Ever had an Area Variance DENIED?

[SnowRidge]

<font color="blue"> When you built the shed were you required to get a building permit? If so and you had a permit, you may have a case. </font>

I am not a lawyer, and I don't play one on TV, but I have seen a similar case, except it wasn't exactly a shed. It was a huge steel shop building that an individual erected on a residentially zoned lot in rural Florida.

The county granted the guy a building permit, despite the protests of the neighbors. It took years and several lawyers, but the owner finally had to tear it down. The bottom line was: Just because you have a permit, it doesn't mean you can build a nonconforming structure. The structure must be both permitted and conforming--at least in Florida.

 

[dholly]

</font><font color="blue" class="small">( ...zoning boards don't always play by the rules. They are a WHO you know, not WHAT you know system, if there ever was one. /forums/images/graemlins/crazy.gif)</font>

I believe your sentiments are correct far too often, hence my "don't you love small town politics" quip. Because there is no monetary incentive involved in my situation to influence anybody, hopefully the simple merits of the case will prevail.

</font><font color="blue" class="small">( Most small towns are part time. Most of these positions are non paying or very near. Most all of the people who fill these positions work a full time job and have a lengthy trip to and from that job to begin with. )</font>

Larry - I completely understand that point of view as it applies to the part-time zoning board seats, and I appreciate the personal sacrifices many make to fill such positions. However, when submitting the application I respectfully made it very clear that there was a pending home sale involved and asked specifically 1.) what I needed to do as applicant in order to have this resolved ASAP and 2.) when placed on the agenda, that the board members be advised of the timeliness of the matter. And, really, just how much time and effort would it take to review upcoming agenda matters in order to help minimize avoidable delays. I suspect it would even help reduce their workload hours. But I still don't feel that was too much to ask in a small town (how small? 3 items on last night's agenda and 3 parties in the room aside from the board members). And, if that request was indeed passed along, every single board member chose to ignore it. If that were the case, those actions certainly didn't help dispel any pre-concieved notion that many who sit on local committees and boards do so for the ego trip or some other personal reason, rather than a way to selflessly give back to the community or help their neighbors.

Regardless, what does this say about the full-time inspector, code enforcement officer and town clerks? Don't you think they each should have been aware of any potential EPOD (actually, Environmental Protection Overlay District) related issues? Isn't that THEIR JOB to inform residents of such things? Why do I have to find out three weeks later at the board meeting, suffer the financial hardship and delay of ANOTHER two weeks because, at last count, about a dozen town officials appear to have dropped the ball? With all due respect for any community time you've contributed, pardon me if your comments may be falling on my own slightly deaf ear. It is painfully apparent not every public official puts equal amounts of effort into their jobs, or takes it as seriously as you once might.

</font><font color="blue" class="small">( If you were required to get a permit and you did not, you don't have a case. It's only a small pole barn/shed, pull it down and get on with life. )</font>

JJT - That's the funny thing about life in a small town, so many sheds were erected without permits over the years it may the rule rather than the exception. Heck, 10 years ago if you told the building inspector you were thinking about putting a shed up, you were more likely to get the "just don't tick off your neighbors" tacit approval rather than "you need a permit". NO, there was no building permit but, as I've said before, I doubt there would have been too much trouble getting one after the fact in order to satisfy the house sale contingency... in the absence of this EPOD 'discovery'. And just pulling it down doesn't end the problems I'm afraid. The legal headaches removing it might cause remain, i.e., is the purchase contract void or a price re-negotiation required? How much is a reasonable amount to discount the property for the loss of the shed? Unfortunately, it's not just a small shed when it comes to moving or removing it, either physically or financially.

</font><font color="blue" class="small">( What was your agents advice? Was he/she aware of the shed and it's stituation? )</font>

Eddie - yes, and since this came up after the initial offer acceptance, we had to provide assurances that I would either obtain the side setback variance or, heaven forbid should something unforeseen preclude securing a variance, remove the structure. The agreement was worded in a way as to give enough wiggle room as to time and method of removal. Bottom line - if was built after the EPOD restrictions went into effect, there is no relief available and it will have to go. If it was an existing structure when EPOD went into effect, it is grandfathered and the board simply needs to decide on a side setback variance.

We'll see in a couple of weeks I guess. In the interim, thanks for a forum to vent my frustrations. Some times you just gotta sound off instead of going Postal. Plus, you guys are a lot cheaper than a private therapist while I'm waiting for my tractor to arrive. /forums/images/graemlins/tongue.gif

 

[btolle]

There is bad ness and more bad news.

First, you should have not built the shed without a permit and without knowing for sure where the property line was. The fact that the neighbor was OK with the location has nothing to do with anything.

Secondly, I suspect the zoning board never saw your application before they appeared for the meeting. Most of these boards do not get any information ahead of time so it is not their fault.

I have seen cases where building permits were issued for commercial buildings in residential zoned areas and other mistakes. It can be a real mess. The fact is the burden of proof is on the property owner to be sure he is in compliance with all laws. The city employee who issues a permit that turns out to be erroneous is not liable and you can't sue the city for it.

The best method I have found for handling these situations is to go to whoever you need to go to and explain your problem. Admit your error and/or ignorance (if it was our fault) and ask them if they can help you. People are much more inclined to try to work with you if you are asking for help, even if you made a mistake, than they are if you are demanding or try to force them to do something. That is just human nature.

