A newly-constructed single-family house and detached accessory building in Paonia that exceed the maximum allowable roof height under town zoning regulations will be allowed to stand.
Located in the 300 block of Niagara Avenue, the buildings are located on two lots zoned "R-2, Medium-Density Residential." According to town code, R-2 zoning allows for "attached and detached single-family, two-family and multiple-family dwellings at moderate densities." The main building's 33-foot, 2-inch roof exceeds the maximum 25-foot height allowable under R-2 zoning, and the accessory building exceeds the maximum allowable height of 15 feet by about 13 feet.
Former town building inspector Dave Coleman signed off on the plans and issued the building permit.
Town Administrator Ken Knight said he first learned of the non-conformity through a citizen's complaint after construction began and prior to the roof-raising. Knight said building permit applications are approved by the building inspector and are not subject to review by the town or the Planning Commission unless required by ordinance.
Knight issued a variance and allowed construction to continue. Under the variance, if the owner makes structural changes to the exterior, the building must be brought up to code. If the property is sold, the variance must be disclosed to potential buyers.
"It was an unfortunate error in judgment," said Knight. "Building inspectors are supposed to know the rules."
Knight based his decision to let construction continue based "on 26 years of experience," and on the recommendation of town attorney Bo Nerlin. He cited a 2012 case where the Michigan Court of Appeals awarded $179,000 in damages to a property owner after a municipality issued a building permit. They stopped construction after discovering a code violation, and after the property owner had spent $65,000 (see Kalkman v City of the Village of Douglas and Kowal).
In the town's case, if the owner were to sue, the town, meaning the taxpayers, would be financially liable, said Knight.
He speculates that Coleman misread the town zoning map. Several parcels on the block, including the Rocky Mountain Inn and Paonia Liquor Store, are located in the "C-1 Commercial" zone, which allows for a maximum roof height of 35 feet. Coleman possibly misread the map and assumed that the property was also located in the commercial zone, said Knight.
Coleman can't be disciplined for the mistake. The town dismissed him last December, citing "an ongoing personnel matter" not subject to public review. At least two individual property owners lodged complaints against Coleman in 2017: Paonia Cleaners & Laundry owner Gia Fanelli and former town trustee Suzanne Watson, both of whom were issued stop-work orders by Coleman. Fanelli's order was lifted after Coleman was dismissed, and legal charges filed against Watson related to her stop work order were dismissed.
David Struempler owns the Niagara property and was issued a building permit in April of 2017. Struempler said he learned of the non-conformity after a man identifying himself as a local commercial developer approached him. He first assumed his building construction engineering was out of place.
A self-described "refugee" from the Roaring Fork Valley, Struempler designs and builds fine furniture and cabinets and designed the two buildings on Niagara as his primary residence and studio/work space. When he first presented drawings to the town, he said Coleman wrote down the allowable specifications, which included a roof height of 35 feet. "I had no intention to do anything wrong," said Struempler. "Why would I? I was given parameters and I used them."
The building footprints total 1,800 square feet, and fall within the building envelope, said Struempler. Building dimensions, he said, allowed him to build a highly energy-efficient house with almost no waste.
After dismissing Coleman, the town hired former Delta building inspector Dan Reardon. Last spring the town contracted the services out to Denver-based Colorado Code Consulting, LLC, for which Reardon is a consultant. Reardon inspected the site and issued a report dated July 19, stating in part that the owner's plans "...were approved by the former building official with violations of height limitations for this R-2 Zone. This was an error on the part of the town government, so I am being directed to inform you (Struempler) that your structure will simply be considered as non-conforming once completed."
Paonia resident Richard Schmidt brought the code issue to the town's attention. "I attempted to stop the house's roof before the trusses were even built, about a month ago," Schmidt told town trustees at the Aug. 14 board meeting during the public comment.
Schmidt contacted Knight about two weeks before the trusses were put in place and asked that the town issue a stop-work order. He received a letter from town attorney Bo Nerlin stating that the town would not take action to stop construction.
Schmidt asked the town board to "uphold the law," stating that a precedent will exist if the building is not brought up to compliance. "I believe that the new height maximum of R-2 zoning will be 35 feet," he told the board.
Knight disagrees that allowing construction to continue and issuing a variance amounts to a change in town code. "Each application is considered separately," he said.
Knight said two of Struempler's neighbors also complained about the building heights. After hearing the town's explanation, "Both said it was unfortunate, but they understand."
Schmidt also requested a review of all permits issued by Coleman. Knight called the request "unreasonable." Between six to eight permits issued by Coleman are still active, said Knight. Since building permits issued by the town have a one-year expiration date, they will all be expired no later than this December.
This permit contains the "one true error" he knows of, said Knight. "Without specific complaints, the town will not review any outstanding building permits."