Ever had an Area Variance DENIED?

EddieWalker · Apr 4, 2005

bczoom reminded me of another angle.

Does the shed have power? If there is no power to it, does that change it's classification? Also the square footage will change the classification of perminent structure to garden shed. It varies around the country, and I have no clue about your area.

Good Luck,
Eddie

dholly · Apr 4, 2005

I'm not certain if power makes a diff or not, however, square footage is definitely asked for on the variance application. In the meeting I do recall someone commenting that 200sqft was an important number for one reason or another ((things got a bit blurry after the FEMA EPOD issues came up). At 16'x12', or 192sqft, I believe I may have dodged some bullet there, just not exactly sure what it was! bczomm, I'll know by tomorrow a.m. whether I'll need to educate myself for further strategy. Hoping it won't be necessary.

dholly · Apr 5, 2005

( Good Luck,
Eddie )

Thank you Eddie! IT WORKED! /forums/images/graemlins/smile.gif

Just got the call...

FEMA flood plain elevation = 570'
Lowest ground elevation around perimiter = 571.1'
First floor elevation = 572.5'

IT'S OUT! /forums/images/graemlins/grin.gif /forums/images/graemlins/grin.gif

Did you see that big, angry monkey jump off my back?
Oh, Happy Day!

Back on track for the side setback variance, next meeting tomorrow...

dmccarty · Apr 5, 2005

Dholly,

Can you say by the skin of your teeth! /forums/images/graemlins/grin.gif /forums/images/graemlins/grin.gif /forums/images/graemlins/grin.gif /forums/images/graemlins/grin.gif LOL but that is close. Glad it worked out. Usually the small guy looses. I'm happy to see a different outcome even if it was by 2.5 feet! /forums/images/graemlins/grin.gif

Later,
Dan

EddieWalker · Apr 5, 2005

WOW, congratulations!!!

Hard to believe how close you were with just a few feet.

dholly · Apr 15, 2005

Previous meeting postponed, so last night was first time back. After 30 mins determining whether a fence could be placed on some guys property, and what style, required landscaping, etc., my hearing commenced. The 'Chair' started with a recount of how onerous the situation was, how bad things looking for me and turned the floor over to the town atty.

As he began to read his 'findings', I asked if I might interrupt but was told to hold my tongue until after the atty was finished. Fine. 20 mins later - yes, 20 full mins! - he was done... basically saying I was S.O.L. and they could not possibly issue a variance because it was in the FEMA flood plain and, therefore, it had to be torn down. I again asked if I could speak. The Chair said "the board has ruled, there is nothing you can say or do to change our minds or the legal situation that you brought upon yourself." And the gavel came down.

I again asked if I could speak. After a somewhat annoyed sounding "yes, but quickly, we must keep the meeting moving along...", I asked the atty which map he based his determination on. "The EPOD map", he responded. Since I had seen at least two EPOD maps that contained conflicting boundaries, and that didn't include the subdiviaion map with it's elevation lines, I asked which one, He would not elaborate further than "the town EPOD map". So much for accountability.

So I gave the Chair a copy of the subdivision map I obtained from their own building inspector/dept., and my newly certified instrument survey with the elevations clearly marked to show the shed not in violation. The silence was defening, with the exception of a few hurumpf's from the zoning board chair and town atty.

After several more minutes of questions, the determination was once again postponed until the next meeting, "in order to confer with the building dept. about the validity of maps in question." I respectfully pointed out that every map I had presented contained a raised seal certification and also showed the original receipt for the survey update. But noooo.... gonna drag it out ANOTHER three weeks just to teach me a lesson I guess. Sheesh.

EddieWalker · Apr 15, 2005

Sounds like your dealing with some EXTREMELY important people here. I think giving them all that common sence and some actual facts might take longer then three weeks to deal with. Sometimes with such self important folks, facts might never even enter the decision making process.

Sorry, I feel for you.

Junkman · Apr 17, 2005

As the town attorney said in his 20 minute disertation.... don't confuse the issue with the facts, they have there minds made up. I suggest that you have the surveyor contact the building department and get as much as possible in agreement with the building officials ASAP. Then at the next meeting, see if you can get the building official to attend the meeting and bring along your surveyor to testify to the authenticity of his work and answer any questions. It might also be necessary to have him bring along his State license to prove that he is properly licensed to practice surveying. Never underestimate the tactics that they will pull out of the hat for the next round. You have already painted them into a corner, and like any rat that is trapped in a corner, they will come out fighting and biting until you, the predator are put down. As I said originally, you should have a well connected attorney at the meeting. Are the meetings taped or transcribed? Many times, they are not, because the rats don't want any record of the lies that they tell.. Good Luck..... you sure are going to need it now.... /forums/images/graemlins/frown.gif

jpr62902 · Apr 18, 2005

I would also suggest that you create your own record of the next hearing by bringing a tape recorder (make sure everyone knows they're being recorded BY YOU), or better yet, a stenographer. You don't want to rely on their minutes or the possibility that if they tape the hearings, the tape suddenly disappears when you want a copy of it.

