Bza-1753 Melvin K. Elliott Variance Staff Report November 29, 2007 bza-1753

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Melvin K. Elliott


Staff Report

November 29, 2007


Melvin K. Elliott


Staff Report

November 29, 2007


Petitioner and owner, represented by Vester & Associates and attorney Joseph T. Bumbleburg, is requesting a 0’ setback from the right-of-way of Walnut Street instead of the required 25’ to make conforming the existing house and to permit an addition with a 1’ setback. The site is currently known as Lots 31 and 32 in the plat of Middleton (now West Point), but is currently in the process of being replatted into one lot. The property is located in West Point and is commonly known as 7016 Walnut Street, Wayne 24 (NE) 22-6.


This site and land to the north and east is zoned R1B, Single-Family Residential. AW zoning surrounds to the west and south. The town’s commercially zoned area is a couple of blocks to the north.


Currently on site is a single-family dwelling built in 1958 with an attached garage with a driveway accessing the alley to the north. The land in this request received preliminary approval last month for a replat from two lots to one lot. That subdivision, M. Elliott Minor, removed the middle lot line that ran alongside the single-family house.

All uses surrounding the site are residential.

Both Walnut and Mulberry Streets are classified as rural local roads and have a pavement width of approximately 10’ to 12’ with no curb or gutter. Much of this area along the roadway but within the platted right-of-way is planted in grass and trees. Like many of our County’s smaller towns, West Point has street right-of-ways platted 50’ to 60’ wide with only a narrow meandering paved portion used as road surface.

The County Commissioners have approved and recorded an encroachment agreement with the owners because 5’ to 6’ of the existing home sits within the unimproved right-of-way of Walnut Street. The planned addition would have a one foot setback from this lot line.

The home is served by septic and well. Information provided during the subdivision process indicates that the finger system for the septic is located northwest of the planned addition.


Petitioner’s first inquiry about building an addition to his home revealed two main issues. First, a boundary survey indicated that the house, which was built in 1958 before the zoning ordinance was adopted in the County, was partially constructed in the right-of-way of Walnut Street. Second, the existing home was built only a few feet from the lot line dividing petitioner’s two platted lots. The planned addition was proposed to cross over this lot line.

To resolve these two issues, petitioner secured an encroachment agreement with the County Commissioners to allow the existing home in the right-of-way; this agreement also stipulated that no new structures could be built in the right-of-way. In order to remedy the lot line situation, petitioner has received conditional approval for a replat of his two lots into one lot. Now that these two issues have been resolved, petitioner has filed this variance request to both make the existing house complying and allow the construction of an addition 1’ from the property line. The ordinance requires that all additions to nonconforming structures comply with the current regulations, which is in this case, an averaged building setback of 10’. The ordinance allows averaging of setbacks in certain situations, but the setback average can never be less than 10’ (Because the average of the two existing houses on this 4-lot blockface by aerial photography is between 7 to 8’ the required setback by averaging is 10’).
According to the submitted site plan, room exists for the addition to be built with a larger setback than the 1’ shown on the site plan. Staff recognizes that homes in our smaller towns were often built with a casual disregard to lot lines. The part of the right-of-way that is planted in trees and grass may function like a front yard, but it is really public land set aside for any infrastructure that might someday be built for West Point. While an addition built at the standard setback of 10’ may be impractical and not logical with the existing house, a 1’ setback is too close for staff to support when there is no ordinance-defined hardship. Using the averaged setback of 10’ would allow the petitioner to build an addition without the need of a variance; the existing nonconforming house built within the right-of-way can legally continue also without need of a variance.
Regarding the ballot items:

  1. The Area Plan Commission at its November 28, 2007 meeting has determined that the variance requested IS NOT a use variance.

And it is staff’s opinion that:

  1. Granting this variance WILL NOT be injurious to the public health, safety, and general welfare of the community. Because of the narrow road pavement, the wide grassy right-of-way and the low traffic volume on Walnut Street, the existing house and the proposed addition would not negatively impact the traveling public.

  2. Use and value of the area adjacent to the property included in the variance request WILL NOT be affected in a substantially adverse manner. Neighboring homes would not be affected as much as the traveling public and with only 5 homes using this part of Walnut Street daily, the impact would be negligible.

  3. However, the terms of the zoning ordinance are being applied to a situation that IS common to other properties in the same zoning district. There is nothing unusual about this lot’s shape, size or topography; in fact petitioner has a single lot the size of two lots on which to build. There are other houses that were built in our small towns without regard to existing lot lines.

  4. Strict application of the terms of the zoning ordinance WILL NOT result in an unusual or unnecessary hardship as defined in the zoning ordinance because there is still ample room available for an addition of this size (or larger) to be built at the averaged setback of 10’. The house is a nonconforming structure and can legally exist at its current location without need of a variance.

Note: Questions 5a. and 5b. need only be answered if a hardship is found in Question 5 above.

5a. The hardship involved IS self-imposed. Although the house was constructed prior to the inception of zoning and is not necessarily a self-imposed situation, room does exist on site for an addition to be built with a 10’ setback. It is only petitioner’s preference for an addition at this setback that is requiring this request.

5b. The variance sought DOES NOT provide the minimum relief needed to alleviate the hardship. While the 0’ setback requested would be minimum relief for the existing nonconforming structure, minimum relief for the proposed addition would be the 10’ averaged setback.


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