Variance request tests board of adjustments
By Tamie Meck
Published Thursday, December 10, 2015 10:45 am
Photo by Tamie Meck A cover over a set of porch steps nears completion late last week following removal of a stop order on the project by the Town of Paonia after the couple who owns the home on Poplar Avenue was incorrectly advised of setback regulations
Last September, Randy and Mara Derryberry were planning to build a gabled cover over a section of their sidewalk on Poplar Street. For five years they traveled from their home in Grand Junction to spend weekends remodeling the interior of Mara's family home, once owned by her parents and grandparents. Early this year they started on the exterior.
In winter, snow dumps from the porch roof directly onto the front steps and sidewalk, where it freezes and creates a safety hazard, explained Randy Derryberry at a Nov. 20 hearing of the town Zoning Board of Adjustments. The project would allow snow to dump on either side of the walk and eliminate ice buildup. It was the final step of a long remodel process, and they wanted to do everything right.
The house, built in 1908, precedes the town's zoning ordinances, also referred to as the Land Development Rules (LDR). When they applied for a building permit, they were advised by building official Chad Gartman to measure 20 feet from the curb. They determined the setback and put their contractor to work, setting posts on the edge of the setback and framing the structure.
When they submitted photos of the project, town manager Jane Berry realized there was a problem. Per the LDR, the setback should be measured from the sidewalk. A stop order was issued while they removed the structure and petitioned for a variance that would allow them to set posts five feet into the no-build zone, allowing them to still cover the steps.
"If we had known, we would have applied for a variance from the start," said Randy Derryberry.
Town code requires that the board of adjustments make determinations on variance requests. Over the last several years, the board of trustees has handled variance requests, and the zoning board had, in essence, ceased to exist. Before the Derryberrys could get a hearing, the board needed members.
By late November trustees had recruited enough members for a quorum, and a hearing was held on Nov. 20. The Derryberrys arrived to learn that, due to new members being out of town, the board lacked a quorum.
"The Derryberrys have been very patient," said Berry, who requested that, in all fairness to the applicants, the two members present and town staff hear the case and indicate their intentions.
Two neighbors spoke in favor of the variance. Bob Rasmussen said he's lived in the neighborhood 52 years and believes the Derryberrys shouldn't be required to make any changes. "It was the town's fault," he said. "Deal with it."
Zoning board member Constantine Hirschfeld said he regrets that the mistake has cost the Derryberrys money, but he's hesitant to approve any variance, because then "everyone wants one."
Berry replied that this matter is one of due diligence. Variances are considered only after all options are exhausted, and in this case, a variance is the last option. In addition, said Berry, each case stands on its own merits, and this one is the town's fault. If the request is denied, their only recourse is through the courts.
"I'm going to have to say ok," replied Hirschfeld. "It's not their fault."
Newly elected board member Jim Normandin said it is his understanding that this case is not setting a precedence, and expressed his approval.
Town staff also recommends approval, said Berry, adding that she is comfortable with removing the stop order. "The town will stick its neck out on this one," said Berry.
Despite the hardship, "I would like to thank Chad and Jane," said Randy Derryberry. "They have been very helpful." While Berry helped create the problem, she also worked to make it right, he said.
The Derryberrys have been very patient and willing to compromise, said Berry. "We're appreciative of that, too."
With the project almost complete, Randy Derryberry said he and Mara want the public to know they understand that Gartman and Berry were doing their job. Berry has only the best interests of the town in mind, he said. It was that level of cooperation and professionalism that made being patient a whole lot easier.