Planning Commission tells owner to remove carport

Scott Swanson

The Sweet Home Planning Commission on Jan. 3 denied a Long Street couple’s request for a variance to allow an already-constructed carport to remain on their property.

James Fay and Betty Crosbie of 4501 Long Street, on the corner of 45th Avenue, requested a variance from the city’s rear setback requirement of 15 feet for their carport, which is located right on the property line.

Fay told the commission that he put up the carport next to his house, which faces 45th Avenue, to protect his diesel truck, which is too large to fit in his garage, and that he was told by “some people” that he didn’t need a permit because the structure is open on three sides. He said he positioned the carport next to his garage for convenience and because it was less visible from Long Street and didn’t interfere with neighbors’ views.

Planning Director Carol Lewis said the carport was reported to the city and Fay was told he either had to tear it down or apply for a variance.

Lewis told commissioners that the two-car garage and another building erected on the 20,430-square-foot property both were permitted but the required hard-surfacing for those permits was never completed, even though they were signed off by a building inspector in 1998 and 2001. She said the property also had drainage issues related to the carport when a code enforcement officer visited the site.

Fay told commissioners he had installed gutters and a downspout to direct water to a drainage ditch on 45th Avenue to solve the drainage problems.

He said he was never notified by the city that the incomplete hard-surfacing requirements were a problem.

Lewis noted that Fay had submitted 22 photos of carport-type structures on Long, Elm, Nandina, in the avenues, and other locations around the city, which she said have been turned over to the city code enforcement officer for “review.”

Commissioner Henry Wolthuis said that the city needs to pursue the issue of non-compliant structures.

“The taking of these photos has alerted me to be a little more attentive to looking around town,” he said. “I still see others built the same way, (close) to the property line, that aren’t even in these photos. I think the problem is greater than what we realized. Many in photos I’m acquainted with because I’m kind of in that neighborhood and I walk and drive and I see the same ones.”

“I would probably wager that the majority in these pictures were built without permits,” said Chairman Dick Meyers.

“I’m pretty confident that they were,” Wothuis said. “I think it doesn’t take much imagination to determine that there are others built without (permits). I think it’s alerted us to a big problem.”

“I think it will be a bigger problem if you try to go back and start inspecting all those places,” he said

Two neighbors and a friend spoke in support of Fay’s request.

“I think the structure looks fine from my house,” said Steve Nixon of 4509 Long St., to the east of Fay’s property. “I have to look at it all the time. It’s well-built. It looks like it drains just fine. I don’t see any issues with it.”

Lyle Burnham, of 1161 45th Ave., the neighbor whose property is closest to the carport in question, said he was bothered by a floodlight on Fay’s house and the noise and smell created by Fay’s diesel pick-up truck.

He said the carport replaced another, which was falling down, and when the new one was being built he was told by the worker erecting the structure that it was not permitted.

“He’s got plenty of room, other places on his lot, to build carports much, much bigger than this,” Burnham said. “I don’t see any reason why he has to cram it up next to the fence and our backyard. I just don’t like the noise, I don’t like the smell. He’s got a place for his RV, boats and stuff. Put his pickup in with them.”

Commission members, clearly uncomfortable with the idea of forcing Fay to move the carport, discussed a variety of options such as setting a condition for the variance that Fay would have to finish the hard-surfacing that hadn’t been completed.

They noted several times that they were forced to stick to the criteria established by the city’s zoning ordinance if they were to grant a variance:

n that extraordinary conditions such as lot size or shape or typography, over which the owner has no control, apply to the property;

n that the variance is necessary to give the applicant the same property rights that other property owners in the vicinity possess;

n that the variance would not be “materially detrimental” to the lot in question, neighboring lots, or otherwise conflict with the city’s general plan or policies; and

n that the variance would represent the least action necessary to alleviate hardship.

“I don’t see that the variance is necessary for the preservation of the property rights of the applicant because it could be built somewhere else,” said Commissioner Mike Adams. “I don’t see how his property right is substantially different than any other neighbor who has a 20,000- or 15,000-square-feet-sized property. I don’t see lot size, shape, topography or other circumstances.”

He praised Fay and Crosbie for doing the right thing.

“You at some point realized you needed a permit, and you came in here and tried to get a variance. And that’s commendable. “

Meyers and Wolthius noted that even if the commission were to grant a land-use variance, the city building official could still deny a permit based on building itself.

“A variance would not be an outright go-ahead-and-do-it,” Meyers said. “You still have to go through the process.”

Commissioners voted three times before the variance was officially denied.

Wolthius made a motion to approve the variance with the condition that at least one of the driveways be hard-surfaced in accordance with city requirements. The commission deadlocked as he and Al Culver voted in favor, Adams and Meyers opposed, and Greg Stephens abstained.

After more discussion about whether moving the carport would represent a hardship per the ordinance’s requirements and what kind of precedent might be set if the variance were approved, Lewis said she was worried about the commission “setting a precedent that if you build an illegal structure, it’s going to become a hardship that we aren’t going to address.

“Setting a precedent based on a hardship being the removal of an illegal structure gives me a little bit of concern.”

Meyers cited three specific examples in which commissioners had forced people to take down unpermitted structures, including a garage on Elm Street where, he said, the original footings stick out three feet past the current structure because the garage was three feet too long.

“I think the Sweet Home Planning Commission is one of most lenient in the state, that allow people to do what they want on their property,” he said. “But we have to find a way to do it. And the criteria is pretty straightforward.”

On a second vote on Wolthius’ motion, Wolthius was the lone “yes,” with Adams, Culver and Meyers opposing the variance and Stephens again abstaining.

Adams made a motion to deny the variance because the request did not meet the criteria laid out in the city ordinance. All but Wolthius voted in support.

In other action, the commission:

n Unanimously elected Meyers as chairman.

n Elected Wolthuis as vice-chairman.