09/13/1976 Meeting - Laserfiche WebLink

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'-~ relied on the stat~nent of a city employee and it has cost him money. Nr. ,- Evans stated that if he were dealing with a private company that Mr. Peterson would have a cause of action. Nr. Evans further stated thdt he believed that what the panel had to decide was whether there was an unnecessary hardship as e deFined in 82 Am Jur 2d under Zoning and Planning, Section 272 "A hardship imposed by an act of the public authorities may under certain circumstances justify the granting of a variance to permit a non-conforming use of the premises. In this respect, good faith expenditures and reliance on an invalid permit may be considered." Mr. Evans stated that he felt this was exactly that situation. Mr. Evans further stated that Mr. Peterson's planned use of this lot was not inconsistent ~l'ith the use of the land around it. Mr. l' 'lCan stated that the Zoning Board of Appeals decided th.is issue on the tact that it did not have jurisdictio~ to say whether or not to extend a use variance to this lot. Mr. Duncan stated that he felt thai:: this Ivas the proper interpretation given to the pOl-Iers of the Zoning Board of Appeals and also to the pane.l sitting in review of their decision. This op,inion is based on the provisions of City Code 9.732 because it states the purpose of the Zoning Board of Appeals and its power to grant variances and that section (9.732) clearly states that the pot';er of the board docs not extend to use variances. Nr. Duncan further stated that in (Sect,ion) 9.734 regarding site areas, that there is no vla~' that the boa1.'d can make a determinatioIl which regulates a use variance. 1'11'. Duncan further stated on beha}f of the city that if in fact there had been a mistake by a city staff person that even if there had been a permit issued that such a decision h'ould be vo.id and subject to revocution because the people, l'lhen they have enacted a 1 al,' to impose various zoning requirements on the city, have the right to rely on the actual law as it is and everyone is presumed to know the law. Mr. Duncan stated that if the appellants have a complaint Id th the fact that the zoning Board of Appeals does not have jurisdiction, then the remedy ['lould be to go - back to the City Council to try to amend the Code so variances of that type would be a110lved. Mrs. Shirey asked if Mr. Duncan considered that the actions of a city staff member I"ould be in the category where it is in the letter of the law OI' the code book and not by what someone said. Nr. Duncan replied that ,i t had been held that the law itself governs and not the misrepresentation made by the public employee. Mr. Hamel asked for comments from the audience. Speaking from the audience ~vas Carl M. Cha pmc:m, 3958 Robin Street and Nilon r'lhi tt,ier, 3915 Robin Street, generally in Objection to the care of the Peterson property and asking that a variance not be granted because it vlOu1d generally be detr.imental to the area. Mr. McAlexander replied that Mr. Peterson was taking steps to remedy the poorly kept landscaping by investing in some landsc.lp,ing equipment, and will be notifying h.is tenilnts that if they do not keep the yards in good order tha t he ~dll do so and charge the tenants. Nr. McAlexander further stated in reply to lIr. Duncan's rebuttal regarding Section 9.732, that he was correct up to I"here he stopped reading from the Code, "The pOl.,er to grant variances does not extend to llse regu,Zations because the flexibility necessary to avo.id rosu1 ts inconsistent tvith the objectives of the zoning ordinance is provided by the conditional use provisions of the o,rdinance." e Mr. Duncan stated that the definit,ion of a "use" is provided in Sect:i.on 9.254 which states that "the purpose for vlhich land is intended or may be occupied or maintained". '+52- Minutes 9/13/76 -- 17