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To Build Or Not To Build

By Staff | Sep 6, 2012

While the request itself is relatively simple, arriving at a decision proved to be a little more difficult than expected for the Palo Alto County Board of Supervisors on Tuesday. A request for a variance and permission to encroach into the county’s right-of-way generated a lengthy discussion by board members.

Palo Alto County Zoning Administrator Joe Neary appeared before the board along with Greg and Paula Raper, who have requested the variance at Lost Island Lake.

“About 18 months ago, the initial request from the Rapers came to me and at that time, I turned it down,”?Neary told the board as he summed up the case. “But, Paula is persistent and she tweaked that original design and brought it back to Planning and Zoning on July 2.”

The issue revolves around an irregular, pie-shaped parcel of land at the west end of the Westergard Beach Addition at Lost Island Lake. An old structure on the property, owned by the couple, is proposed to be torn down and replaced with a 24′ by 48′, two-story home. The problem arises in the county’s right-of-way, as the proposed house would actually extend into the right-of-way.

According to Neary, the Board of Adjustment granted two variances required for the project, the first, a setback from the high-water mark, and the second from the lot line distance requirements.

“But, even with all that, as Zoning Administrator, I?still say no to the Right-of-way variance,” Neary told the Supervisors.

Palo Alto County Engineer Joel Fantz, who also sat in on the discussion, reminded the board that under the Iowa Code, the Supervisors are obligated to “prevent and abate or remove obstructions in the right-of-way.”

“It’s a confusing situation out there,”?Fantz admitted. “The original gravel road was moved to get more spacing from the residences over there because they were right on the road. You can approve the zoning setbacks, but you have the legal obligation to remove any obstructions from the right-of-way.”

“In the past, before we had zoning, a lot of houses over at Lost Island were built in the right-of-way,”?Neary said.

Currently, the right-of-way is 53 feet through the area in question. It would be 45 feet from the middle of the roadway, but the road being moved eight feet several years back accounts for the added distance.

Supervisor Ed Noonan asked the Rapers if they had been told where the right-of-way line was when they purchased the property by the realtor. The answer was no.

“I was involved in the zoning work back when it began and the Lost Island Lake area was a mess,”?noted Supervisor Leo Goeders. “People were just building everywhere over there. The zoning was created to protect people’s property rights. I just can’t go along with this.”

“I can’t either,”?Supervisor Ron Graettinger said. “We made a person move a building before he could build a few years back because it was in the right-of-way.”

“And, if we allow this, we will have others in here screaming,”?Goeders added.

Noonan suggested moving the right-of-way back, since the road was moved.

“It should have been moved with the road,”?stated Supervisor Jerry Hofstad.

“The taxpayers went to considerable expense to move the road just for reasons like this,”?Fantz said. “We get complaints that there isn’t enough room over there for vehicles to park now.”

Fantz suggested that an independent appraiser, approved by the Department of Transportation, could appraise the right-of-way, come up with a value, and see if the Rapers would be interested in purchasing it as an option.

“I just don’t see, it,”?Board Chair Keith Wirtz said. “It’s a very unique situation.”

The board members debated back and forth for several minutes, with the sentiment seeming to be split.

“Remember, you all took an oath to uphold the laws and the law says you must remove obstructions in the right-of-way,”?Fantz said.

“I’m not doing anything illegal,”?Noonan said.

“So if we’d approve this, we’d be breaking the law?” Wirtz asked, and received an affirmative answer.

With that possibility in mind, the supervisors members decided to consult with the county attorney for an opinion and agreed to continue the discussion on the issue at the Sept. 11 board meeting