Appeals officer hears arguments in Chris Gardner setback variance; decision due within a week

Appeals and Variance Hearing Officer Tim Pack heard oral argument March 31 on Chris Gardner’s request for a variance to the city’s setback rules. Pack opened the record, received appearances from city counsel and staff, heard extended argument from Gardner’s lawyer, Chad Hutchins, and from city counsel Spencer D'Shane, and said he would issue a written decision within a week.

Hutchins told the hearing the firm stepped in late and asked the officer to rely on the submitted briefs. He said Gardner “relied on that individual's knowledge and expertise” when the contractor represented himself as licensed and that the resulting encroachment is a mistake of fact rather than willful noncompliance. Hutchins argued the structure—about "just over 400 square feet"—produced both economic and emotional harms for Gardner and cited documentation from Gardner’s therapist. “There is that economic aspect, but there is more than just the economics to it,” Hutchins said, describing the building as part of Gardner’s treatment and daily life.

City counsel Spencer D'Shane urged the opposite view, saying variances are “an extraordinary remedy that requires extraordinary circumstances” and that the statutory and case-law tests focus on property, not personal circumstances. D'Shane noted Draper’s code treats accessory structures under 200 square feet differently, and said this building exceeds that threshold and therefore must meet setbacks. He cited Burmese v. Summit County and other precedent to argue past non-enforcement does not bar current enforcement, and asked that the variance be denied.

Pack said the decision is difficult, that his authority to grant variances is narrow, and that he will consider the written record and issue his determination in the coming week. The hearing then closed.