require a variance or allow them to place the building knowing it's 4 inches too wide??
    Well to refine my question, could the encroachment of a neighbors building over a property line be defined as a hardship?

  5. #5
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by AG74683 View post
    Well to refine my question, could the encroachment of a neighbors building over a property line be defined as a hardship?
    Likely, but in these situations I typically just say that it is compliant...4 inches is too small to worry about and in many cases is imperceptible in the field. I usually chalk it up to a reasonable margin of error.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  6. #6
    moderator in moderation Suburb Repairman's avatar
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    Quote Originally posted by AG74683 View post
    Well to refine my question, could the encroachment of a neighbors building over a property line be defined as a hardship?
    I don't totally understand what this building or shed is that the camper goes into--is it like a carport? Regardless, here's my take on the situation:

    In my opinion, the neighbor encroachment is something that is beyond the applicant's reasonable control--I'm sure that encroachment has been there so long that it is virtually impossible to address realistically through any civil process. In the circumstance you described, I'd be looking for a reason to grant this given how honestly trivial it is. In fact, this would be eligible for an administrative exception in my fair city given how small the change is.

    Just an observation when it comes to variances... a lot of planners, particularly new ones, get hung up on the legalism of the variance criteria. They also zero in on the term "hardship," but most cities have an important word before that: "unnecessary" hardship. I liken it to failing to see the forest through the trees. You can interpret the criteria to deny vitually any variance request, but that doesn't mean you should.

    I suggest you ask yourself two questions when it comes to whether a variance request represents an "unnecessary hardship":
    1. Is there a fair and substantial relationship between the public purposes of the ordinance provision and the specific application of that provision to the property? If no, then ask yourself if the proposed request is a reasonable one. If yes, then you can justify that an unnecessary hardship is present and the criterion is met.
    2. Has the applicant established that the ordinance will prevent any reasonable use of the land? If yes, then you can justify that an unnecessary hardship is present and the criterion is met.

    If your variance case meets either of those two questions, I say run with it. Based on your description, I think this request easily satisfies the first question. A lot of planners get stuck only using that second question, which has a tremendously high threshold for an applicant to scale. We are not lawyers--we don't need to run around trying to figure out what the definition of "is" is. Trust your gut--you know a legit variance request when you see it.

    EDIT: and if this is being processed as a variance, you should go ahead and require the survey. That is the best way to both document the need for the variance and determine the exact amount of variance required. One thing about variances is that you need to treat applicants the same--would you require a survey if it was a house encroaching three feet into the setback? I'd say yes...

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  7. #7
    Cyburbian
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    Quote Originally posted by mendelman View post
    Likely, but in these situations I typically just say that it is compliant...4 inches is too small to worry about and in many cases is imperceptible in the field. I usually chalk it up to a reasonable margin of error.
    Normally I would agree. In this specific area in the county, those 4 inches will cause an insane about of backlash if we simply let it happen.

    I suppose without knowing the situation, trying to get a variance for 4 inches seems frivolous and a waste of my time, but honestly here, it needs to be done. If this shows you how crazy this situation is, I've been told that by requiring the survey that it may be the only way for them to get this variance...

    You can think of the cover as basically a house that only has half of it enclosed, the other half is just the roof with some posts.

  8. #8
    Cyburbian
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    This is exactly what's wrong with our profession.

    Have them mark that the new trailer is the same size and move along to the next thing.

  9. #9
    Cyburbian btrage's avatar
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    Quote Originally posted by paiste13 View post
    This is exactly what's wrong with our profession.

    Have them mark that the new trailer is the same size and move along to the next thing.
    Exactly. Well said. Bravo!
    "I'm very important. I have many leather-bound books and my apartment smells of rich mahogany"

  10. #10
    Cyburbian dw914er's avatar
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    Quote Originally posted by AG74683 View post
    Normally I would agree. In this specific area in the county, those 4 inches will cause an insane about of backlash if we simply let it happen.
    So, you're saying that every inch counts?

    Quote Originally posted by Suburb Repairman View post
    I don't totally understand what this building or shed is that the camper goes into--is it like a carport? Regardless, here's my take on the situation:

    If your variance case meets either of those two questions, I say run with it. Based on your description, I think this request easily satisfies the first question. A lot of planners get stuck only using that second question, which has a tremendously high threshold for an applicant to scale. We are not lawyers--we don't need to run around trying to figure out what the definition of "is" is. Trust your gut--you know a legit variance request when you see it.

    EDIT: and if this is being processed as a variance, you should go ahead and require the survey. That is the best way to both document the need for the variance and determine the exact amount of variance required. One thing about variances is that you need to treat applicants the same--would you require a survey if it was a house encroaching three feet into the setback? I'd say yes...
    I'm having a hard time visualizing the scenario as well. I would agree that some sort of structural encroachment from a neighboring property would qualify as a hardship, so you could probably move forward with the variance. I assume that because this is a trailer/camper, these are built to the manufacture’s general standards rather than to the owner's specifications. In that case, four inches of variation doesn’t seem like a blatant hardship that the applicant caused.
    And that concludes staff’s presentation...

