Court Orders Removal of House in Historic District for Failure to Comply with Setback Requirements

The Montana Supreme Court ruled that a Virginia City home owner must remove a new house that violates setback requirements.  This saga began 10 years ago when the owner of a property in the historic district applied for zoning and development permits to build a house.  The design and location of buildings in the district are subject to the design review guidelines of the city’s zoning ordinance.

 

      The owner provided the applications and drawings, which were approved by the Historic Preservation Advisory Committee with some design changes agreed to by the applicant.  The city council also approved, and the permits were issued.  The house would have three levels but only the first and second floors would be visible from the south side.  The permits specified a 25-foot setback from the south lot line and 35-foot setback on the east.

 

      Complaints started soon after construction began in June 1999.  Neighbors noted that there were deviations from the drawings and that the house was set back only seven feet on the south side and 22 feet on the east side.  The owner was ordered to stop construction, be he refused.  A survey commissioned by the city confirmed the violations, and the city revoked the building permit.

 

      After reviewing the permits and the survey, the trial court granted the city’s request for an injunction and ordered the owner to remove the house.  On appeal, the owner argued that the trial court erred in granting summary judgment to the city without accepting additional evidence.  Since both parties agreed that the permits controlled the location, size, and configuration of the house, the state’s highest court concluded that summary judgment in favor of the city was proper.

 

      Although the owner argued that the city should have granted him a variance excusing the building violations, the court noted that the owner never requested a variance.  Granting permanent injunctive relief and ordering the owner to remove the house from the property were proper remedies, the court said.

 

 

Virginia City v. Estate of Olsen, 2009 WL 27695 (Mont.1/6/2009).

 

The opinion may be accessed here.

 

This abstract by Lora Lucero, Esq., AICP appears in March 2009 Planning Magazine of the American Planning Association.