Board of adjustment denies variance

After two meetings on the subject, the Washington Board of Adjustment voted unanimously to deny a request for a variance on a newly built duplex at the corner of West Fifth Street and North Avenue D.

City officials said the lot, which does not have the square footage required for a duplex under city code, was not legally habitable without acquiring a variance or somehow adding square footage.

“If he does not have the variance, he does not meet the code requirements,” City Attorney Kevin Olson said. “At that point he wouldn’t be able to occupy the house.”

Board members said the decision put them in a difficult spot.

“The ordinance is designed to not get to this point. We shouldn’t have to get to this point where we look at these faces and say, ‘What are you going to do for us?’” Board Chair Charla Howard said. ”There should’ve been a procedure followed, it wasn’t followed, now we’re here trying to give the ultimate answer … We’ve been handed a very difficult decision, and it’s not fun for any of us.“

Some said they would have been more comfortable granting the variance if it had come up before construction began.

“To me, this property meets the purpose of this board to a T, but not at the point we’re at right now, it should have been preconstruction,” Board Vice Chair Jim Zieglowsky said. “I don’t want, as a board member, the burden of someone saying, ‘I’ve invested all of this money, I need you to vote in my favor,’ that’s the burden I don’t appreciate.”

Ellison Ruen, a legal representative for LKR, said Lepic had no opportunity to approach the board until it was too late.

“They were granted a building permit in Jan. 2021,” she said. “Matt had no reason to come and ask for a variance prior to this point because he already had a permit, he had a green light to go ahead and do all of this … Matt would’ve had no reason to come forward before now when the building was built, because he didn’t know there was any red tape he was crossing.”

Zieglowsky said he was not persuaded by that reasoning.

“I can’t accept that ignorance is an excuse,” he said. “That is something that is outside of our board’s control. I sympathize, I truly sympathize, but that is not anything that I, as a board member, can act on, because that doesn’t have anything to do with the set of questions that we have.”

Chris Linnenkamp, the contractor who built the house, said he had permission to build before acquiring the permit.

“I went there and I laid the house out, we discussed things, and I was told to proceed,” he said. “It was not being disrespectful of the law, and not saying ‘I’m going to build this whether you like it or not,’ … As a builder, I depend on someone else telling me, ‘You’re not following all the rules.’”

Board Member John Greener, among others, took issue with that process. While the board was advised they would not be held to legal precedent, they worried about setting an expectation for the community.

“They built the house, and then came for the proper permits and everything,” Greener said. “What if we allow that? I mean, they could build a pool building in my backyard and open a gas station and then say, ‘It’s already there, what do you want me to do? Tear it down?’ And then we’re stuck.”

While they said at least some blame could fall on the city, board members said fixing mistakes by city personnel was not their responsibility.

“The process was flawed, we’re here because of a flawed process,” Zieglowsky said. “But I walk away from this saying, ‘That’s the city office’s responsibility, to fix that flawed process.’ … at the point we’re at here, I don’t think we necessarily get to look at the flawed process. I think that’s for other people within the city.”

As for LKR’s next steps, there are a few paths forward that don’t involve demolishing the house.

Washington County Conservation Board Executive Director Zach Rozmus said returning to the board for another shot at an easement was a possibility, though he couldn’t guarantee it would succeed

“The only thing I’ll publicly comment is Matt and I talked earlier today and did ask about us putting it on our next agenda,” he said. “At this time, the board’s made a decision on it, but we were open to the idea (to) put it back on the agenda. I think it’s part of serving the public, it’s no different than any other issue, if there is an agenda item that someone requests. I think there could be future discussions, but ultimately they have made a decision.”

Another avenue would be to seek an appeal, taking the variance to the county court.

“They do have standing, if they wanted to challenge your decision, they would have the opportunity to file a case against the board of adjustment,” Kevin Olson said. “It’s not personally against you. In theory it’s the city that would defend the case, but yes, he would have standing to challenge your decision.”

Matt Lepic did not respond to a request for comment.

Comments: Kalen.McCain@southeastiowaunion.com