Board of Adjustment denies variance for oversized accessory building, 3-2

The Board of Adjustment on a split 3-2 vote denied a variance request from property owner Kevin Lang for an accessory building that board members and neighbors said violates rear-setback and height rules in the city’s Unified Development Code.

The decision came after about 27 minutes of public comment and board discussion during which neighbors described the completed structure as visually overwhelming and raising privacy concerns, staff said the building still encroached the required rear setback, and the applicant said he had attempted post-permit modifications to reduce impacts.

The dispute centers on the rear setback required by the Unified Development Code and an additional setback requirement tied to building height. Board staff summarized the rule on the record: the minimum rear setback is 15 feet, with an additional 1 foot of setback required for each foot of height above 10 feet. Board staff member Mitchell told the board, “Based on the information that we have currently, there still is going to be an encroachment…because there is the setback and then there’s also the per-height” requirement.

Kevin Lang, the applicant, said he originally applied for a larger footprint, reduced the plan after permit review and built the structure after obtaining a building permit. Lang told the board he had agreed with the city to remove a dormer on the west side and convert a gable dormer to a hip roof to reduce the apparent height; he said the change “puts it at a 12 foot offset, 12 foot height” at that portion of the building. Lang also said his lot sits roughly 6½ feet higher than neighboring yards, which affects how large the building appears from adjacent properties.

Neighbors said the modifications do not correct the setback violation and raised privacy concerns about windows in the loft. Neighbor Tom Rickey, who said his property backs up to the applicant’s lot, told the board, “Taking that dormer off does nothing but get rid of the window that looks into my neighbor’s yard. It doesn’t change the footprint of that building, or the setback of that building in any way.” Rickey also pointed to permit and inspection records he said showed the encroachment was visible during construction.

Board members said they found the permit-and-inspection timeline and the completed condition of the building troubling, but disagreed about whether to require the applicant to alter or remove built work. Chairman Smith said he was “sympathetic to the neighbors” and added he had “no desire, personally, to see the city go to court over this.” Board staff advised the board that if they denied the variance, the applicant’s next recourse would be to appeal to district court.

During discussion, one speaker noted the city had offered to contribute $25,000 toward modifications. The applicant also proposed planting tall, columnar trees to reduce visual impact; he said proposed trees would reach about 12 to 16 feet.

After discussion, a motion to disapprove the variance carried by a vote of 3 in favor and 2 against. The transcript records Chairman Smith voting yes, board member Floyd voting yes, and staff counted three yes votes total; Stacy and Schaller were recorded voting no. The board did not adopt additional conditions or direct staff to approve an amended plan at that meeting. The applicant may submit a redesigned proposal to the board for consideration or pursue an appeal in district court.

The decision resolves the immediate request but leaves open potential follow-up: the applicant may return with revised plans, the city may undertake corrective permits or inspections, and neighbors may pursue legal remedies. No enforcement timetable or specific remedial steps were adopted during the meeting.