Building / construction Contractor placement error

[Streck]

Apparently a contractor located and built a house corner angled almost two feet into a required 10 foot Side Yard as determined by a property survey. The adjacent house meets Side Yard Setback at 10 feet.

I am a member of the City Planning Commission. The City staff has placed an Owner's Variance Approval Application on our Planning Commission Agenda requesting approval of the encroachment in order for the Owner to have a clear title.

I find no authority in our Zoning Ordinance for such approval after the fact.

The penalty in our Zoning Ordinance for such violation is $100 per day.

It seems unreasonable to require tear-down.

Would this now be considered a Non-conforming structure?

Should the Planning Commission recommend Approval of such Violation after the fact in order to give relief to the Owner to a cloud on his title?

The construction probably occurred within the last one to ten years, and I do not know if the contractor is still in business.

Is this a Planning Commission matter?

 

[Richmond Jake]

It's not a nonconforming structure if it was built after the adoption of your land development code. It's a self-imposed hardship. In my view, very hard to make the required findings to recommend in the affirmative.

 

[Streck]

Thanks for your quick response. The Planning Commission will need to address this Monday night if not postponed. So, I would appreciate other quick responses also.

Surely this is not a unique problem. What have some other jurisdictions done?

 

[Otis]

The specifics of your local code may affect all this, but here is my sense based on typical zoning ordinances. The intrusion into the required setback creates an illegal situation, not a lawful non-conforming situation, provided, as Richmond Jake says, it was built after the setback requirement went into effect. I also agree that the intrusion ordinarily would not meet the requirements for a variance since the hardship is self-imposed. To allow otherwise would let builders do whatever they want, including knowingly violate the code, then come in and say, "Whoops, I need a variance. My mistake. So sorry."

We have a builder in my jurisdiction who habitually violates the setback requirements. I one case he had to tear 2.5 feet of width off of a house he had just built (he knew what he was doing and went ahead anyway). More recently he had to work out a property line adjustment with an adjacent owner in order to correct a side yard intrusion. He ended up removing part of the neighbor's deck (so that the property line adjustment would not create a non-conformity on that lot) and paying the neighbor a substantial sum.

We now do footing inspections to ensure that setbacks are met. In one case the owner was outraged that we went out to inspect since his surveyor said the setbacks were OK. We measured and came up with a violation. More outrage:"Are you saying my surveyor was wrong, and you're right with just your tape measure and string line?" "Yes." Surveyor re-measured and agreed with us.

In your case I would ask whether the neighbor has lot area to give that would result in both owners being in compliance. Lot line adjustments can correct a lot of problems. Sometimes you end up with crazy lot lines, but you also end up with lawful buildings.

 

[Streck]

Thanks for your quick and logical response.

Maybe the Property Line could be adjusted. There is a 1.45 foot encroachment into a required 10 foot Side Yard. Both houses are angled slightly at different angles to the property line, so it is not readily apparent if both would have the legal Setback required based on drawings provided. A resetting of the Property Line could be within an inch or two of the legal requirements.

On second thought, we should not impose any burden on the next door neighbor by moving the common property Line (and causing damage and repair to an existing fence and landscaping).

 

[MD Planner]

Agree with what's already been said. That's why the contractor (hopefully has insurance).

 

[AG74683]

The structure cannot be "non-conforming" if it was constructed illegally in the first place.

There is an NC court case on this issue, but I doubt it carries any weight in your jurisdiction.

 

[mendelman]

Though, let's take a look at the actual situation Streck describes.

It's a house that was built 20% into the minimum required 10 foot side yard setback at a time 1 to 10 years ago by a contractor that may or may not be in business any more.

That is a rather murky scenario. Did the municipality or permitting agency approve the placement in the field and subsequently give a Certificate of Occupancy for the house? Was the current municipality in existence when the house was built? What were the regulations and inspection processes at the time of construction? Is the current owner the owner when the house was built? Can the contractor that built the house even be found to be held accountable? Is anyone actually 'complaining' about the 'violation'. Is the substandard setback evident if one doesn't know the specifics?

If the house was built in violation of an approved permit and setback requirements, it typically can't be considered 'existing nonconforming' because typically that status is reserved for buildings/structures that were compliant/legally established when built, but due to code changes and/or rezoning were no longer compliant.

So, after-the-fact variance requests happen all the time and can be tricky. My experience is that it usually happens with sheds and fences as they can go up quickly and the people installing/constructing them are often not the most rigorous construction managers. Our code doesn't distinguish between why some requests a variance. It is a right that any property has to try to get relief. As to whether a specific variance will be granted depends on the particulars of the individual request.

For your situation, unless your code explicitly says a variance can't be requested in this, you need to review it on the merits of the situation and any review criteria you have codified or as policy. I would think there it is reasonable to favor the variance if this has been a long standing condition, doesn't alter the character of the immediate vicinity and is not the making of the current owner.

Plus, in Ohio and Illinois variances don't set precedent, so just because a variance is approved here doesn't mean a similar or exact same variance has to be approved at another site. This is based on the premise that every property is unique and therefore every variance decision is unique.

I hope the above helps. Good luck.

 

[Otis]

Thanks for your quick and logical response.

Maybe the Property Line could be adjusted. There is a 1.45 foot encroachment into a required 10 foot Side Yard. Both houses are angled slightly at different angles to the property line, so it is not readily apparent if both would have the legal Setback required based on drawings provided. A resetting of the Property Line could be within an inch or two of the legal requirements.

On second thought, we should not impose any burden on the next door neighbor by moving the common property Line (and causing damage and repair to an existing fence and landscaping).

You wouldn't be imposing a burden on the neighbor. Instead you would be informing the owner of the problem property that one way to solve the problem is to work out a property line adjustment with the neighbor. The neighbor does not have to agree to allow the adjustment. If they are unable to work out an agreement then some other solution must be found. "Working out an agreement" usually involves money flowing from the party with the problem to the party who can help solve the problem. It's purely voluntary.

 

[Streck]

Our city attorney who attended our Planning Commission meeting tonight said we could approve a Variance after the fact, even though it involved a self imposed violation.

It came to light that both adjacent homes had their garages back to back, so privacy was not an issue

Also, the Variance solved a potential cloud on the property, and the expense to the Owner to remove it.

Everyone was relieved.

Thank you for your previous comments and clarifications.

 

[MD Planner]

And it will probably be fine because no one will ever say anything. But if they did I don't think your attorney has a leg to stand on. But sometimes that's just the way it goes.

 

[AG74683]

And it will probably be fine because no one will ever say anything. But if they did I don't think your attorney has a leg to stand on. But sometimes that's just the way it goes.

Well technically he was correct (the best kind of correct). The Board can approve of anything they want. Whether the COURT approves it is a whole different matter.

Realistically, variances all come down to one thing anyways, "Who is injured". If the answer is no one, then a variance will almost always be approved even if it doesn't meet the standards.

 

[JLyon]

This seems like a Board of Zoning Adjustment case that your Planning Commission or City Council could hear, depending on how your ordinance is setup.
Had a similar case where builder encroach into front setback by 3 ft and BZA route was taken by the builder and property owners