• Ongoing coronavirus / COVID-19 discussion: how is the pandemic affecting your community, workplace, and wellness? 🦠

    Working from home? So are we. Come join us! Cyburbia is a friendly big tent, where we share our experiences and thoughts about urban planning practice, planning adjacent topics, and whatever else comes to mind. No ads, no spam, no social distancing.

Mistakes

Otis

Cyburbian
Messages
5,169
Points
29
I am trying to come up with a general policy to be applied when a planner makes a mistake and approves a building that, for instance, does not meet setbacks. Do we make the owners come into compliance? Regardless of cost? Make them apply for a variance, and then come into compliance if the PC turns them down? What do others do? Any suggestions?
 

Jeff

Cyburbian
Messages
4,161
Points
27
When you say "regardless of cost" does that mean that you are paying to bring the building up to code?

No, you can't go back and change your mind after you have approved something.

You may be able to get them on the "as-built" plans though?
 

mike gurnee

Cyburbian
Messages
3,066
Points
31
I have seen case law in some states that require the structure to conform. (Was it New York City where a builder had to remove 10 floors on a building?) I would certainly not go that far in the small towns I have worked. It has happened with me, and I have "let it ride". In two instances I can remember, the errors were not that significant. Staff error is no grounds for a variance. A note to the file can often suffice so that the error is noted and not compounded later...plus a reprimand to the staff.
 

Repo Man

Cyburbian
Messages
2,549
Points
25
I think that you would run into problems legally if say you approved a building and it was constructed at a 20 foot setback and the required setback is 25, then required them to move the building. Plus it would be a PR nightmare. Imagine the newspaper articles: "City approves building, then requires applicant to move building because of staff error."

I think that a variance would be the way to clean most major mistakes up, even though it wouldn't really meet the legal standard of a hardship.

If the project hasn't started or if the amount of work completed was minor, then you could probably get them to correct the changes.

In some instances, returning to the approval body (Plan Commission, etc) with as built plans (as Mike D suggested) with a staff recommendation for an "after the fact" approval of the changes. This would be another way to bring everything into compliance, provided the mistake did not result in a non-conforming structure. This would probably only be allowed for things that the Plan Commission has authority on, such as parking lot layout, landscape installation, building materials, etc.
 

donk

Cyburbian
Messages
6,970
Points
30
Our act allows for minor adjustments, by staff, where errors have been made in good faith. See Section 34(8).

Where staff has made an error, it is noted in the building permit file and we worry about fixing it latter, if and or when it ever becomes a problem. I know of 2, neither my doing, that we've done this way.
 

Cardinal

Cyburbian
Messages
10,080
Points
34
How about this one. The code requires a thirty-foot setback. The plans submitted have a notation indicating a thirty foot setback. The foundation is poured and it is discovered to be within twenty feet of the right-of-way. The designer assumed (where do these idiots get this idea?) that the setback was from the back of the curb instead of the right-of-way. When you check the plans, the notation says the setback is thirty feet, but if you scale it off, it is only twenty. What would you do?
 

SlaveToTheGrind

Cyburbian
Messages
1,492
Points
27
Previous place of employment had a similar case. Staff (not me) signed off a building permit for a house on a 10 or 20 acre parcel. The site plan did not show the entire property. As the steel frame of the house (McMansion) was erected, it violated the rigdeline ordinance which prohibited a structure from breaking the ridgeline when viewed from a public r-o-w. The jursidiction put a stop work order on the project, owner sued, jurisdiction lost.
 

el Guapo

Capitalist
Messages
5,995
Points
31
The hard ass method.

I'm away from current planning, but I would tell my board a mistake was made, place a letter in the file of the specific site, and a copy of the letter in the employee's file. 3 such letters or 10K in remediation costs, which ever is reached first, and its to the streets for you my error prone friend.

I believe that if the public interest is best served by correcting the violation, then it is the public's duty to pick up the costs of these corrections. The applicant should NEVER bear the burden of a professional staff's mistakes.

After a few such ten thousand dollar mistakes the department director should be replaced.
 

Queen B

Cyburbian
Messages
3,178
Points
25
Boy you guys are tough!

I don't know of a place where I have worked that hasn't had a staff that is still trying to learn the regulations. So in that, mistakes are inevitable. Even if you read the entire regulation book you can not possibly understand it until you work with it a while. Then you may interpret it differently then the next party.

Everyday we do the best we can and if we mess up, we try to make note of it in a file and go on. Luckily most of the building is in the rural area and it doesn't really matter a whole lot anyway.

