How did the city make a 17-foot error in computing the front setback of new — and strenuously opposed — housing construction on Lucerne? The answer came late in tonight’s case to decide whether to let the violation go (by issuing a variance) or force the owner to tear it down. A dozen outraged residents would have preferred the latter in this third and decisive BZA appearance by architect/owner Ben Strout.
Members present: Beverly LeBoeuf, Brian Jarmon, vice chair, Ty Cole, Stuart Roberts (S), and Andrew Marlin (S).
Members absent: Lauren Gwaltney, chair, Matt Foley and Battalion Chief Nickolas Hill.
Staff present: Greg Cobb and Vanessa McGrath of the Building, Engineering and Zoning Department, planner (part-time) Fred Goodwin, also of BEZ; and Planning and zoning clerk Donna Bridges.
Audience attendance: 25
*Note on procedure: By state law, zoning variances granted by the 5-member board require a super majority of 4 members voting in the affirmative. To keep business moving in case of absences, the law provides two supernumerary members (S) to sit in and vote if needed. (The board clerk alternates their votes, which are not noted in the blog.) Variances expire in 180 days if a building permit isn’t obtained.
Carried over a variance case allowing Piggly Wiggly’s non-conforming rear setback to remain when the building is renovated: The grocery store at 3000 U.S. 31 already sits 20 feet into the rear setback, a nonconformity the owners want to retain as they expand the building to the side, toward Oxmoor Road. The case has been inexplicably carried over each month since February.
Approved — under stringent conditions — an updated variance request allowing OLS to build within a few feet of a neighboring business: Architect Tim Lucy made two appeals last month for permission to build a 2-story storage addition on the Family Life Center 13 feet into the required clear space between church property and neighboring Oxmoor Animal Clinic. The first request, easily granted by the Planning Commission, was to amend the development plan for the addition, which would provide space to store movable walls, audio equipment, stages, and seating to transform a gymnasium into a multipurpose space for the youth program. The second request, to build within a few feet of the property line, was headed to a negative vote by the BZA and therefore postponed after veterinarian Mary Claytor complained bitterly about previous church construction dropping nails, roofing material and other debris in her dog yard and a general long history of bad relations between them. Dr. Claytor’s story was in stark contrast to the warm picture Mr. Lucy had drawn of the church’s soon-to-retire senior pastor and his wish to improve facilities for young people. Board members asked the architect to re-think how the construction could happen in the small space, and with no harm to the Dr. Claytor’s property or animals.
In tonight’s presentation, Mr. Lucy outlined a plan to build the addition from the inside out to avoid exposure to the veterinarian’s property, using no exterior scaffolding, painting with rollers instead of spray, and maintaining work zones that were cleaned up daily or kept free of any construction impact. Restating the hardship as a “landlocked” campus, Mr. Lucy said he could not revise the plan because there was nowhere else to build affordably.
Dr. Claytor objected to the proposal, but less vehemently this time, and asked the board who would be the responsible party if her fence and retaining wall were undermined by the construction, or for any other damage. At this, Mr. Lucy said the church would sign such an agreement if necessary. Mr. Cole then suggested a vote should include the proffer to adhere to the building plan presented as well as scheduled weekly meetings of the parties to address any problems. The vote to approve had one dissenter.
Voting no to the setback variance: Andrew Marlin
Waived 5 parking spaces and a parking rule for the Bell Center redevelopment on 29th Court South: The Bell Center early childhood intervention facility is building anew at 1730 29th Court South after purchasing an adjacent lot for the expansion. The center had already been approved for the resurvey and other setback variances. Tonight’s case related to reducing the number of parking spaces from the required 40 (2 per each of 20 employees under daycare zoning regulations) to 35, and allowing parking to be directly accessible from a public alley. As Taylor Schoel of School Engineering explained, 9 of the current 31 spaces are already on the alley. With support from Mr. Cobb, saying current parking was adequate, the board voted in favor of both exemptions.
Granted a variance to allow an existing nonconformity to continue for an addition on Mayfair: The homeoowner at 1808 Mayfair Drive proposes a 2-story addition for a double garage extending directly back 37 feet to the rear of the property. As the house is already 1.2 feet too close to the side property line, the addition would extend the nonconformity unless a variance is granted.
