Agenda - Planning Commission - 01/04/2000

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Page 8 -- October 25, i999 z,g, the companies violated those conditions, the lower court should have ordered the companies to stop using the private road and to remove it. Citation: Town of Grand Chute v. U.& Paper Converter~ Inc., Court of Appeals of Wisconsin, Dist. 3, No. 98-2797 (1999). Height Requirement-- Architect measures base elevation from wrong point DELAWARE (7/19/99) -- The Hellingses owned property in a coastal region in the city of Lewes. The parcel was in an R-2 Residential Zone. The city zoning regulations set a maximum height requirement for build- ings in R-2 zones. According to the regulations, the highest point of the roof couldn't exceed 34 feet, as measured from a point where the center line of the building intersects with the center line of the adjacent street. The owners planned to build a house on their property. Before construc- tion, a surveyor gave them a certificate of elevation correctly setting the base elevation at 9.8 feet. The certificate did not call attention to any potential height violation. When drawing up the plans for the house, the architect failed to take into account the regulation requiring elevation to be measured from the center line of the street. The architect drew the plans based on the existing grade and set the foot base elevation at 10.4 feet. The city i"sued a building permit based on the certificate of elevation and the building lz[ans. The house was built with a .4-foot height violation. The building inspector notified the owners of the violation, and they applied for a variance. The board of adjustment denied the variance request, holding the owners failed to show unnecessary hardship. The owners appealed to court. The court determined the board applied the wrong standard. According to the court, the board should have applied the more lenient "exceptional practi- cal difficulty" standard. However, the court found the owners couldn't meet the more lenient standard because their hardship was self-imposed. The court therefore afffrrmed the board's decision... - The owners appealed, arguing they met the more lenient standard set out by the trial court. They also argued the court should adopt a new standard allowing variances to "innocent homeowners whose houses are constructed with minor dimensional violations." DECISION: Reversed and returned to the hoard. The court overstepped its authority in making its decision. Though the trial court may have ~orrectly determined the board applied the wrong legal standard, it had no authority to review the evidence and apply the correct standard. Once the court determined the board applied the wrong stan- dard, it should have vacated the board's decision and returned the case to the board. This case had to be returned to the lower court to reverse and vacate the board's decision. Citation: Hellings v. Cit~ of Lewes Board of Adjustment, Supreme Court of Delaware, No. 35, 1999.