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Despite misgivings, board grants homeowners ‘special exception’

Tuesday, July 17, 2012 by Elizabeth Pagano

Citing procedural problems, the Board of Adjustment voted unanimously to grant a special exception for an existing covered patio despite the homeowners’ difficulty in obtaining a required life/safety inspection.


The board has been working to clarify the process for granting special exceptions since last month, when several cases brought to light the difficulty of obtaining the required life/safety inspection. Two separate homeowners were unable to obtain the inspection, despite doing their best to work with the city (See In Fact Daily, June 20, 2012). City Council last May passed the special-exception ordinance that allows homeowners to get a pass on small violations that have existed for more than 15 years as long as they show proof of a life/safety inspection that shows the non-conforming aspects of their home do not pose a risk.


One of the cases, concerning a covered patio built in 1986 at 8005 Finch Trail, returned to the Board of Adjustment last week. The homeowners, Annemarie and John Bagby, had set off in search of the special-exception inspection at the board’s behest, but returned to the board with an inspection that Alternate Will Schnier called “worthless.”


In the end, the board voted 7-0 to approve the special exception for the patio, but not without discussion. (Board Members Melissa Hawthorne and Stuart Hampton were absent.)


“It’s a problem not of your making,” Chair Jeff Jack told the Bagbys. “The simple fact is that if we grant you a variance for the special exception, and something happens, due to life/safety issues, or become obvious afterwards, then we have a problem that we’ve given you permission to do something that created a liability issue.


“The special-exception ordinance that was passed by the Council was intended to give relief to people who have had a minor infraction in the setbacks for 15 years or more. The inspection is to get the city to go out and look at it and know if we grant the variance it creates no life/safety issue for you or your neighbors. That’s very different than what this is,” Jack explained.


But Planning and Development Review Assistant Director Don Birkner told In Fact Daily that the Board of Adjustment is looking for more of an inspection, and more things on the inspection, than what the building inspection division currently does.


“They want something about knowing it would be OK under all future possible scenarios,” said Birkner. “Building inspection is OK with doing life/safety inspections the way we do them right now.”


“When I told (the inspector) we were going for an exception, he said ‘I’m here for a life safety inspection,’ and that’s what he gave me,” said John Bagby.


Birkner said, “There’s some internal issues that they have whether or not they can go quite as far in terms of writing an inspection report the way that the Board of Adjustment would like it.”


The homeowners were also seeking an additional variance that would allow them to complete work on their house, raising the roof on an accessory structure located within the setback. The board denied that variance by a 7-0 vote.


Jack said that while the problem with the first variance was procedural, the second variance asked for additional height of accessory building that is already above the city’s height restrictions in the setback. “You have a preexisting condition that you are making worse. Just leave it the way it was. That’s what you bought, and that’s what you’re entitled to.”

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