I wrote about the “Natural Grade” discussion at the June meeting of the Culver Plan Commission here. There was a follow-up work session meeting on July 14th where things took a bizarre turn. While the lawyer for the property owner said that the definition of natural grade in the zoning ordinance left little room for interpretation at the previous meeting, at the work session, two of the commissioners decided to take the property owner’s side with an interpretation that basically ignored the intent of the ordinance and any kind of “reasonable person” interpretation. This revised interpretation makes the entire definition worthless until the Plan Commission makes changes to it.
This definition in the zoning ordinance has been in place for decades. The intent of the ordinance was to establish grade prior to the start of construction, based on the elevation across the site prior to construction. This is how it has been interpreted and implemented throughout those years. There is no question that this was the intent. This seemed to be backed up by the Town’s attorney at the June meeting.
The argument made on the 14th was: 1) Natural Grade is a relative term and didn’t include a time stamp, thus it cannot be determined until a Building Permit application is submitted. 2) Excavation is not specifically defined as construction under the ordinance and doesn’t require a Building Permit. 3) Any excavation done before the Building Permit Application creates new Natural Grade for the site. And not said, but the implied direction to the property owner was, quickly haul in 100s of cubic yards of dirt and submit your application based on the new grade as quickly as possible, so the Plan Commission does not have time to fix this unintended interpretation before you get approved.
Personally, I think this is ridiculous. Everyone, including the property owner’s attorney, knew what the intent of the ordinance was. (That attorney didn’t even make this leap, until it was argued by a commissioner.) It also seems totally unreasonable for commission members to introduce arguments against the ordinance during an appeal. It was an appeal of the Building Commissioner’s decision based on the ordinance with specific requirements of what must be presented in that appeal. All that got thrown out, along with the ordinance’s intent. Lawyers be Lawyering…
The Plan Commission needs to move on this quickly. I think the quickest, easiest fix would be to require excavation of any kind to require a building permit. That’s off the top of my head and would need further examination. This would at least allow some oversight of grading which has come up recently. Some additional definitions and rules would have to be established around that.
In the meantime, I’m going to tell the NFP that is working on the Culver Theater to bring in 15 feet of fill. The ordinance has an option to set natural grade based on the existing building before demolition, but it’s not required. I would bet dollars to donuts that it wasn’t done. The theater plans to request a variance for an elevator shaft that would extend the highest point to 40 feet above the existing sidewalk. (Maybe Bennetts should tear down their building and do this too.) Since they’re allowed to expose 15′ below established natural grade and 35′ above it, all they have to do is fill the site first. 15′ of fill would give them maximum optionality…