  11. #11
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by dw914er View post
    I'm having a hard time visualizing the scenario as well.
    Something like this, I presume.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  12. #12
    Cyburbian
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    Quote Originally posted by paiste13 View post
    This is exactly what's wrong with our profession.

    Have them mark that the new trailer is the same size and move along to the next thing.
    The way I read this is that there is a physical roof structure that the camper goes under. Because the camper is four inches too wide, it can't fit under the structure as it is presently built. Therefore the structure needs to be enlarged, and the enlargement is what is causing the requirement for a variance.

  13. #13
    Cyburbian dvdneal's avatar
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    My first thought is of course sucks to be the one stuck with this.
    My second thought, not knowing the sitution, is how tight are these lots that 4" is a problem?
    I like the other answers of just writing in the "correct" number or can they rebuild the cover with the "correct" number.
    I'm fortunate to have a 10% rule on my setbacks that gives me some flexibility for things like this, but it sound like people might not be happy if you magically made it work.
    I hate to justify variances, but could you right something like:
    The lots in the area are under sized for modern campers, the neighbor's buildings doesn't allow room to relocate the cover, and it's only 4 damn inches.
    The big question for me is, has anybody been denied an oversized camper and would others be allowed? If I decide to move in with my oversized camper, can I also get a variance?
    When in doubt you can always change the code instead of getting a variance.
    I don't pretend to understand Brannigan's Law. I merely enforce it.

  14. #14
    Cyburbian Kingmak's avatar
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    This is what I say when its a no brainer.

    "While strict application of the [development code] does not deprive the applicant of a substantial property right, it does deprive the applicant of a REASONABLE addition/modification to their home/property."

    But we have the 10% administrative variance, so this would be a quick stroke of the pen.
    "The first rule of sustainability is to align with natural forces, or at least not try to defy them." - Paul Hawken

  15. #15
    Cyburbian
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    Quote Originally posted by hipp5 View post
    The way I read this is that there is a physical roof structure that the camper goes under. Because the camper is four inches too wide, it can't fit under the structure as it is presently built. Therefore the structure needs to be enlarged, and the enlargement is what is causing the requirement for a variance.
    Exactly.

    paiste13, I agree, but my hands are tied. I have exhausted every option to get this fixed.

    Essentially what they bought was a FEMA trailer, which is a few inches wider than a standard RV trailer.

    dvdneal, these lots are tight. Theirs is 0.05 acres, which amazingly is the standard size out there.

  16. #16
    Cyburbian Masswich's avatar
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    Boy, all I can say is I don't miss having to write recommendations on variances...

  17. #17
    Cyburbian
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    Quote Originally posted by Masswich View post
    Boy, all I can say is I don't miss having to write recommendations on variances...

    Well this brings me to another question. I was under the impression that I do not actually give a recommendation on a variance or anything quasi-judicial. I thought that my role is to simply state the facts of the case, and it is up to the applicant to prove why they need a variance or conditional use.

    My education unfortunately left out much of the day to day administrative work, and I am struggling somewhat with deciphering the exact procedures for these quasi-judicial cases. Does anyone have a primer on the correct procedure for these? Perhaps something you give to incoming planning board members? I know the basics but I want to ensure that I do things by the book, and put a system in place here to ensure that any future planner does the same.

  18. #18
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by AG74683 View post
    Well this brings me to another question. I was under the impression that I do not actually give a recommendation on a variance or anything quasi-judicial. I thought that my role is to simply state the facts of the case, and it is up to the applicant to prove why they need a variance or conditional use.

    My education unfortunately left out much of the day to day administrative work, and I am struggling somewhat with deciphering the exact procedures for these quasi-judicial cases. Does anyone have a primer on the correct procedure for these? Perhaps something you give to incoming planning board members? I know the basics but I want to ensure that I do things by the book, and put a system in place here to ensure that any future planner does the same.
    Depends on your municipality's SOPs. In my years with several different munis I have given specific recommendations and not given them. I prefer not to give recommendations for zoning variances because some standards for review are typically tough to overcome and affirmative staff recommendations can easily be seen as serving the applicant. For variances I prefer letting the Board make the decision and I get to simply be the objective professional serving everyone and no one.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  19. #19
    Cyburbian Masswich's avatar
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    Yep, the approach to a variance depends on the culture of your office and Boards. I am used to making a recommendation after getting the arguments of the applicant (who also repeats them to the Board.) But that's not the way it works everywhere.

  20. #20
    NIMBY asshatterer Plus Richmond Jake's avatar
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    I have the philosophy that it is the role of a professional planner to make recommendations supported by data, analysis, and findings of fact, including the full range of applications from a variance to comp plan amendment.

    It's the job you are educated, trained, and paid to perform. Yes, some to this falls on deaf ears.

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