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City Council Continues Discussion On Variances

By Staff | Oct 4, 2011

Emmetsburg City Attorney Brian Thul worked with the city’s Board of Adjustment to iron out questions on granting a variance. The question first came before members of Emmetsburg City Council on Sept. 12 and the conversation continued Sept. 26.

“As City Attorney, I’m going to draft rules that are within the authority for the board to adopt in order to conduct their affairs and procedure handling their variance hearings,” Thul told council and board members. “As part of that there are also four criteria that are already written in our code. I will attempt to place the four criteria in layman’s terms, perhaps with examples.”

Thul is making an effort to get rules and criteria in a form that the board and applicants have a clear idea of the rules, perhaps in the form of a checklist.

“If it meets the checklist, they wil qualify for a variance,” said Thul. “If it doesn’t meet the checklist, it will not. There should be continuity and consistency.”

Jim Carpenter, chairman of the Board of Adjustment, met with the city attorney prior to the council meeting.

“The board has the authority to set these rules,” said Thul. “We actually have three rules we came up with tonight and if you want to add a fourth one,, that can be done. It’s the board’s ability to set their own rues.”

City Attorney John Bird said he will be working with Thul to set up the criteria.

“We’re also going to come up with something so that all applicants for variances are going to get pretty much the same thing so that they know that they’re going to have to prove to the board that these hardships exist and they can meet all these criteria. I think it’s going to be important for the m to know, as applicants, before they even come to the hearing that they have a pretty high hurdle to clear in order to get a variance.”

Renee Jedlicka, a member of the Board of Adjustment, expressed concern about development.

Bird noted that discussions had been held on that topic. He pointed out that small lots in the old part of town are useless by today’s standards.

“When I was in Sanborn, because we had the same problem we created an additional residential zoning district and we called it existing residential,” said Bird. He pointed out some of the older subdivisions and used his block as an example.

“Where I live, if you go to the south end of that block on Lake Street, there is a corner lot. If they wanted to build with the front door to the east, facing Lake Street, they would have to be 30 feet back. There are three homes there, including mine, and all three of us are probably 15 feet back. So the way we created that district (in Sanborn) they could be in line with the other structures on that block, but not closer than X so maybe no closer than 12 but you don’t have to be back 30 if the others were 15.”

Thul stated that the council should look into the zoning ordinance, with input from the Board of Adjustment.

“I applaud you for being pro business and pro growth, especially the way the national economy is,” said Thul. “You want to promote people that want to build and do things, but you also need to follow what the current code says. If you don’t like it, you can change it.”

Kathy Roethler, another member of the Board of Adjustment, asked the city attorney to address what to do if someone builds and than asks for a building permit or a variance.

“No variance if construction has already commenced,” said Thul. “That’s one of the rules that everyone will receive.”

The three rules, not necessarily in this written form, include:

1 Attendance at the hearing is mandatory.

2 No variance if construction has already commenced.

3 Project flagged or staked out in advance of the hearing or the hearing will be postponed and the additional expenses for rescheduling will be charged to the applicant.

Thul added that the four criterion are already in the City Code. He will try to come up with examples to accompany that information.

“I thought that the reason that we were having Brian (Thul) come here was to help us find ways of maintaining the structure and not watering down the code by allowing people to build things and then walking away, but at the same time not being so restrictive that we are throwing away the badly needed improvements that we need in town,” said Mayor John Schad.

Board of Adjustment members, the mayor, city attorney and city administrator continued discussion (from the Sept. 12 meeting) about a deck that was built out of compliance.

“That was the outcome of previous times when we’ve gone out to look at a piece of property before a request and the project was already built,” said Jim Carpenter. “This particular deck was one of the last ones we did so we just kind of said let’s deal with this situation now.”

Bird noted that when the variance was denied, the city sent a registered notice that was not picked up at the Post Office. Attempts to hand deliver the notice were also fruitless.

“When I talked to Brian (Thul) he said you’re going to have to have the police department serve it sometime when somebody is there. It was his opinion to take it (the deck) down. I saw his opinion whether we can force them to take it down because I thought that was where the board wanted to go with it. So I misunderstood you. So you would be okay then having them bring it into compliance?”

Thul added that a variance would not be required if the deck came into compliance.

Discussion then came to what can be done when a variance is denied and the project is built anyway.

“Any time you’re in violation of the City Code you are subject to, what the code says, is you could receive a municipal infraction,” said Thul. “A municipal infraction is a civil equivalent of a criminal ticket.”

Thul explained the municipal infraction, when a project is out of compliance, from Chapter 4 of the City Code. First offense is $750 and each continued offense is $1,000. One day is one offense.

“The purpose of it is to motivate people to do what we want them to do, not impoverish people, and hope it’s effective to follow the code,” said Thul. “If you have to take a board off a deck to bring it into compliance with the code, wouldn’t you rather do that than pay $750?”

Defending the board’s rulings, Carpenter said, “What we did is the grey stuff. You can’t say it is good enough or not good enough; you gave this guy one but not that guy. Each one is unique and each one is different. We based it on criteria that we were using, correct or incorrect, but it’s kind of unjust to say if you grant this guy one (variance) you’ve got to grant everybody one. Each one is unique. When somebody says you’re not consistent not black and white it is inconsistent. With the rules we can eliminate a lot of these problems and give us some guidance form here on out.”

At the conclusion of the discussion, a meeting of the Planning and Zoning Board will be held with members of the Board of Adjustment. Discussion include an “Early Emmetsburg Residential” zone for older sections of the city.