Overall, we attempt to bring some semblance of order to the county which helps in the big picture.
 

jordanb

Cyburbian
Messages
3,232
Points
25
I was under the understanding that it was the developer's responsibility to make a plan that fits the code, and the code enforcemnet people were just there to make sure the developer dosen't screw up (or try to get away with something). It'd be like if I cheated on my taxes, or even just made a mistake, and the IRS didn't catch it, that dosen't make me not liable for the mistake. They could figure out five years from now that I owed more and I'd have to pony up the money then.
 

ambmason

Cyburbian
Messages
46
Points
2
We seem to make such minor mistakes on a regular basis- myself included. The majority of the time it is caught before any construction has started and we send the applicant a letter apologizing for the mistake and explaining what should have been done and that if they can't change the project they can return to the office for a refund of the fee. This is usually on setbacks for storage buildings so we are not talking about having to move a major building and it isn't usually any big deal.

Our zoning code, however, actually states, "Any certificate of zoning compliance or special zoning permit issued in error shall not confer any rights or priviliges to the applicant to proceed with construction. Any permit issued by the Commission based upon incorrect or false information supplied by the applicant may be revoked by the Commission."
 

donk

Cyburbian
Messages
6,970
Points
30
One of the other City's recently had an appeal that answers cardinal's question. We don't have to do a damn thing.
The gist of the appeal board ruling is:

Where a setback/dimension is dimensioned and does not match the scaled dimension the developer has clearly indicated his intention to locate the building at the indicated setback/dimension.

We go through this frequently so I always double check dimensioned drawings, before approving them as conforming to the By-law/Regulation. I will note that the scale of the drawing does not match the requirments, but the dimensions do. As such, the building may only be placed in accordance with the dimensions that conform to the By-law. It is easier to move something on paper once it is built.

I guess this is where occupancy permits come in handy?

jordanb, great argument (no sarcasm intended), but unfortunately it would almost never happen that way.
 

SkeLeton

Cyburbian
Messages
4,853
Points
26
At least developers of trailer parks can't make much of a fuss if there are any mistakes on setbacks and the like. Just a minor push of the trailer and no problem at all! :)
 

donk

Cyburbian
Messages
6,970
Points
30
Skel quipped
At least developers of trailer parks can't make much of a fuss if there are any mistakes on setbacks and the like. Just a minor push of the trailer and no problem at all!

If only it were so easy......

Trailer parks their setbacks and other developmentrequirements are one of the banes of my existence.
 

Repo Man

Cyburbian
Messages
2,549
Points
25
jordanb said:
I was under the understanding that it was the developer's responsibility to make a plan that fits the code, and the code enforcemnet people were just there to make sure the developer dosen't screw up (or try to get away with something). It'd be like if I cheated on my taxes, or even just made a mistake, and the IRS didn't catch it, that dosen't make me not liable for the mistake. They could figure out five years from now that I owed more and I'd have to pony up the money then.

The problem with that is if a developer proposes a plan, recieves all necessary approvals and is issued permits by the City, it is reasonable for them to assume they can proceed with construction as approved? I would think so. The code people are there to review the plan to make sure it meets code, if the governing body says everything is ok, the responsibility is on them not the developer if there is a mistake.
 

SGB

Cyburbian
Messages
3,388
Points
26
Queen B said:
Even if you read the entire regulation book you can not possibly understand it until you work with it a while. Then you may interpret it differently then the next party.

When I did current planning, I would never answer a code question I was uncertain about without consulting the local law text.

To ensure consistancy of interpretations, I created a notebook with prior zoning officer and Board of Appeals code interpretations, sorted by subject matter. This made a very handy reference on multiple occasions. New interpretations by the ZO or the BoA were added to the binder as appropriate for future reference by myself and my successor(s).

If there was a previous ZO interpretation I totally disagreed with, I would make my own and advise the applicant that they had the right to appeal. And sometimes, in appeals of interpretation before the BoA, I was the windshield; sometimes I was the bug.
 

OfficialPlanner

Cyburbian
Messages
942
Points
24
There was this one major error made by a planner in my previous job. He was about to sign off on a agreement which would of allowed 100 homes. Then one of the more vocal NIMBYs read our Official Plan and realized the land had a "natural greenspace" overlay. Basically making the land undevelopable. The developer threanted to sue as many previous discussions with staff ensured them the right to build, just the siteplan and number of homes were in question.

The city was taken to the OMB (Planning Court in Ontario) where they did a 180 degree flip-flop and supported the development to cover their ass from a potential lawsuit. The prayers of that poor planner must of been answered. In the end the developer got the right to build whatever they wanted and city politicians were able to spin the issue and deflect blame on the OMB as the higher authority, which ordered the development to be approved.

Everyone's now happy except the NIMBYs which got a 200 home development instead of the original 100 :-c

It still amazes me how that planner made such a large error when this application was active for over a year. Even his manager singed off on previous reports for this development. I guess no one really reads staff reports anyway.
 

Gedunker

Moderating
Staff member
Moderator
Messages
11,552
Points
42
I've been doing at least some current planning for 15 years and mistakes happen. I made this one recently:

A commercial district permits a zero lot line, but if not built at zero, it must be at least 5'-0". The plan showed a zero lot line and all other dimensional/use requirements were met. I signed the permit -- construction commenced.

