The Board of Zoning Appeals met 12/18/2023. The variance request I was most interested in watching was the request from a homeowner on Clara Street whose contractor had built his new garage 4 feet away from the house rather than the required minimum of 5 feet from the principal building. Thankfully Christmas came early for the homeowner and the contractor, and the Board of Zoning Appeals voted to grant the variance allowing the garage to remain in ins present location/configuration. In my opinion, approval of the request was not at all a certainty and the vote could easily have gone the other way which would have been quite costly to the contractor and potentially the homeowner also if he ended up having to take his contractor to court.
I’ve prepared a transcript of the discussion for download:
The City Zoning Ordinance requires accessory buildings to be at least 5 feet from the house. Per the property owner, their contractor applied for a building permit to rebuild their garage. That application included the plans for the structure. The permit was approved and staff did not mention that the plans did not conform to city code. After the structure was roughed in, the city conducted an on-site inspection, and it was only at this point that city staff informed the owner that the garage was 1 foot too close to the garage.
City staff had a somewhat different perspective on what happened. Inspections Supervisor Kurt Craanan indicated in his memo to the board that the plans submitted to the city during the permitting process showed that there was going to be a distance of 43 feet between the garage and the main building. “The site plan that was submitted was handwritten and not to scale. The plan shows the garage close to the house, but no indication of the distance from the principal building.” Additionally, a rough-in inspection was called in by the contractor, at which point the issue was noticed, but no stake out inspection was called in by the contractor although that is normal procedure.
Nathan the homeowner and Jason the contractor both spoke on the variance request. Nathan the homeowner reiterated that they applied for a permit and from his perspective everything was signed off on and good to go. The issue was only discovered after the building was built. They were, however, fire rating the entire garage the way they would have to if it were an attached garage. “[U]ltimately, it was signed off on, and they granted it. […] now if it is not granted variance, I’ll have to tear it down, move it a foot back, and then start over, and it’s just gonna cost a lot of money.”
Jason the contractor said that WE Energies had an easement in the back yard, so he had made sure that he was compliant with that easement and also with setback requirements from the property lines. “[W]hen I was in there, I asked the inspector over and over to make sure (because I knew it was going to be a new big structure back there) if everything looked good and whatever. And then I was granted the permit at that time.”
There did not seem to be a clear answer as to what number had been listed on the permit application as to how far the distance was between the principal dwelling and the garage. The diagram (which was not included in the public agenda packet) was not to scale, and Supervisor Craanen thought the number written in was 42 feet. Board chairman Paul McCann commented that it could have been 4.2 feet. Nathan had not filled out the application so could not say what the number was, and Jason, who had filled out the application, said he couldn’t remember what number he put. [Meanwhile I was mentally berating them for not latching onto that possibility and pushing it for all it was worth since if the number was 4.2 feet it was the one somewhat solid piece of evidence that the inspections department was not blameless in this situation. Because, it honestly sounded like the contractor had messed up by not calling in some inspections that he ought to have…]
Supervisor Craanen told the board that there would normally be an onsite inspection of where the concrete would be laid out and also whether the rebar met building code requirements and the concrete slab was correct. [It wasn’t clear to me if this all happened in one inspection or two inspections.] This is when the problem with the distance between the garage and the house would have been caught. Chairman McCann viewed the lack of earlier inspections as a mistake by the contractor. The contractor admittedly did not call for a stakeout inspection or a foundation inspection figuring “I don’t want to waste the inspectors time.” He thought everything could more easily be handled during the rough in inspection. [I just about died when I heard him say that. It’s one thing for a homeowner to not do these things but it’s a totally other matter for a contractor to not do them. I would think he could mess up his insurance coverage if he’s not performing these basic tasks. I would hope he has learned his lesson and will call in all the inspections he ought to now and not worrying about “bothering” the inspectors whose job it is to inspect. This could have been a potentially extremely expensive lesson learned, but, thankfully, it didn’t end up being expensive.]
Chairman McCann pointed out, “Would it take you more time to move this garage than it would take for an inspector to come out and look at that foundation? Yes. It would I think.”
And moving the garage was, realistically the only option they had to bring this garage into compliance. Supervisor Craanen had mentioned in his memo the possibility of attaching it to house; however, doing that would have resulted in the building not meeting other areas of the zoning ordinance, specifically requirements related to setback distances from the property lines which were different for accessory buildings versus buildings that were a part of the principal dwelling.
It did not seem that there were any safety issues with the building as it was currently situated. The members of the Board of Zoning Appeals had been under the impression that the five-foot distance requirement between the main building and the accessory building had been put it place so that the fire department could make sure they could fit themselves and their equipment through that space in case of an emergency. Supervisor Craanen, however, the 5-foot distance required by city code was simply an arbitrary community standard.
The board struggled somewhat in trying to figure out how to view this request and fit it within the standards they had to adhere to. There was nothing odd about the lot itself and it would have been possible to build a garage of the exact same dimensions as the current one on this property while also adhering to the municipal code, so there did not seem to be a specific hardship in place that was unique to this lot which might necessitate a variance.
At the same time, board member Scott Engstrom pointed out, “[O]ne consideration that we have to take into account is whether or not [a hardship is] self-created. But I think there’s kind of that intermediary event of the contractor not having requested the stakeout. So, I’m not sure that, I guess, in the truest restrictive sense that it’s self-created, because the applicant was trying to follow the correct process.”
Eventually, board member Karen Cain made a motion to approve the variance request “based on the series of events that have happened. […] it sounds like they did their best to try to get the approval as it stood and they got a permit. And I think if the—if a measurement is unclear, to me, it’s up to the city to get a clear measurement, to understand what they’re approving. So, I feel like the hardship was not created by the owner. It was more created by a series of events.”
This reasoning carried the day and the board members voted unanimously to approve the variance request.
[Honestly, I was really relieved. I’m not actually convinced, based on the merits, that the variance should have been granted; however, given that the head of the inspections division described the 5-foot distance requirement as “arbitrary” and there seemed to be no safety issues, my heart fell on the side of my general belief that people should have broad latitude to do what they want with their own property rather than on the side of my observation that the contractor made a big old mistake and did not carry out the basic due diligence required to be competent in his line of work. But, especially at Christmas I don’t want to see someone face thousands of dollars to rectify a problem that ultimately was just the result of an arbitrary rule put in place for who knows what reason.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1139601&GUID=1640BAC8-6BCC-4A7F-AABD-43DCB9DFCD1B
Be the first to reply