Builder Might Have to Move Partly-Built Fox Pointe House

September 12, 2013

By Ann Wishart
The house being built next door to Arthur and Stacie Kimpton’s home on Fox Pointe Drive is too close for comfort and should be moved, the couple said last Tuesday.
All members of the City of Chardon Planning Commission and the city law director agreed with the Kimptons and denied a variance request made by Fino-more Custom Homes of Mentor.
The variance regarding a side lot setback would have allowed continued construction of the neighboring house at the intersection of Fox Pointe Drive and Squires Lane.
The corner of the house under construction at 117 Fox Pointe is less than nine feet from the corner of the Kimptons’ house and about eight feet from the shared property line.
The subdivision minimum setback between two side walls is 15 feet from the lot line. Each parcel in the subdivision has a zero-foot setback on one sideline and a 15-foot setback on the other.
The variance request hearing lasted well over an hour and included testimony from the Kimptons and their neighbors, all concerned with the potential devaluation of the couple’s property and that of others in the Fox Pointe subdivision if the house was to be completed as it stands, too close to its neighbor.
Art said he and Stacie moved to the subdivision eight years ago when there were seven vacant lots there, one next door to them.
In the Beginning …
Shortly after excavation began the end of July 2013, Art said he was alarmed and when the foundation and basement walls were poured July 27 and 28, he took pictures.
On Aug. 5, he called the city con-cerned about zoning restrictions and was told his call would be returned. When the call was not returned two days later, he called again and left a message.
Aug. 13, City Planning and Zoning Administrator Steve Yaney visited the site and agreed there was a problem with the zoning, Art said.
“(Yaney) said, ‘This should never have been approved,'” he told the commission.
Later, Yaney offered to draw up landscaping plans to minimize the problem, but Art said that is not a solution he and Stacie can entertain and they will not sign off on the variance needed.
By then, the building had been framed in and was waiting on trusses, windows and doors. Art’s objections were noted and a stop work order was posted.
On Aug. 16, the builder received permission from the city to close up the house by sheeting and felting the roof and putting in doors and windows to keep the elements out.
“Every day we waited, the further along the house got,” Art said last Tuesday.
Meeting With City Officials
Art left messages that day for all council members, according to his notes, and spoke with a few, then met with a variety of city officials and council members on Aug. 19.
After a crash course on zoning, he said he went online and verified having two houses so close together decreases the value of both and may make them hard to sell.
Besides the value, the Kimptons are concerned about safety, feeling fire would spread easily from one building to another at such close quarters.
Victor Finomore, with attorney Dennis Ibold of Chardon at his side, objected that the city zoning department approved the plans for the ranch-type house, never questioning the over-reaching corner.
Houses in Fox Pointe subdivision have values ranging from $235,000 to $265,000, he said. To move the house is impractical.
“The house can’t be moved without huge expense,” he said, adding cutting off the offending corner would damage the architectural integrity of the new home.
The truncated corner would be visible from Squires Lane so the neighbors would still not be happy, he said.
House Moving Complications
Moving the house would entail demolishing the existing foundation and basement walls then pouring others in a different location. If the house is moved, another variance would be needed for the far property line, Finomore said.
“We don’t like being in this predicament,” he said, adding his office thought when the plans were approved by the city, they were good to go.
The Kimptons’ attorney, Randy Klammer of Mentor, summed up their legal argument.
“The underlying issue is that the building clearly violates the law,” he said.
Special conditions are needed for a variance and the applicants don’t meet them, he said.
There are no physical characteristics, such as a wetlands or waterway, that keep Finomore from building within the setbacks of the property. Finomore’s problems do not fulfill the requirements for a variance.
“Practical difficulty can’t be used to grant a variance,” Klammer said. “There’s no justification for an area variance.”
The fact the architect, surveyor and others ignored the 15-foot sideline setback regulation is not an excuse, he said.
“The cost to the builder is not an excuse for a variance. The mistake occurred because of Mr. Finomore,” Klammer said, adding there’s nothing the commission can do but deny the variance.
“How do we reconcile granting a variance to correct a mistake?” asked commission member and Chardon Mayor Phil King, who added Finomore’s architect made the mistake. Finomore’s attorney put the blame on the city.
“We rely on the city to look at the plan and say, ‘Yes, this works,'” Ibold said.
Opposition is the Key
City Solicitor Jim Gillette said the city can grant a variance to correct a mistake, but there are circumstances in this case that preclude that solution.
“There is a difference. In those cases, to my recollection, there was no opposition” to granting a variance, he said.
Gillett reviewed the conditions under which an area variance may be issued and said the only one in Finomore’s favor would be if he will not be able to make a reasonable return on the property without the variance.
“This is a tough one,” King said, adding it would be easier to grant the variance due to a mistake.
“But that would undermine the spirit and intent of the zoning resolution,” he said. “(With) all the evidence and testimony, I can’t approve the variance.”
Commission Chairman Ken Miller said he’d hoped the two parties could negotiate a settlement, but due to the preponderance of evidence, the commission probably should not grant the variance.
“I did look at the site. If I were the homeowner next door, I’d be talking to this group just as (Kimpton) did,” King said.
The commission voted unanimously to deny the variance after nearly two hours of discussion.
After the meeting, Ibold said Finomore’s next step is uncertain. Appealing the commission’s decision to the Geauga County Court of Common Pleas would be one possibility, Gillette said.
“We have to figure out what we’re going to do,” Finomore said.