Every Highland Heights property owner knows that the city
has zoning laws.
Those laws are important.
When fairly interpreted and properly enforced, they protect our neighborhoods and foster high quality residential life in our city.
Those laws are important.
When fairly interpreted and properly enforced, they protect our neighborhoods and foster high quality residential life in our city.
“Setback” requirements are an important component of our
zoning laws.
They establish no-intrusion perimeters, limiting how close structures can be built or placed near property boundary lines.
Setbacks ensure that neighbors don’t intrude too closely on each other’s peace and privacy.
They establish no-intrusion perimeters, limiting how close structures can be built or placed near property boundary lines.
Setbacks ensure that neighbors don’t intrude too closely on each other’s peace and privacy.
That how they are supposed to work…..but maybe not so much when Highland Heights Law Director Tim Paluf is involved.
A SAD TALE
Neighbor disputes are awful.
They cause a lot of bad feelings and diminish the quality of residential life for everyone involved.
Inevitably, at the heart of such matters, there always seems to be someone who values their own “rights”, wants and desires above more abstract, selfless concepts like neighborliness, mutual accommodation and the greater good.
Neighbor disputes are awful.
They cause a lot of bad feelings and diminish the quality of residential life for everyone involved.
Inevitably, at the heart of such matters, there always seems to be someone who values their own “rights”, wants and desires above more abstract, selfless concepts like neighborliness, mutual accommodation and the greater good.
That observation was raised during the recent deer-feeding controversy…and I think I’m seeing it again.
A DECK IS A DECK AND
NOT A POOL---RIGHT?
The city has several ordinances that apply to swimming pools.
First, though, it’s important to understand what a “swimming pool” is.
Swimming pools are defined in § 1319.01 as:
The city has several ordinances that apply to swimming pools.
First, though, it’s important to understand what a “swimming pool” is.
Swimming pools are defined in § 1319.01 as:
“…an excavation, or depression below grade level, as well as on grade surface, designed or constructed to hold or retain water and being over eighteen inches deep at any point.”
Ordinance § 1319.05 states that swimming
pools:
“…shall not be closer than ten feet to any lot, side line or the rear line.”
The city requires all pools to be fenced.
Because they are not easily fenced, however, § 1319.03 grants an exemption to “above ground” pools:
Because they are not easily fenced, however, § 1319.03 grants an exemption to “above ground” pools:
“…if any of the following requirements are met:
(a) its access ladder can be removed when not in use;
or (b) Its access ladder can be locked in an upright position when not in use; or
(c) When a pool is enclosed by a deck and the ladder and/or stairs can block any access to the deck/pool area when not in use.”
Other sections of the zoning code deal with decks.
Decks are, according to § 1101.03(a), “structures,” and decks not attached to homes are “detached structures” under § 1101.03(g).
Ordinance §1123.18(c), which applies to all residential lots, states:
Decks are, according to § 1101.03(a), “structures,” and decks not attached to homes are “detached structures” under § 1101.03(g).
Ordinance §1123.18(c), which applies to all residential lots, states:
“…No open porch, sportcourt, platform or deck … shall be closer than forty feet to the rear lot line.”
A plain reading of these ordinances, read together, makes several
things pretty clear:
- A deck surrounding an “above ground” pool is not itself a “swimming pool” as defined in § 1319.01 because, well, a deck is not “designed or constructed to hold or retain water,”
- § 1319.03 (the fencing ordinance) refers to “decks” and “pools” separately, thereby explicitly recognizing the difference between an “above ground “swimming pool and the deck that surrounds it, and
- The only thing allowed to be within 10 feet of a property line is a “swimming pool” as defined in § 1319.01---not a deck.
In other words:
Pools (excavations or surfaces that hold water) can be as close as 10 feet from rear property lines......Decks cannot.
THE NEIGHBORHOOD POOL
WAR
In 2013, Rutland Drive homeowners obtained a permit to install an “above ground” pool in their backyard.
Lucky them.
Last year was a great year to have a pool.
In 2013, Rutland Drive homeowners obtained a permit to install an “above ground” pool in their backyard.
Lucky them.
Last year was a great year to have a pool.
This year, the homeowners apparently decided to expand their enjoyment by installing a raised deck next to their pool.
The homeowners started building the deck without obtaining a permit first
That's what started the trouble.
Neighbors became quite alarmed at both the size and location of the deck structure.
Here’s why:
Neighbors became quite alarmed at both the size and location of the deck structure.
Here’s why:
One neighbor estimates that the deck structure is 16’x40’and over 6 feet tall.
And it’s close---very, very close---to the rear yard line.
