Yet Another Misstep By The ZBA And Another Neighborhood Suffers

Many of you may recall the notorious “virtual” barn rehab on Murphy Lane that was initially approved by the ZBA and then halted.  The landowner had assured the ZBA that they had no intention of tearing the barn down when they got a series of variances and then tore it down.  The issue is still in the courts.

Now we have another example of the same kind of abuse for a new structure within a stone’s throw of the barn.  Here again we have an applicant leaving out key information before the ZBA and then, after getting approval, proceeding to change their plan without going back to the ZBA.  Of particular note in this case was that a member of the board actually raised the question about stipulating in the approval a limit to insure that there were no problems.  Consistent with the ZBA, a majority dismissed this concern.  This decision has had serious consequences for the garage’s neighbors.

The owners of 66 White Street submitted an application for a variance for a garage to the Zoning Board of Appeals to be built as an accessory building on their lot.

In the course of discussing the application at the December 19^th meeting, board member Cheryl Grey asked, “Do we have to state the second story is [not] supposed to be finished into a habitable space with a bath or shower?” 

She is then assured by Chairman William Moore that this is unnecessary because the garage is not to be habitable.  Other members of the ZBA chimed in with similar sentiments.  No action was taken to stipulate any limits.

Fast forward to the construction of the garage. The contractor starts digging conduits from the house to the garage for plumbing, sewer, and power.  This was not included in the plan submitted to the ZBA  upon which the variance was granted.  A neighbor, observing this, contacts the building inspector’s office.  The building inspector comes out and is told by the contractor that the utilities are for a bathroom [the very convenience the board member was concerned about] that may be built in the future.  The building inspector cites the contractor for doing work without a plumbing permit and requires him to provide plans for this future bathroom.  He issues a stop work order.

The contractor then applies for the plumbing permit and provides the plans for the bathroom and the stop work order is lifted.

These are pictures of the garage under construction.  One might ask, why are they putting a bathroom into a garage that is not supposed to be “habitable” and that is only a few feet from the house?  Consider the size of the second floor of this garage.  Do you think the owner might have greater plans for this building?  With this bathroom might they create a summer rental?

The neighbors complained to the Mayor’s office.  The building department is under the Mayor’s authority.  Steve Shaw, the building inspector, responds to the Mayor’s office’s inquiry arguing that his approval of the utilities and the bathroom is  appropriate.

The following is Mr. Shaw’s response to the Mayor’s office along with a critique provided by a neighbor with considerable technical knowledge of development issues:

[Shaw] There has been much discussion about the right of a homeowner to put a bathroom into an accessory structure on their property. I would maintain that the relevant points of this issue hinge on two things, HABITABLE/LIVING SPACE and USE.

[analysis] Look, we like our neighbors and we don’t want to create problems yet we are now forced to intervene to be sure this garage does not become living (inhabited) space which is not allowed per the zoning code.

I respectfully disagree in terms of the initial relevant points.  This problem started with an application that failed to disclose to the zoning board the full intent of use and failed to show the planned water, sewer, and other infrastructure that was installed (without permits) minutes after the building inspector left the site after approving the foundation to be backfilled.

How can the project be issued plumbing permits after plumbing was installed without a permit and after the fact that the project plans hid/did not include this intention? Why was forgiveness granted rather than fines and revocation of permits? Further the project plans did not show plumbing and when the ZBA discussed the proposed stipulation that no plumbing/no sewer be permitted, the ZBA determined that no such stipulation was needed as to be building habitable space “would be building illegally . . .they are not asking for habitable space.” (ZBA chairman).  A bathroom is clearly only needed for occupied space.  This project should be re-presented to the ZBA as the project did not follow the plans submitted.

The city zoning ordinance provides a definition for a garage:  Definitions

Garage: An accessory building or portion of a principal building used for the storage of motor vehicles of the occupants of the premises. 

Cars and lawnmowers do not need a bathroom.  Bathrooms are available in the house—in the occupied space.

[Shaw] An ACCESSORY STRUCTURE (RESIDENTIAL)is defined in our City Zoning Ordinance as “an unfinished and uninhabitable space in a detached structure” which includes private garages. There is no definition in our City Zoning Ordinance for finished or unfinished space. Whereas a finished condition for a garage bay might be untaped/unpainted sheetrock, a three season sunroom might not be considered finished without taping, painting and insulation. Neither of these situations even addresses the question of conditioning. Therefore I believe the consideration of finished space to be situational and subject to my interpretation.

The Zoning Ordinance is not silent however, on habitable living space.  HABITABLE/LIVING SPACE is defined as “a space in a building suitable for living, sleeping, cooking, bathing, washing and sanitation purposes.” The key word in this definition is the word “and” which means that space is not considered habitable living space without all of those components. No single or limited combination of these components would constitute habitable space.

