Common sense doesn't trump building laws

An editorial in the Coeur d’Alene Press regarding a height variance generated letters to the editor. The problem is when roof trusses were placed on a structure, the building was 10 inches too high. When the builder realized it, he contacted the city.

City staff has no legal authority to approve a height variance. The options are seeking a variance from the code requirement or comply. A variance was the option selected.

Planning commission actions are quasi-judicial, which is like a court action. Zoning variances generally are defined by court decisions. A variance to be approved must result due to a “legal zoning hardship,” a substantial barrier. A hardship for example is: a property has a small creek crossing through it and requires a structure to be placed too close to a property line, requiring a setback variance. The hardship must be due to the land and not an error.

Having read about this incident, I believe it was an error. Roof trusses are generally fabricated off site, delivered to the site and placed on the roof. Visually determining if the pitch of the roof trusses is correct is difficult.

Residents’ letters said common sense for this minor variance should have prevailed. Because government actions are often criticized, it is important that we understand what is allowed by law. The relief for the owner or builder was to seek a variance. The variance by law requires the showing of a hardship to the land (the creek example) to be approved. An error is not a legal zoning hardship.

If the action was intentional (which is not the case), would sympathy say forget it or would common sense say comply with the law? If the Planning Director said just forget it, she would be violating the law. What if the neighbors were outraged over the building and saw an opportunity to challenge the height? The neighbors would want the law to be followed by the planning commission. Our government officials must abide by the laws that are imposed on us.

Common sense may say something needs to be done for problems like this. Maybe a change in procedures, whereby the builder or inspector could more readily see the discrepancy? This is a most unusual incident. Do we redo procedures for any unlikely occurrence? How about the definition of height? The code defines height as the highest point of the roof. Perhaps the average height of the roof would help. The question is how many definitions must be rewritten in anticipation of an error? If it’s not an honest mistake, then we probably don’t want to approve it.

I believe that people generally try to do things correctly. Sometimes people do the wrong thing, stupid things, even dishonest things. We may disagree with some government actions, but it is important to understand the reason. Good people may do things that we disagree with, but we need to understand why. We should not issue a blanket indictment simply because we disagree.

I feel badly for the owner, the builder and planning commissioners who voted to deny the variance request. I believe they all acted properly. I would like to think that somehow a legal reason to approve it exists. The problem is there isn’t one that will meet the definition of a legal zoning hardship.

Knowing why it was denied rather than condemning the actions of others is the correct process to follow. Developing common sense solutions may be the better action. The ability to foresee errors is beyond my capabilities. I will gladly listen, but must defer to others for that.

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Phil Ward, of Coeur d’Alene, is a member of the American Institute of Certified Planners. His career of more than 40 years included both the public and private sectors and involved consulting on land use issues primarily for large-scale development in southeast Florida.