According to that neighbor:
“All the neighbors can see this from their yards and homes because it towers over privacy fences, sheds and bushes.”
The pool owners eventually applied for a permit, after several neighbors contacted
the building department inquiring about the structure.
Ironically (you'll understand the irony in a moment) I've been told that the pool owners applied for---and received---a permit to build a deck from the city.
Originally Highland Heights Building Department staff members didn’t think there was an issue with the placement of the deck.
After reexamining the issue, however, they determined that the 40 foot setback requirement set out in § §1123.18(c) applied.
As a result the city sent out this deck removal letter on May 13th:
Ironically (you'll understand the irony in a moment) I've been told that the pool owners applied for---and received---a permit to build a deck from the city.
Originally Highland Heights Building Department staff members didn’t think there was an issue with the placement of the deck.
After reexamining the issue, however, they determined that the 40 foot setback requirement set out in § §1123.18(c) applied.
As a result the city sent out this deck removal letter on May 13th:
|
Notice the statement at the end:
“This letter is to confirm that you have agreed to remove the deck within 30 days.”
Good for the pool-owning residents!
They built something before getting a permit and were willing to correct their mistake.
They built something before getting a permit and were willing to correct their mistake.
Problem Solved! Neighborhood harmony restored---Right?
Think again.
PROBLEM SOLVED….UNTIL LAW DIRECTOR TIM PALUF GETS INVOLVED
This is where the story turns bad.
On June 2nd the neighbors were notified that Law Director Tim Paluf had overturned the Building Department’s determination that the deck improperly impinged on required rear yard setback requirements.
The neighbors surmised that the pool owners had changed their mind.
PROBLEM SOLVED….UNTIL LAW DIRECTOR TIM PALUF GETS INVOLVED
This is where the story turns bad.
On June 2nd the neighbors were notified that Law Director Tim Paluf had overturned the Building Department’s determination that the deck improperly impinged on required rear yard setback requirements.
The neighbors surmised that the pool owners had changed their mind.
Paluf declared that the self-standing, detached deck structure---- built a year after the above ground pool was installed---was part of the pool itself and so could continue to loom over the neighborhood as already erected.
The neighbors started talking to Council members after receiving that news and
eventually scored a meeting with the mayor today.
The result?
The result?
Homeowners 1. Surrounding neighbors 0.
It was reported to me that Paluf was adamant in allowing the deck to stay.
Apparently that was good enough for Mayor Scott Coleman.
For now, at least, the deck stays.
THE EQUITIES
In dealing with trespass, easement and similar neighbor disputes, courts often look at the equities of the situation.
Apparently that was good enough for Mayor Scott Coleman.
For now, at least, the deck stays.
THE EQUITIES
In dealing with trespass, easement and similar neighbor disputes, courts often look at the equities of the situation.
Not only is Paluf absolutely wrong, in my opinion, in declaring that this deck is a swimming pool, i.e. an “on grade surface…constructed to hold…water,” he also has the equities wrong.
The neighbors are completely blameless.
All they want is peace and quiet and a 40 foot setback from their rear property lines…the setback that they are entitled to, by law.
This whole situation involves a self-created problem.
Unfortunately the pool-owning residents decided to build a substantial deck without obtaining a permit and without investigating whether they needed a setback variance.
All they want is peace and quiet and a 40 foot setback from their rear property lines…the setback that they are entitled to, by law.
This whole situation involves a self-created problem.
Unfortunately the pool-owning residents decided to build a substantial deck without obtaining a permit and without investigating whether they needed a setback variance.
I understand. These things happen.
But having created the problem, the pool-owning residents should make it right….
As they agreed to do.....Until apparently they didn’t
This week the Rhode Island Supreme Court ordered a homeowner to move his $1.8 million home, which had been mistakenly
erected, in part, on a neighbor’s property.
The homeowners argued that having to move the house would be an incredible and costly burden.
But right is right.
Despite the cost, the equities weighed in favor of the blameless property owner.
The house had to move.
The homeowners argued that having to move the house would be an incredible and costly burden.
But right is right.
Despite the cost, the equities weighed in favor of the blameless property owner.
The house had to move.
On Rutland Drive, the stakes are not nearly as high.
To remedy the situation, the pool owners simply need to move their deck to the
other side of the pool---away from the back property line.
Doing that is not only the right thing to do, it's the neighborly thing to do.
As the Rhode Island case shows, it’s important to make things right.
Doing that is not only the right thing to do, it's the neighborly thing to do.
As the Rhode Island case shows, it’s important to make things right.
It’s also important to have a law director who interprets and enforces the zoning code as it written….for the greater good of all, not just a select few.
