Posted by: Patricia Salkin | July 26, 2020

IA Appeals Court Affirms Grant of Variance for Pergola Built Without a Permit

This post was authored by Matthew Loescher, Esq.

Gregory and Lea Ann Saul owned property in Clear Lake, Cerro Gordo County. Although local ordinances required a six-foot side yard setback, on the west side of the Sauls’ property a patio came within twenty-one inches of the lot line. In 2018, the Cerro Gordo County Planning and Zoning Administrator informed the Sauls they were in violation of a county zoning ordinance because they had not obtained a permit prior to building the pergola on their patio. The Sauls then filed a zoning permit application, but the Administrator denied the permit because the pergola was too close to the west side lot line. The Sauls appealed the Administrator’s decision to the Cerro Gordo County Zoning Board of Adjustment, and sought a variance. 

At the hearing, the Administrator stated he had not heard any complaints from the neighbors. Additionally, no one appeared to contest the Sauls’ request for a variance. The Board received evidence from the contractor that the patio and the posts for the pergola were in place before he built the pergola. The Board approved the variance, and Earley – a neighboring property owner – filed a petition for writ of certiorari, claiming the Board’s approval of the variance was improper and illegal. The Sauls filed a motion to intervene, which was granted by the district court. The district court annulled the writ, and Earley appealed. 

The district court determined there was substantial evidence to support a finding by the Board that “the Sauls could not fully utilize their side yard area, which would diminish the value of the property.” Specifically, members of the Board noted there was not room to walk between the preexisting patio and the fence on the edge of Earley’s property before the pergola was built. Although the pergola did not alter this, it allowed the Sauls to fully use the patio. The record further reflected that no evidence was presented at the hearing concerning when the patio was built, and Earley had not raised a complaint about the patio. Furthermore, although the Sauls’ pergola was located close to the side-yard lot line, Earley’s residence had “a significant separation from the structure,” according to the Administrator. Accordingly, the court found there was substantial evidence in the record demonstrating the Sauls’ request for a zoning variance was based upon unique circumstances. Additionally, as the patio was already present, the pergola over the patio did not create a change to the character of the neighborhood. The court therefore affirmed the decision of the district court. 

Earley v Board of Adjustment of Cerro Gordo County, 2020 WL 4201790 (IA App. 7/22/2020)

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