Agenda - Planning Commission - 03/05/2009

Home

. Zoning Bulletin February 10,20091 Volume 31 No.3 Ultimately, the City's Historic Preservation Advisory Committee (the "Historic Committee") and the town council.(the "City") approved the permit applications, and the City issued permits in June, 1999. As approved, in accordance with the plot-plan drawing incorporated into the permits, Olsen's house was to be located 25 feet from the lot line to the south and 35 feet from the lot line to the east. Also, the fac;ade of Olsen's house was to have the first floor extend six feet further to the front than the second and was to be covered with a shed roof. However, as construction proceeded the City. determiried that the general structure of the house as constructed violated the permits in that: (1) the house was actually located 7 feet from the south lot line, and approximately 22 feet from the east lot line; and (2) the second floor of the house was not set in six feet from the first floor. The City ordered Olsen and Mason to cease construction and later revoked the building permits. It then filed a complaint and application for preliminary injunction in the District Court. It asked the court to prohibit further construction on the house. Finding there were no material issues of fact in dispute, and deciding the case on the law alone, the court issued summary judgment for the City.It also granted a permanent injunction, restraining further construc- tion on the house. It ordered Olsen and Mason to remove the structure from the Property and re-contour the Property to its preconstruction ap- pearance and grade. Olsen and Mason appealed. DECISION: Affirmed. Agreeing with the City's allegations, the Supreme Court of Montana held that the general structure of Olsen's house violated: (1) the permit requirements regarding design and struc1me of the front fac;ade; and (2) the permits' setback requirements. As to the fac;ade issue, the court conclude,d that since it was undisput- ed that the house was not constructed in accordance with the permits, the house as built violated the permit requirements. With regard to the setback issue, in their defense, Olsen and Mason relied heavily on City ordinances regulating setbacks in various areas of the City. They argued that the location of Olsen's house met those set- back requirements. Alternatively, they argued that the ordinances' set- back requirements were ambiguous. The court found their argument to be irrelevant. The court emphasized that Olsen and Mason and the City agreed that the development and site zoning permits, including drawings submitted with the permit applications, controlled as to the location, size, and configuration of the house to be built. Therefore, to the extent that any requirement in the permits' accompanying documents was. at variance with the provisions of the Ordinance or other City ordinances, the provisions of the permits controlled. Since Olsen's house was not set- @ 2009 Thomson Reuters 11 101