[analysis] The key word in this definition is “suitable”.  In other words, is the space suitable for habitation?  What makes it uninhabitable?   If a group of people are on a second story with access from stairs that meet the code, in a space that is insulated, with a space heater/window air conditioner and a bathroom not inhabiting the space?  What must they not be doing to be sure they are not inhabiting the space?  Is watching a ball game?  Falling asleep on couches?  Spending the night . . the weekend? Air BNB?

Further, the zoning does inform the question of use and occupancy: As defined in zoning ordinance, the words “used” or “occupied,” as applied to any land or building, shall be construed to include the words “intended or designed to be used or occupied.”  Clearly, the plan for the space was to be suitable for occupancy.

Clearly, the insulation of the space, attempt to bring in water, sewer, electric, and gas/heat are all indicative of intent to inhabit the space.

[Shaw] Also crucial in the determination for the allowance of a bathroom is the definition of USE. It is clear that a bathroom falls under the definition of USE- ACCESSORY in our City Zoning Ordinance as “a use customarily intended to be incidental and clearly subordinate to the principal uses or buildings on a lot.” As I see no inclusion or exclusion of a bathroom in any structure defined in our ordinance, I can only presume that a bathroom is allowed anywhere that it is deemed to be an appropriate accessory use to an allowable principal or permitted use.

[Analysis] It is inappropriate to segregate this one sub-use that is associated normally with a principal use and consider it simply as an accessory use.  I respectfully disagree as a bathroom is a key element of a principal use for a residential property.  Is a dining room an accessory use?  What about a living room? Can this accessory use of a garage also include a living room?  A bedroom?  This is a slippery slope.

[Shaw] Furthermore, the question of use is significant in the determination because the addition of a bathroom does not change the use of a structure. If the addition were to cause a use change which effected the allowed density or character of a neighborhood, or was not deemed appropriate as an accessory use, then it would not be allowed.

[Analysis] A bathroom is only required when one inhabits the space.  Clearly, there is a bathroom a few steps away in the house.  Again, this is a slippery slope as the addition of uses including a bathroom supports increased activity which does in fact affect the character of the neighborhood.  When does habitation begin—when one uses the bathroom . . . when 8 guests are over in the garage watching television and using the bathroom . . . when visitors need a place to sleep and they sleep upstairs . . . when visitors stay for a weekend .. . when a relative moves in for a month . . . . 

[Shaw] In the case of 66 White St., the private garage is a permitted use and therefore a bathroom would be allowed at the garage bay level as an accessory use. It is wholly reasonable and logical that a bathroom in an accessory structure such as a garage would be convenient if not necessary for anyone who would be spending a significant amount of time in the garage bay or yard. However, I would not find it reasonable for such a use at the second floor of this structure as it is not logical for a bathroom to be an accessory use to an uninhabitable, unconditioned, unfinished storage space. If this space had the appropriate approvals for such a use then it would be logical to allow one.

[Analysis] Disagree that a bathroom is needed for convenience or necessity.  Let’s be serious.  The house is ten steps away.  So, we have a lesson here on how what starts out as a garage becomes connected to water and sewer, morphs into increasing use of the space for gatherings, morphs into a second principal use on the same lot and then into another illegal dwelling units in the city.  And then, when that happens, the applicant comes to the city to ask forgiveness.  When has the city caused to tear down an occupied dwelling unit or evicted residents in a building that met all of the building code that was inhabited without proper permits?

[Shaw] I hope this determination is helpful in clearing up any confusion about the inclusion of bathrooms in an accessory building. There are still parts which are open to interpretation and those would be determined by the Zoning & Building Inspector on a case by case basis.

[Analysis] Respectfully disagree.   Are the neighbors being asked to be the code enforcers when the problem could be and should be nipped in the bud by not allowing water and sewer to a garage?    This is the proverbial nose of the camel.  If you let even the nose of the camel in the tent as the old Bedouin saying goes, before you know it, you have the whole camel in there and good luck getting it out! Who will be responsible when the camel is in the tent?  This project should go back to the ZBA as the project failed to follow the plans submitted.

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So we have two examples of the applicants submitting proposals to the ZBA and then going forward with other plans.  In the case of the “barn”  on Murphy Lane the applicant has filed an article 78 to overturn the ZBA stop work action.  Very recently the court declined to dismiss the suit and now lengthy and expensive litigation with an unknown outcome are in our future. 

Bear in mind that these are just the two examples from my neighborhood.  One has to assume that there are many more out there that simply went forward because the neighbors assumed they had no choice.

You would think that this would cause the ZBA to set up a public meeting with the planning staff to ask how has all of this happened and what actions can we take to minimize these problems in the future?  You would think….