OkeeDon · Apr 18, 2005

I agree with the stenographer idea. Around here, when the knowledgeable developers come in to a P&Z meeting where they have been shortchanged in the past, they bring a certified public stenographer to take notes. This becomes a legal record of the meeting. Suddenly, all the officials in the room start minding their p's & q's.

dholly · Apr 18, 2005

I hear ya Junkman, but I really hope they understand I'm not challenging their authority or slamming them personally for doing their job. Rather, I simply defined the exact EPOD boundaries on their map at my expense - which they all agree represented only "approximate" boundaries. Hey, for all I know, they might even be grateful to know exactly where they are for future reference. At any rate, they will reassess in light of this new information, but I have a hard time believing they want to get into a pizzing contest over something so insignificant. What would that accomplish ultimately?

Maybe I have an overly optimistic view that most men are decent and fair but, after removing this EPOD impediment and admitting my sins, I'm hoping the board will simply see the uncontested side setback variance to be the appropriate solution in everyone's best interest. I feel l must give them the benefit of the doubt and let it go one more move on their part. If they dismiss the EPOD issue but deny the side setback variance for no good reason, I will be forced to go full bore offensive. Until then, my tail remains firmly between my legs and my fingers crossed.

DocHeb · Apr 18, 2005

( Maybe I have an overly optimistic view that most men are decent and fair )

Yes, I believe your self assessment is correct. There is nobody looking out for you in this matter (other than yourself), you have already experienced the board's self-rightous behavior, and what is right is not necessarily what will happen.

Moon · Apr 18, 2005

Like Junkman said, you need an attorney that can get inside info. At least to give you a good indication of what the board is up to before the next meeting. If they are leaning yoour way, then great. But if not, I fear they will pull another rabbit out of their hat and find another reason to deny your request. If the situation is still questionoable, load up both barrells. Don't underestimate them.
Best of luck with all this,
kinda makes me glad to be in the country.

Moon

dholly · Apr 18, 2005

Yes but, the time issue aside, so far I can't really fault the board's actions to date. Since they don't have any ability to change FEMA rules (only me with a LOMA application), their hands are tied technically. Their stance when they believed the shed to be in a FEMA flood plain would be warranted in my view, whether I like it or not. But that is water over the dam and now I am simply back at square one, in hopes for the side setback variance. The area variance process exists for situations wherein following the rules to the letter would cause undue hardship. Here's the deal...

( As of July 1, 1992 a Zoning Board of Appeals (ZBA) must discover the facts of each variance application and use the following tests, as set forth by the Legislature of the State of NY:

AREA VARIANCE

Under this test the ZBA must balance "the benefit to the applicant if the area variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant". Not every one of the five factors must point towards the granting of the variance. However, the five factors, when considered together, must balancein favor of granting the variance. These five factors are summarized as follows:

1.) Change of character of the locality.
2.) Alternative methods to acheive what the applicant desires.
3.) The degree of variance sought.
4.) Effect on the physical and/or environmental conditions existing in the locality.
5.) self-created difficulity.

An applicant must also show a practical difficulity or that an unnecessary hardship will exist by the strict enforcement the zoning ordinance. Examples may include well locations, leach fields, existing structures or because of conditions that existed on the property before the code went into effect. )

I should imagine a FEMA flood plain qualifies. IMO there would be a very reasonable chance that, in the absence of any comunity protest, the board may well have approved the request to place a shed where it is simply because there is really no other place to locate it on the property that keeps it out of the flood plain and also out neighbor view without removing several large, mature trees. Let's face it, being 10' rather than 15' feet from the side line in the rear of a several acre parcel while the acreage behind is all 'forever wild', non-buildable because of the wetlands designation doesn't exactly sound like an 'extreme' enough level of variance sought to justify the forced 'hardship' of moving/removing the shed.

According to the law, my ignorance with regard to failure to obtain a building permit is no defense on my part, any more than it is a factor that tips the balance away from the ZBA from granting the side setback area variance. The first four factors should trump the fifth, IMO. We'll see.

Darren · Apr 18, 2005

If you don't already have it, you need to get a copy of the local flood plain ordinance before the next hearing. Spend the time to get familar with the ordinance. If the residents of the community can buy flood insurance there is a flood plain ordinance on the books. Rather than get an attorney who won't know his *** from a hole in the ground on flooding issues, try to find a certified flood plain manager. They will either be certified by your state or the national organization at:

www.floods.org

Click certification and then CFMs for a list of certified individuals in each state.

