The June Culver Plan Commission was an interesting one. Most of the agenda was thrown out due to an appeal against the decision of the building permit on the establishment of “Natural Grade”. I put Natural Grade in quotes because that’s the way it appears in the ordinance, which was stated that way intentionally when it was written. So, I mostly sat quietly at the meeting, while biting my tongue. Here’s some history, from memory, of my involvement and how we got to where we are today. This tends toward personal rant, so be aware going in.
Somewhere around six acting Culver Building Commissioners ago, then Building Commissioner, Russ Mason, asked me to write something that defined the starting elevation on a site when determining maximum building heights. This had particularly come up around some of the lake lots with large slopes. At that time, the zoning ordinance definition of Natural Grade was vague. Builders would argue to use the highest point on the lot as zero for measuring height, but then show a house down the slope and include walk-out basements creating houses fully 35’ above the top of the slope, but dug out to create one or two stories further down facing the lake.
In discussions with the Plan Commission, it was determined that the base point for natural grade should be the center of the building, from which there should be no more than 35’ in height above that point and no more than 15’ of exposed structure below that point.
The methodology I came up with for this was fairly simple and covered options for new construction on undisturbed lots and for construction on lots where existing structures were to be removed. It includes illustrations to demonstrate how it should be done. The methodology for alternate interpretations was more rigorous. This was intentional as all involved felt like there should be significant effort put in if the decision of the Building Commissioner was to be overturned by the Plan Commission. It seemed likely that if the more rigorous information proved out a different number, then the Building Commissioner would acquiesce before it was pushed up the chain of command.
Why did this go to the Plan Commission rather than the BZA? The Plan Commission determined that this was an appeal of the Building Commissioners decision, not an appeal of the ordinance. This was an appeal of site condition determinations, not an appeal of ordinance requirements.
Based on my knowledge of the ordinance, the June meeting was quite interesting. I started out pleased to hear the attorney representing the property owner say the methodology in the ordinance didn’t allow for much interpretation. Yep. Intentionally. But then he glossed over the secondary methodology required for an appeal and basically said the Plan Commission could ignore the ordinance stipulations and set natural grade wherever they liked! Their request was to set Natural Grade at ~7’ above what was determined by the Building Commissioner, with no evidence that the previous determination was done incorrectly!
From there the presentation was more like a BZA hearing, discussing how it affected the neighbors, aesthetics, hardships that would force a single-story home in lieu of a two-story home. All this going back to the assumption that the Plan Commission could determine whatever Natural Grade they wanted. Again, despite specific methods for determining Natural Grade laid out in the ordinance. A couple commissioners then got off track, asking questions about constructability and building engineering, which are not in their purview. There was also a question about the ambiguity of the word “Natural” and how far back in history to go to figure that out…
In the end, the hearing was continued to the next meeting with a work session on the topic in between. After the petitioner left, the Town’s attorney, noted while the petitioner’s attorney was correct, i.e. the Plan Commission could set the grade wherever they liked, but they would be doing so without the petitioner following any of the methodology listed in the ordinance to make the appeal. And, while a court challenge was unlikely, going counter to their own ordinance, based on their feelings on the issue, wouldn’t past muster with a judge. He also noted that while there were no objections expressed at the meeting, there wasn’t the same notifications for this hearing that there would be for a BZA hearing. Considering that there were already disputes with neighbors regarding access to this site, it seems prudent to be sure. The Town Manager, currently acting as Building Commissioner, recognized this and requested the commissioners filled out findings of fact, much like they would if it were a BZA hearing.
In my mind, the questions about the ambiguity of the word “Natural” were a bit odd when the ordinance specifically referenced how Natural Grade was defined. The only thing that came up where it appeared that the ordinance was lacking, was that there is no accounting for fill on a site before Natural Grade is determined and a building permit is requested. At the time this was written, the Plan Commission felt this was covered by the requirement to obtain an Erosion Control Permit for any site work disturbing more than 500 square feet. This would have alerted the Building Commissioner to work being proposed and would have created documentation of changes. Over the years, that portion of the ordinance has rarely been enforced and definitely not documented in a way that would prevent this situation.
There is no doubt that this site is challenging. The previous Building Commissioner started this conversation with the property owner and had already raised the natural grade elevation up to the minimum elevation required above lake level due to a depression on the site. I’m not sure that they shouldn’t be granted some relief on this. There is significant grade difference between this site and the adjacent site, which has been filled. There are some significant drainage challenges. But those things are better addressed at the BZA with a height variance request.
I’ve discussed institutional memory here before. This is a different Building Commissioner and all different Plan Commissioners. No one is on the Plan Commission that knows how or why this was put in place in its current form. As they were advised by the Town’s attorney, there is nothing to stop them from rewriting this portion of the ordinance, but I feel like they are committed to uphold the current version until that time. Hopefully they take the time to read this section of the ordinance before their work session. They need to have an understanding of what it does. As the appeal attorney said, it leaves little room for interpretation. Intentionally. It has served the community well for close to two decades.