Filing the paperwork somewhat later, something struck me as wrong and I re-checked the Code: As a "street side yard", a 5'-0" setback was required. The foundation was already poured at zero lot line.

I called the developer and issued a Stop Work Order, fully expecting (and deserving) a major butt chewing. Fortunately, he was cool about it and I had him file for a variance and we waived the usual fee.

I was humble about the mistake at the BZA hearing, expecting them to take a bite of buttocks out of me, but they understood and had very little discussion about it.

The development has been successful.

As to blanket waivers of error, I just don't think they'll fly.
 

Jeff

Cyburbian
Messages
4,161
Points
27
jordanb said:
I was under the understanding that it was the developer's responsibility to make a plan that fits the code, and the code enforcemnet people were just there to make sure the developer dosen't screw up (or try to get away with something).

Contrary to what most believe, zoning officer, code enforcement officers, etc are there to provide a resource to the developer/applicant. It is their job to assist the applicant with providing a plan which meets the health, safety, and welfare standards of the municipality, not to be a constant pain in the ass.

If a town has a 30 ft front yard requirement, and the plan shows 20' and the town missed it, and the applicant builds to 20' whos fault is it.? The applicant, who may have never stepped foot in this township? Or the township who's responsibility it is to know their ordinances from cover to cover?

I'm sorry, if you don't know YOUR ordinances cover to cover how do you expect an outsider to?
 

Cardinal

Cyburbian
Messages
10,080
Points
34
Mike D. said:
Contrary to what most believe, zoning officer, code enforcement officers, etc are there to provide a resource to the developer/applicant. It is their job to assist the applicant with providing a plan which meets the health, safety, and welfare standards of the municipality, not to be a constant pain in the ass.

If a town has a 30 ft front yard requirement, and the plan shows 20' and the town missed it, and the applicant builds to 20' whos fault is it.? The applicant, who may have never stepped foot in this township? Or the township who's responsibility it is to know their ordinances from cover to cover?

I'm sorry, if you don't know YOUR ordinances cover to cover how do you expect an outsider to?

This is easy enough when the plan is drawn and annotated consistently. But in this (somewhat hypothetical) case, the plan text indicated a 30 foot setback. When you review plans, do you really scale off every dimension? I would guess not, particularly in complex plans. I would agree with Donk. The labeling clearly signaled the intent to set the building back thirty feet, even if the scale was off.

As an aside, I dislike the thirty-foot setback and would like to see it reduced in many parts of the city.
 

SW MI Planner

Cyburbian
Messages
3,195
Points
27
Cardinal said:
How about this one. The code requires a thirty-foot setback. The plans submitted have a notation indicating a thirty foot setback. The foundation is poured and it is discovered to be within twenty feet of the right-of-way. The designer assumed (where do these idiots get this idea?) that the setback was from the back of the curb instead of the right-of-way. When you check the plans, the notation says the setback is thirty feet, but if you scale it off, it is only twenty. What would you do?

This same thing happened here last summer. The plans indicated a 30 ft setback and when they poured the foundation they went from the curb not the ROW. We told them they had to apply for a variance, and also get permission from the neighborhood association. I jawboned them about how difficult it was to get a variance, blah blah blah. They decided to rip it out and start over.

Thanks heavens, since our ZBA is notoriously leniant and would probaby have approved a variance.
 

pandersen

Cyburbian
Messages
243
Points
9
If our folks miss something on the plans, we have instructions to use our own money to purchase a 5 gallon tank of gasoline and "douse" the problem until such time as a solution "reveals" itself. Of course we are expected to to this outside of regular office hours.

Alternatively, we provide the opportunity for the development proponent to replat the entire development until everything works reeeeeeeeel goooooood!
 

Dan

Dear Leader
Staff member
Moderator
Messages
18,811
Points
69
A couple of years ago, I approved a building permit for a spec house that was 5' from the side property line, when the underlying zoning required a minimum 7.5' setback. I was normally a stickler about setbacks, even checking to make sure that the plans show them properly measured perpendicular to the PL, and double-checking the plans with my scale to make sure no funny business was going on, but this one slid right past me.

The foundation was poured, and I got a call from the builder. "We had the foundation survey performed, and oops." I was lucky with that one; I just had the developer move the property line with an administrative boundary line adjustment, and regrade the subject lots so the bottom of the side yard swale followed the new property line. If there wasn't enough room, though ... well, builder or staff error isn't considered a criteria for hardship when considering a variance, and they'd likely have to break out the jackhammers.

Still bothers me to this day. I wouldn't expect a surgeon to make an "oops" if they're operating on me, or an airline pilot to have a brief lapse in judgement when landing a 727 on BNIA's short runway.
 
Top