If it was their fault do NOT rub their noses in it! Nobody likes to be told they are wrong. I always try to approach situations by saying "I may be wrong, but....". That gives me an out if I am wrong and allows them to gracefully admit their error if they made an error.

Folks, don't approach all these things with a negative attitude, that is a setup for failure. Approach problems with the attitude that it is just something that you need some help with. A negative attitude comes through to those you are dealing with and will hurt your chances.

Think about it: How inclined are YOU to help someone who is impatient, demanding, and expects you to correct their errors? Conversely, how inclined are you to help someone who comes to you and says, "I made a mistake, is there any way you can help me to correct it?".

As the saying goes, "Poor planning on your part does not constitute an emergency on my part".

Bill Tolle

 

[dholly]

Bill - yep, everyone is an expert with 20/20 hindsight, including myself! Clearly, I should not have relied upon informal approval rather than obtaining a bona fide building permit, but I haven't claimed ignorance or blamed anyone for the situation I'm in. Truth is, it simply doesn't matter. A problem exists and it needs a resolution. But make no mistake, I have not acted either like a spoiled kid or a bull in a china shop with any town official. I took myself with tail between my legs to seek a resolution, and I have been nothing but friendly and cooperative. I was walking on eggshells, looking to avoid creating any adversarial situation.

Your advice to bite your tongue is well received, and I understood and graciously accepted the fact they felt they needed to do further research before continuing. Believe me, I have no intention of burning any bridges in the meeting, but that doesn't mean I can't express my frustration here. Like I said, I respectfully (and repeatedly) requested the inspector, code enforcement officer and clerk to inform them of the nature and urgency of the matter prior to the meeting, specifically in an attempt to preclude just this sort of potentially avoidable delay. Not being totally ignorant to the efficiency of local government, I simply thought it might be a good idea if I could get someone to preview it since they meet only twice a month and I got a house sale on the line.

Now, for whatever reason someone may think that wrong or pretentious, that's fine. But it turns out I was correct and my concerns were founded. This delay is a direct result of 1.) my not being advised of the possible EPOD restriction when applying for the setback variance; 2.) the zoning board not being prepared for the meeting or unable to recall and interpret their own zoning code. Am I being unreasonable? Lets face it, how many members here would go into an important meeting totally blind and unprepared. Why is it so wrong to expect otherwise of the local town officials, or that they have a basic working knowlege of the code they create and are empowered to enforce?

 

[dholly]

Well, this has turned interesting. The EPOD line in question is a FEMA 100-year flood boundary at 570' topo elevation. On the town EPOD map, it shows the shed location outside the line. However, the topo elevation lines on a 30-year old subdivision map show the line location in a completely different place on the property. Of course, the shed is just within the boundary on that map. Town officials say their town prepared EPOD maps are only an 'approximation'.

Therefore, the issue now becomes one of not whether the shed is grandfathered for building in an EPOD but, rather, whether it can be there at all because long-standing FEMA restrictions are involved. Out of the frying pan into the fire - definitely a turn for the worse. The goods new is that the map has a possibility of questionable accuracy. The topo lines on the subdivision map were not actually shot; apparently it is common practice to simply superimpose the FEMA provided topo lines on subdivision maps as a cost savings measure. And a lot of the FEMA maps date way back and some in the area have been found to be incorrect (I guess I'm not the only guy that has gone down this road!).

So... looks like I'm going to have the surveyor who did the recent instrument survey come back and shoot for the 570' elevation. Hopefully, since I need less than a foot more elevation to be considered out of the FEMA boundary, and the subdivision map shows some site work that changed elevations slightly, I might get lucky. If not, I've got to cut off the posts and skid it about 15-20' straight forward (shed pic attached). Not fun, but sounds easier than applying for a FEMA Letter of Map Amendment (LOMA). Plus, I already saw the TBN 'How-to-move-your-shed' thread. Honestly, there's something for everybody on this site!

 

[Darren]

Make sure the surveyor provides you with an elevation certificate. That will have his professional seal on the document. That certifies the ground floor elevation of your shed. That will be the legal proof that you need for establishing that your shed will not be affected by a 100 year flood. If there's any cooperation at all from your local board that might be enough to get the variance unless they insist on a LOMA.

The older FEMA maps are virtually useless for determining the location of a structure relative to the flood plain. The elevation certificate might be your ticket to ride.

Good luck!

 

[dholly]

Thanks Darren, that's exactly what I'm doing and the survey crew is working as I type. Yep... you CAN type with your fingers crossed!

 

[dholly]

Here's a pic of the shed and ground level.

 

[dholly]

Here's a pic showing about 12" from bottom of T-111 to floor level. Hoping that gives me enough height, along with any margin of error applicable.

 

[bczoom]

I have a couple thoughts/questions...

Is a building permit required for a free standing or movable shed in your area? Don't think of yours specifically but think of those you would see at a box store. If not, couldn't you saw off the posts and reinforce the base then making it "free standing"?

As for the 100 year flood plane, are they saying no structures whatsoever are allowed in that area? I don't know where you live in NY but in many places, you could have a field day with the whole town as I'd bet there are many structures within those bounds. This may be an approach if you wanted to fight hard. Around here, there are several houses within the flood plane. If you don't have flood ins. on it and get flooded... oh well. All 4 of my buildings (but not the house) are in the flood plane.