04-06-89 Board of Appeals HearingBOARD OF APPEALS HEARING
April 6, 1989 10:00 A.M.
Present at the meeting were Board of Appeals members Karen Barbee,
Bill Heinecke and Charlie Tillson; Mayor Kennedy, City Attorney Neier,
Building Official Kerzman, Building Inspector Dwain Elkins, Ross
Plambeck from KDC, John Lence, Craig Campbell, Tom Tope, and Craig
Semenza.
Craig Kerzman opened the meeting and made introductions. He explained
the situation between the Building Department and the owner of the
building at 69 North Main, John Lence, regarding a disagreement over
an interpretation that Kerzman had made of the building code at the
time the building was remodeled having to do with putting openings
on a property line, which the building code prohibits. Mr. Lence
has proposed an easement adjacent to the north wall of his property
to effectively establish an open area between his north wall and any
other construction that could happen to the north of his building.
What Kerzman is asking the Board of Appeals is whether they consider
that easement an adequate guarantee which would then allow Mr. Lence
to have the windows in that north wall.
Mr. Lence presented the Easement/Agreement and a letter from Charles
Gravely, representing the grantor, that relates to the easement. He
also presented a letter from Tom O'Neil and Jack Creach, the owners
of the property, and an opinion from City Attorney Neier to Mayor
Kennedy and Building Official Kerzman wherein he states that he
determined the easement would solve an ongoing problem. Lence pointed
out the fact that the Uniform Building Code as it exists is only a
guideline to be reasonably interpreted to carry out its intent. He
said the 10' setback requirement is primarily for fire protection to
prevent fire from spreading from one building to another, and in
this case whether or not that 10' setback is created by easement or
by property ownership doesn't change the actual effect because the
reason for the setback is satisfied. He stated the parties who
granted this easement may not ever build in that area and the City
is a party to it. He said he believes the windows in their location
do not create any hazard to anyone and may even be a benefit, and
had passed inspection by the fire department.
Mr. Heinecke asked Lence why he had put the windows in when he was
told not to. Mr. Lence said after he and Mr. Kerzman had disagreed
on how this was to be done, the property sold, and the new owners
wanted to join with Lence and have the alley abandoned. He said he
had no problem with that but he needed a 10' easement and they
agreed to grant the easement. He said he then talked with City
Attorney Neier and they both felt that that had solved the problem.
Karen Barbee asked Lence why he didn't get this all down on paper
and agreed to by the Building Official. Lence said that was one way
they could have done it. He stated the corporation that owns the
-1-
property had been cited for putting in the windows prior to the
conclusion of the matter. He said he thought he and the City
Attorney had reached an agreement relative to that.
Karen Barbee asked if the easement is just with the current owner of
Rax or would it continue if the property is resold. Lence said the
easement/agreement would be recorded in perpetuity as a burden against
the property and all future owners of that property.
Mr. Tillson asked if the easement has been signed. Lence said no,
but he had a letter from the attorney stating that his clients will
sign the easement when they are contacted by the City Attorney or
City Council. He said if the Board wants to hold its decision until
the easement/agreement is signed, that can be accomplished in a
short time.
Mr. Heinecke said he had two reservations about this: 1) The Uniform
Building Code states that we do not have any authority to violate or
abrogate in any way, and 2) there is a difference between a property
line and an easement line, and the code specifically applies to a
property line.
Mr. Lence stated the UBC speaks of a property line, not a deeded
property line. He said a property line is any line whether or not
it's owned, by easement, or by greenbelt and if it carries out the
intent and purpose of the code creates the same effect. He said Mr.
Neier's opinion agrees with his position in this matter.
City Attorney Neier stated he felt the application of this easement
is restricted to situations where buildings are not enlarged or
built new, it only applies to existing structures. He said the
easement has the effect of effectively meeting the requirements of
the building code, which is to prevent the spread of fire and the
10' setback is specifically for that reason. There will never be
anything within 10 feet.
Craig Kerzman said two codes have to be reckoned with; 1) the Zoning
Ordinance and 2) the building codes. He said the building code
would allow a person to build on the property line, if you want
openings you have to be back 5', if you want unprotected openings
you have to be back 10 or more feet. Mr. Heinecke asked Lence what
he had done to protect those openings? Lence said the building is
6" south of the north boundary line so it is more than 10'.
Mrs. Barbee asked if someday down the line a new city attorney might
interpret this differently? City Attorney Neier stated his interepre-
tation is limited to those buildings that already exist and it only
applies to remodeling. He said there is no way to alter it. He
said if the easement is ever going to be given up, it takes the
consent of the City, and once the easement is signed nobody can
change their mind.
Mrs. Barbee asked about putting in a provision to block up the
windows if Rax ever changes their mind about the easement. Lence
WX
said lie had no problem with a provision to that effect being put in
the easement.
Mr. Heinecke said he had a problem with Lence violating the UBC.
Mr. Neier said he has filed a complaint against GKL Corporation
regarding this violation and intends to carry through with it in
City Court.
Mrs. Barbee asked if we are setting a precedent by doing this.
There was further discussion on whether or not this could create
future problems.
At this point Mr. Heinecke asked for a recess so the Board could
discuss the easement among themselves. Recessed at 10:55 A.M.
Mr. Heinecke said the easement meets the requirement of the code in
that it takes the place of the property line. He asked Mr. Kerzman
if he was opposed to the easement? He said he would not oppose the
easement, he said he believes the City has been given an adequate
guarantee if the easement is signed that nothing goes in there.
Mrs. Barbee said she would agree to the easement if there is no way
anybody can pull back.
There was a discussion of the fire safety aspect. Mr. Tillson asked
about garbage storage. Mr. Heinecke asked if the automobiles are
held back far enough in case one of them catches fire. Kerzman said
there are no restrictions on that.
At this point the Board agreed they are in accord with the easement,
contingent upon the addition of a paragraph stating that should
these or subsequent owners decide to abandon the easement the openings
must be closed up, and signing of the easement by all parties.
Hearing adjourned at 11:15 A.M.
Shirley Hughes, Recording Secretary
-3-