Harrison County board remands disputed deck variance appeal to planning commission

The Harrison County Board of Supervisors voted to send an appeal over a rear-yard deck at 15687 Perdido Drive back to the Planning Commission for further development of the record.

The appeal was filed by Nathan Branning on behalf of Adams Homes LLC after the Planning Commission denied a variance for a rear-yard setback the commission said would “cause substantial detriment to the public welfare.” William Westbrook, attorney for Adams Homes, told the board that a written objection attached to an email from opponents had not been included in the planning record until Nov. 17, which he said created a due-process problem and made it difficult for the applicant to respond at the planning hearing. “The letter…never made it into the record on appeal until I called,” Westbrook said.

Opposing counsel Brian Whitman, representing adjacent property owners, asked the board to rely on the record that existed before the Planning Commission and said Adams Homes had not met the ordinance standard for a variance. Whitman told supervisors the deck “is approximately 18 by 55 feet,” sits about “18 to 19 inches from the property line,” and that “the floor of the deck begins over my head. It is 6 feet tall,” arguing the structure substantially impairs the neighbors’ privacy and encroaches on a 15-foot setback and a 5-foot drainage easement.

The appellant’s attorney disputed some factual assertions, saying drainage issues were created earlier in the subdivision and that Adams Homes spent about $4,700 to build a drainage channel and remediate silt on the neighbors’ property. Westbrook asked the board either to remand the matter to the Planning Commission so the parties could present and test all relevant evidence, or to exclude out-of-record materials from consideration.

Board members discussed two procedural paths: (1) proceed on the limited Planning Commission record only, or (2) remand for a fuller hearing so the commission can consider the disputed materials and possible mitigations (for example, trellises, retaining walls, or deck modification). County staff cited code and building-permit language about deck exemptions; attorneys cited local ordinance language (UDC 14o5.0438) and building-code sections regarding small-deck exemptions. The board ultimately voted to remand the appeal so the Planning Commission can take additional evidence, consider alternatives, and return the item to the board.

The remand leaves in place the Planning Commission’s procedural posture and gives both sides an opportunity to supplement the record. The board asked that any new materials be placed into the Planning Commission record before the matter returns to the Board of Supervisors.