The website will give you a list of certified flood plain mangers in your state. The other fact to determine is if the municipality actually has a certified flood plain manager on staff. If they don't that may give you an edge. If you have questions after you read the ordinance, PM me and I can help you find someone either with FEMA or the Insurance Services Office in your area that can answer them. At that point you'll know if you then need a certified flood plain manager to rock and sock'em.

Get a copy of the ordinance first. Most of them are standard boiler plate that FEMA hands out to communities to rubber stamp and send back.

dholly · Apr 19, 2005

Thanks Darren, your comments have been most helpful. I spoke with the Code Compliance Officer today to thank him for his suggestion to have the elevations shot on site, and appraise him of the ZBA meeting happenings. He said that, in his opinion, I should meet little resistance to the side setback variance. When I asked about the Floodway ordinance, he pointed me online to a link on the town website. Apparently, many towns post their Code's Administrative and General Legislation on-line at http://www.generalcode.com/ Sure enough, I have on-line access to the entire Town Code, plus a chronological listing of all legislation adopted since the publication of the Code. This includes the EPOD#8 Flood Damage Prevention Overlay District Regulations, Variance procedure, Construction Standards, Encroachments On Streams With a Regulatory Floodway, etc., etc., etc. It really is fascinating reading, and I have bookmarked several Articles of interest. I will be certain to arm myself with pertinent info before heading to the next ZBA Determination Meeting... just in case. Thanks again.

Wannafish · Apr 20, 2005

"Unfortunately, many people go thru life expending only the minimum effort, with little regard to the potentially negative ramifications of their IN-actions."

Kind of like NOT getting a permit... /forums/images/graemlins/grin.gif

dholly · Apr 20, 2005

( "Unfortunately, many people go thru life expending only the minimum effort, with little regard to the potentially negative ramifications of their IN-actions."

Kind of like NOT getting a permit... /forums/images/graemlins/grin.gif )

Lol, thanks for the chuckle. Perhaps I am calling the kettle black. IMO however, IN-action infers that one must be aware something requires action, but then does nothing. IF I were to be fully cognizant of a building regulation or requirement and purposefully chose to ignore it, I might be willing to agree. But, sorry to disappoint you and all the ZBA members who feel that every community member should be able to recite Town Code from memory. You all give me an awful lot of credit, but in reality I am a big dummy - not a builder, nor someone with prior experience or need to work with such issues on a regular basis. In fact, I am [was] a BUILDING REGULATIONS VIRGIN. /forums/images/graemlins/blush.gif

And I am certainly not alone. With regard to the common folk, the ZBA said it best; they recognize they have an EDUCATION and AWARENESS problem that needs dealing with. Most people may understand that building permits are necessary to erect a house, but requirements for accessory structures differ significantly from town to town across the country. Particularly between city, suburb and country communities. Many sheds DON'T require permits. I wonder how many people living in the country with 5+acre lots run to the town to see if they needed a permit to put up a shed? Dunno, but I'm betting the only correct answer is: more today than ten years ago! /forums/images/graemlins/crazy.gif

Yes, people exhibit their ignorance every single day without causing harm to others and, frankly, I don't feel it makes a lot of sense to hold it against them. Do you know what a Diagonal TimeSpread, a Ratio BackSpread, a Naked Butterfly Strangle or a Straddle Swap is and how to calculate their deltas? Hey, I wouldn't hold it against you if you didn't. Besides being impractical, nobody likes a know-it-all! /forums/images/graemlins/grin.gif /forums/images/graemlins/grin.gif

Just thank your lucky stars you are not in the position to have some govenrmental protection or oversight board with the power and discretion to punish you financially decide to 'teach you a lesson' either for your own ignorance or theirs... just because. A little bit of power can be a dangerous thing, and many people like to pass the buck... /forums/images/graemlins/mad.gif

chatcher · Apr 20, 2005

( ...Do you know what a Diagonal TimeSpread, a Ratio BackSpread, a Naked Butterfly Strangle or a Straddle Swap is...)

I'm not very good with those fancy drinks - just give me a beer. /forums/images/graemlins/grin.gif

OkeeDon · Apr 20, 2005

...what a Diagonal TimeSpread, a Ratio BackSpread, a Naked Butterfly Strangle or a Straddle Swap is and how to calculate their deltas? 

I thought there were rules on this forum about profanity and pornography, now we're hearing about spread, backspread, naked, strangle, straddle, swap...what's this world coming to?

And, no, my mind's NOT in the gutter. I'm too old for that sort of thing. /forums/images/graemlins/wink.gif