Speaking at the hearing were the backyard neighbors from 1809 Lancaster Street, asking the depth of the addition and if any trees would be removed for construction. The homeowner said two crape myrtles and an oak tree would be removed. However, at 24 feet high, the garage would have a low profile, much lower than the main house, and little visual impact. With no objections from the neighbors, the board voted to approve.
Approved–under duress and with special conditions–a 17.1-foot front setback variance for a house that was granted a building permit despite a nonconforming front setback: Tonight’s decision in favor of the builder allowed was granted with one dissent and over the objections of 12 residents, most of whom had already protested the development strenuously in two earlier BZA cases last year. Architect/owner Ben Strout, a founder of the former Appleseed Workshop and doing business as Harvest Innovations, listed his hardship as the city’s 17.1 foot miscalculation of the front setback distance, a discrepancy between the survey of the original house and the GIS mapping information Ms. McGrath relied on instead. (Front setbacks in NPD zoning are not to project further than the nearest house on the street, in this instance, the original house on the lot.) And, although city error played a role but didn’t justify variances in two recent and similar BZA cases, (on St. Charles and Oxmoor Road), a denial tonight would have certainly prompted a lawsuit if not disastrous financial trouble for the architect. As frustrated residents said to the board after the meeting, however, a lawsuit might still be in the works.
First, some history:
FIRST BZA APPEARANCE: Residents on Lucerne assembled on Feb. 2, 2017 to fight a plan by architect/owner Ben Strout to combine and redraw three original lots that had been used as a single residential property for decades, demolish the house at 169 Lucerne Blvd., and build three new houses. Chief among resident concerns were the number of house planned and drainage, namely, a storm sewer that bisected the second lot and a washed-out section that the owner had packed with fill dirt. BZA members were further concerned about the odd puzzle-piece lot lines proposed, which were made to preserve street frontage by placing the center lot far to the rear, and continued the case.
SECOND BZA APPEARANCE: That case was continued to March 2017, when the architect/developer returned to propose redrawing the three rectangular lots with equivalent street frontage. This time 20 residents, armed with legal and engineering arguments, opposed the division. BZA unanimously rejected the lot variances.
PLANNING COMMISSION HEARING: Then, in April 2017, the developer reduced the property division to two lots, whose areas would conform to city standards. No longer needing lot size variances, the request went before the Planning Commission, which governs resurveys, and was unanimously approved. At that meeting, zoning planner Vanessa McGrath described the required setbacks, including the front being no further forward than the closest house and not closer than 25 feet from the front property line. Mr. Strout’s spokesman promised he would build the houses within the limits and seek no further variances from the BZA.
THIRD BZA APPEARANCE: What happened next is unclear. Ms. McGrath presented a timeline in which she provided Mr. Strout in July the front setback dimension of 32.9 feet, taken from GIS mapping software. In November, the foundation survey matched the setback dimensions and construction proceeded. It wasn’t until February that Inspections Department head Wyatt Pugh, investigating a neighbor’s complaint about the setback, visited the site and ordered work stopped pending a BZA hearing.
Ms. McGrath explained the discrepant measurements without admitting errors. The city is looking into the methods of setback and lot size determination.
Residents tonight didn’t hear the explanation until their comments and the public hearing was closed. Some mentioned the builder’s poor record on stormwater practices, prompting calls to ADEM. Others complained that a favorable ruling would not only set a bad example, but actually set a shallow setback standard for future houses, especially the vacant lot next door owned by Mr. Strout. BZA member Ty Cole, who took the lead in deliberations, suggested a legal notation attached to the property that would prevent the 39 foot setback — if allowed– from being used in any future setback calculations. Much discussion followed about how and if such a system would work. At one point, seeing that the BZA would likely approve the variance, a resident lawyer suggested the matter be settled with city insurance money, repaying the owner for his loss and removing the house from the street. “That’s what insurance is for, to take care of mistakes,” he said.
Nevertheless, to the distress of residents and relief of Mr. Strout, the BZA called a vote conditioned on not allowing the setback to set a precedent, returning a favorable, 4-1 decision for the builder.
Voting no to the variance: Beverly LeBoeuf