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Board of Adjustment denies variance to illegally built apartment

Monday, October 21, 2013 by Elizabeth Pagano

The Board of Adjustment took a hard line last week, voting that an illegally built apartment building will have to come down. Board members didn’t pull any punches, as they unanimously rejected a variance that would have allowed the apartment building to remain standing on Duval Street.


Despite the fact that the structure has already been built, the Board voted 7-0 to deny the requested variances. Board Member Sallie Burchett was absent, with Alternate Stuart Hampton voting in her stead.


Zach Reich was seeking a variance for the apartment at 5515 Duval Street that would increase the allowed gross floor area from 850 to 1,534 square feet on the first floor and from 550 to 767 square feet on the second floor. He was also seeking a variance for additional impervious cover. Reich told the board that he was permitted for a 750-square-foot structure in 2010.


Reich told the Board that, while he was permitted for a one-story structure behind his house, he decided to build a two-story structure at the behest of his contractor.


“I was ignorant, and didn’t realize the ramifications of doing that. So I went through with it and added a second floor and now I’m here to request a variance for that square footage,” said Reich. “This is definitely not something I intentionally did.”


Reich said that he has been unable to contact the contractor.


That argument failed to impress Board Member Michael Von Ohlen.


“Sir, the contractor will only do what you allow him to do. You have to accept responsibility,” said Von Ohlen. “This would be one of the first times I have seen the contractor suggest that somebody add something without the owner doing due diligence or being smart enough to look into it.”


Von Ohlen also took issue with Reich’s hardship, which boiled down to the fact that the apartment had already been already been constructed.


“What I’m reading here is that this has already been built. It’s not permitted. It has not been inspected. And now you are coming back to this body, after the fact, asking for forgiveness and wanting us to give you a variance,” said Von Ohlen. “It really chaps my behind when people do this stuff, and it’s been happening more and more as we grow into a bigger city. I firmly believe that the only way we are going to curb this is to deny these.”


The variance was also opposed by neighbors, who stressed that another large rental structure housing an unknown number of people wasn’t what the neighborhood needed during a time when density in the neighborhood was increasing so rapidly.


Ric McElyea, who owns the property next door at 5513 Duval Street, wrote to the board about the variance, noting that his property had been cleared to build a new structure that will comply with code.

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