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Neighbor’s garage won’t stop duplex, says board

Thursday, March 19, 2015 by Elizabeth Pagano

A neighborhood association bid to overturn a building permit based on a neighbor’s garage lost an appeal at the Board of Adjustment last week.

The board voted 6-1 to deny the appeal, with Board Member Stuart Hampton voting in opposition.

Board Member Will Schnier summed up the case.

“So the permit of the proposed house is not in question. It’s the fact that the 80-year-old widow’s garage crosses the lot line,” said Schnier. “I’d much rather deny the appellant’s application than force the 80-year-old widow to demolish the garage.”

“I don’t care if the garage has a Certificate of Compliance or not,” Schnier continued. “They are being nice neighbors by letting the lady keep her garage. I think they can build their house and move forward.”

Heritage Neighborhood Association president Betsy Greenberg made the appeal. She said the garage that encroaches onto 2910 Rio Grande St. did not qualify for a special exception, and the city issued the building permit in error.

In her presentation, Greenberg showed plans for the house and explained why, in her opinion, it was going to be a stealth dorm. However, her primary question was about process and why the city administratively approved an exemption from compliance to address the encroachment despite being on the Board of Adjustment agenda.

Greenberg said there was no proof that the structure was there before the current zoning code was adopted in 1986. Under city code, such structures are granted “full compliance with city regulations for certain minor violations.”

Developers also sought a special exception from the Board of Adjustment. Special exceptions must be granted by the board and cannot be approved administratively, but also grant full compliance for structures 25 years or older.

The Heritage Neighborhood Association had voted unanimously to oppose the special exception. Greenberg said that at the Board of Adjustment meeting where the exception was to be heard, the association was surprised to see the board approve the applicant leave before the postponement request was approved. Later, emails revealed that the exception was approved just after the meeting started in a separate, administrative process.

“It looks a little weird,” said Board Member Melissa Hawthorne. “You just had to know that when it was on an agenda and you took it off and did it administratively, we’re going to have a problem.”

Husch Blackwell attorney Nikelle Meade spoke on behalf of property owner Ed Lopez.

Meade noted that it takes some time to get on a Board of Adjustment agenda, and Lopez was pursuing the special exception administratively at the same time to cover all of his bases and avoid further delay.

The neighbor’s garage, explained Meade, has encroached onto the property by 9 inches since at least 1907. Greenberg questioned this, and noted the 1907 structure was a stable.

“This is a neighbor who is in her 80s,” Meade said. “She doesn’t want us to bother it. It’s stressing her out to talk about it, but we are not building anywhere near it. We are incorporating that square footage in our impervious cover calculations and all of our building calculations. But it is the neighbor’s garage encroaching on our property.”

Meade said her client clearly met the requirements for an exception as determined by a “vigorous review,” which had delayed the request since November.

One by one, Meade also disputed claims by Greenberg that they had not filed the proper paperwork, presenting applications to prove otherwise.

“It’s not enough for an appellant to show up and say, ‘I believe, or I speculate, or I am doubtful that the information that staff determined is accurate,’” said Meade. “The appellant actually has to show that.”

“We have an appeal that’s really about the neighborhood association’s fear that this is going to be a stealth dorm,” Meade continued. “It’s not. … But frankly, whether or not it’s going to be a stealth dorm has nothing to do with what we are here about today.”

Assistant City Attorney Cindy Crosby told board members that, though staff had been advised to bring the full appeal to the board, they should not consider the exemption/special exception portion of the appeal. She did not know who should consider that portion of the appeal, but the board’s denial of it addressed only the second part of the appeal.

This story has been changed since publication to correct a typo.

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