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Board of Adjustment approves controversial Hyde Park duplex plan

Wednesday, March 16, 2011 by Elizabeth Pagano

Following a lengthy executive session on Tuesday night, the Board of Adjustment voted in favor of plans for a Hyde Park duplex despite neighborhood opposition.


The board agreed with a Planning and Development Review Department determination that the North Hyde Park Neighborhood Conservation Combining District (NCCD) permits putting two driveways and a carport in front of a duplex.


Last summer, City Council ruled against the Planning and Development Review Department’s interpretation, but when the owner of the duplex in question, Jonathan Kutner, reapplied for permits, the department stuck with its original reading of the NCCD and approved the duplex plans for a second time.


Mity Myhr Clay appealed the determination at the Board of Adjustment, taking issue with city staff’s reading of the NCCD. Staff determined that the requirement that all driveways be separated by a “house” was fulfilled by the small portion of the house extending between the driveways. Additionally, they decided that a ban on garages in the front of houses does not apply to carports.


“The trouble with the interpretation seems to be that if some part of the house is in between the driveway, it is separated by the house,” said Clay. “We argue that it has to be the entire house, which was the interpretation accepted by City Council last summer.”


After the meeting, Clay told In Fact Daily, “The determination of Council was: Separated by the house means separated by the house. It was clear, and the city staff ignored City Council’s ruling. The city staff is making mistakes and will not own up to the mistakes.”


Kutner had a different take on the case, which has been in limbo since last May. “We applied for a permit. We followed all of the guidelines, all of the instructions given to us by the city,” he said. “Basically, we just want to build this and kind of end this nightmare for us.”


Despite the favorable ruling, Kutner expressed frustration following his case. “I would argue that I have been harassed by the neighborhood association, okay?” said Kutner. “The reality is that if someone chooses to buy a property, and they go to city staff, which is the organization that is allowed to give you a permit or not, and you say ‘What are you allowed to do’ and you act in absolute good faith and you’re given a firm answer, and you’re told what to do, and you do exactly what you’re told, there should not be complications with the neighborhood that says, ‘Wait a minute, that’s not what we want.’”


Clay is uncertain about what her next step will be but said she sees her struggle to gain standing in the dispute as being part of a larger issue than this one case.


“The issue with standing is, if you want to appeal a permit, you have to file as an interested party in between the time that builder submits the permit and the permit is approved. And that can be two or three hours. That can be a day,” said Clay. “We think it was written in order to prevent neighborhoods from appealing building permits. I think that is a fair interpretation of why that was written that way. So that needs to be changed.”


John McDonald from the Planning and Development Review Department told the board that efforts are underway to improve this process.


“On a building permit, the interested party status is pretty hard to achieve, just based on the actual residential review process,” McDonald said. “I have brought that to our director’s attention, and we are providing an electronic notification in the future. It hasn’t been finished yet, but folks that are registered in the community registry, such as Hyde Park Planning Team … would be notified electronically once the building permit has been submitted.


“What’s problematic is that since there’s no notification, you pretty much have to be actively looking into the outside viewer of Amanda, our computer database, to see whether or not a permit has been applied for in your neighborhood.”


“I think it’s overly complicated, and it really places too much of a burden on neighbors. It might get better with this automatic system,” said Clay


The board needed to cast six affirmative votes to approve the appeal. With a vote of 4-2, that just wasn’t possible. Board members Jeff Jack, Bryan King, Heidi Goebel, and Melissa Hawthorne voted for approval, while Board members Nora Salinas and Clarke Hammond voted against.

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