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Confusion Over Variances

By Staff | Sep 15, 2011

Members of Emmetsburg Board of Adjustment met with Emmetsburg City Council Monday night, Sept. 12. Request for variances was the topic of discussion.

“We’ll get a request for a variance and we’ll go out to the property and the structure is already built or it’s already started and we really don’t know what to do,” said Jim Carpenter, chairman of the Board of Adjustment. “We can be the bad guy and make them tear it down or we let them keep it, which means if you build quick enough you can have it. We really don’t know what to do in these situations.”

Carpenter said that board members have discussed this problem over the years. They have faced this situation a number of times.

“As far as how we rule, I’m kind of a pro-growth person,” Carpenter said. “If a person wants to put $20,000 on his house, the neighbors don’t complain and it’s not going to bother the utilities do it. Let’s spend the money and go. If there’s an objection by a neighbor, that carries a lot of weight. We really don’t know what to do.”

Mayor John Schad asked if they had ever asked someone to remove a structure.

As an example, the Board of Adjustment had denied a variance on building a deck, but the deck is still standing.

“Who has the authority to go and rip off the deck?” asked Schad.

“I figure if we deny something, it goes back to you guys (City Council) to decide between you and the homeowner,” said Carpenter.

City Administrator John Bird commented, “You have the authority to hire someone to go in and take it down, just like we abate a nuisance.”

“You’ve got to help us through some of these,” said Renee Jedlicka, who sits on the Board of Adjustment.

Carpenter asked the council, “What do you guys think we should do when we drive out there and the garage is already sitting there or the cement is poured? When I first got on the board we had somebody apply for a garage and a deck and we drove out there and the garage and deck were already there. Do we make them tear that $40,000 project out? Or do we just let them get away with it?”

“The dilemma is, if you let them get away with it, you don’t have a zoning ordinance,” said Schad. “After you (Board of Adjustment) the next step is court.”

Council representative Sandy Pelzer suggested, “What about adding a new caveat, if the structure is already constructed prior to the variance or permit, then there’s a fee which is a percentage of the building cost.”

City Clerk Kim Kibbie stated that many people are not aware they even need a building permit.

Councilman Brian Campbell asked about the procedure to get a building permit. When a person goes to City Hall to get a building permit, the plans are reviewed by Building Inspector Frank Kliegl. He makes the recommendation to go before the Board of Adjustment to receive a variance, if necessary.

Duties of the Board of Adjustment outlined in City Code 170.05 and decisions are outlined in section 170.06. City Code 170.07 outlines appeals from the Board of Adjustment.

City Code section 170.08: The Board of Adjustment may grant a variance if it makes affirmative findinds of fact on each of the following criteria:

A The provisions of this Zoning Ordinance applicable to the property do not allow for a reasonable use.

B The hardship for which the variance is requested is unique to the property and not general to the area in which the property is located.

C The variance will not alter the character of the area adjacent to the property, will not impair the use of adjacent conforming property, and will not impair the purposes or regulations of the zoning district in which the property is located.

D The hardship for which the variance is requested did not result form actions of the applicant.

Bird noted that a garage was built next to the property line because the neighbor did not care.

“A lot of that has to do with the fact that we don’t have a full time inspector,” said Bird. “Our inspector has a full time job and isn’t ‘available to catch those things. Sometimes it comes down to citizens calling us and then Frank (Kliegl, building inspector) going out there. In most cases, they’re innocent in that they didn’t realize they had to have a variance or a building permit.”

Jedlicka noted that communications is a problem.

“We need to get the word out better,” she said. “People need to know they need a building permit. And, what happens when there is a problem?”

Councilman Steve Finer suggested, “Just say no, we’re not going to allow it, and take the next steps.”

“Just because the neighbor doesn’t complain doesn’t mean that when someone else buys the lot it won’t result in a law suit,” added Schad.

Jim Carpenter requested the criteria (A-D, listed above) be printed “in English,” adding that many requests for a variance would be denied following that criteria. Bird said they could be put in the form of a checklist. Finer suggested this be attached to the building permit.

“What happens to the person who builds without a building permit,” asked Kathy Roether, a member of the Board of Adjustment.

“We would start fining them under another section of the Code,” answered Bird.

Councilman Tony Kauten pointed out, “People are going to look back and say it was done before. People are just expecting this is a paperwork thing pay the fee and go to a meeting. We have to get people to realize they have to have a building permit. And if it does not fall within the building permit guidelines, it will be denied.”

The council discussed setback guidelines for building and it was noted that a former City Council came up with those guidelines.

Mayor Schad suggested turning this over to the City Attorney to see if there is another option. City Attorney Brian Thul will be at the Sept. 26 meeting and this will again be a topic for discussion.