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Dublin BZA denies variance request for pergola at 9376 Nicholson Way
Summary
The Dublin Board of Zoning Appeals denied a request from David and Daryl Hopkins to allow a pergola to encroach roughly 6 feet into the rear-yard setback at 9376 Nicholson Way after staff recommended disapproval and board members concluded the variance criteria were not met.
The Dublin Board of Zoning Appeals voted to deny a nonuse area variance that would have allowed a pergola at 9376 Nicholson Way to extend into the required rear-yard setback.
Tammy Noble, a city staff member presenting the case, told the board the pergola extends about 6 feet into the rear setback and that, after reviewing the variance criteria, staff recommended disapproval. "Based on not meeting Criteria A ... we are recommending disapproval for the nonuse area variance," Noble said.
The application has a multi-year history. Attorney Thomas McCash, representing David and Daryl Hopkins, said the homeowners received approval from their homeowners association and relied on a contractor’s advice that a building permit was unnecessary. McCash said the contractor (Shade Tree Structures) later went out of business and that his clients spent about $12,000 on the pergola. "Shade Tree told them that they didn't need a building permit, so they relied upon what Shade Tree was telling them," McCash said.
McCash also argued staff has applied criteria inconsistently across similar cases and pointed to earlier staff reports and a 2021 administrative appeal and subsequent court involvement. He urged the board to treat the Hopkins case the same way as comparable approvals in the city and said the pergola has minimal impact on neighbors.
Board members questioned whether the pergola or the underlying patio was noncompliant. Noble clarified the patio was built at-grade and met setback requirements, but the pergola — as a structure — did not. City counsel read the relevant code (City of Dublin Codified Ordinances Section 153.071(b)(1)(c)), which allows low patios to encroach but explicitly states structures and accessory structures such as pergolas are not permitted to encroach into the rear setback.
During deliberations several members said they sympathized with the homeowners but were bound to the code. One committee member summarized the board’s practical problem: "Intent isn't really one of the criteria for this" and noted the owner constructed the structure without the required permit. The board then took a motion to approve the variance; during roll call votes each member present recorded a "no," leaving the motion to approve to fail and producing a denial of the requested variance (Recorded votes: Mister Murphy — No; Mister Linville — No; Miss Tysnick — No; Miss D'Alessandro — No; Mister Anderson was absent).
What it means: The Hopkins pergola must come into compliance with the zoning code. The owner may revise the structure to meet setback rules, remove it, or pursue other lawful remedies. McCash noted the case’s long procedural history and objections to mid-process code changes, and staff reminded the board decisions must be made under the current code language.
Next steps: The decision stands as a denial by the Board of Zoning Appeals. The applicants may pursue available administrative or legal options under the city code and state law, or modify and reapply consistent with BZA rules and any applicable waiting periods for resubmittal.
