When can 10 inches be the difference between selling a house and not selling a house? When those 10 inches are the amount the house intrudes upon legal setbacks, as a case before the Bethany Beach Board of Adjustments proved last week.
The board heard on Dec. 12 a request for a variance at 113 Fourth Street, from property owners Paul and Katherine Norton Warren, who had tried to sell their house, only to learn that it could not be sold because it’s .8 feet too far to one side.
The home, built in 1953, was to have 7-foot side setbacks, but somehow — through lack of care or lack of precision in older measures — the house was placed .8 feet too far to the west, and .9 feet too far to the west at the chimney.
That puts the property out of compliance with town code — including the code that was in place at the time — and, thanks to more stringent lending standards these days, that means it can’t be sold until the non-conformity is resolved.
Additionally, Building Inspector Susan Frederick said, the property had had a second encroachment on a 5-foot setback from a shed that was placed 2.5 feet too close to the property line when it was put there as a replacement for a smaller shed. But, she noted, the Warrens had since had the shed moved, in order to remove that encroachment and simplify the issue of a variance for the main structure.
“I think things back then weren’t as exact as they like to be now,” Frederick acknowledged of the home’s original construction. “There was probably no final survey produced at the end that would show discrepancies. There are no plans on file,” she added. “I don’t know what they built this on.”
Frederick noted that an addition constructed during the 1980s had been built within the proper setbacks.
“Someone realized it at some point, and it was corrected,” she said.
Frederick said the earliest survey of the property that exists in town records was a 2007 survey. “We don’t have a 1953 survey,” she noted. “It’s a little unusual not to have survey.”
Board Chairman Bob Parsons referenced the changes in surveying technology since 1953. “Back then, their marks were spikes in the road, and the roads then were sand and clay.” Frederick agreed that surveying technology is more exact now.
Board Member Vahan Moushegian additionally pointed out that the house was supposed to have been constructed to be 26 feet long but was, in fact, built to 26.5 feet long. “It could never meet the setbacks in 1953,” he said. “A 26-foot house plus 7-foot side setbacks makes up the 40-foot lot.”
Frederick said she didn’t have any record of who built the house, or whether they were inexperienced or just framed the house incorrectly.
“Preciseness was not a guiding criteria in that day,” Moushegian allowed, “as long as they got it relatively in the ballpark. Even if it was placed directly in the middle of the lot, it still wouldn’t meet the setbacks,” he emphasized.
Parsons asked whether this kind of issue had come up for a variance in the past, particularly among houses built in the same period. Frederick said it had not, but she said that was unlikely to remain the case.
“We might see more of these, as banking and lending institutions are requiring towns to sign off on surveys for loans,” she explained. “I can’t sign off on a survey if I find something not compliant.”
Attorney Vince Robertson of Griffin & Hackett, representing the Warrens, said the issue had come up as a result of the couple having gotten a contract to sell the property.
“You need surveys perhaps when they didn’t in the past,” he said of the more stringent lending requirements.
“Because this is something that’s been in existence for 50 years, I’m not really going to make arguments. I’m just going to make statements of fact,” Robertson told the board, noting that the property had gone through many sales; and had had additional building permits issued and granted and construction done.
“It was built around the time the code was first instituted, in the early days of town inspecting,” he continued. “Surveying was an inexact art. … It was reasonable … with whatever surveyor they had, plus the town inspectors, to assume the house was correct — maybe not down to the inch.”
He noted, too, that the home came within a year of being eligible for status as a legally non-conforming property, which would not have required a variance.
Addressing the board’s criteria for a variance, Robertson noted the difficulty of any of the potential measures the Warrens might use to bring the property into compliance without a variance. Even if they were to have the home picked up and moved to the center of the lot, he acknowledged, it was too long to meet the required setbacks, due to those extra 6 inches of width.
“In this case, that would be demolition or shaving off one side of the house,” he said of potential remedies. “The hardship would be pretty heavy in this case.”
Moreover, Robertson argued, “It’s not going to have or hasn’t had any adverse impact on the neighborhood, simply because it’s been there for 50 years. Looking at it, you can’t tell it’s off. If we were asking for a house to be built that encroached on the setback, I understand you would look at it a little differently, but this has been sitting there for 50 years without complaint.”
Without the variance, he said, the Warrens wouldn’t be able to sell the house, and the cloud would remain over the title in perpetuity.
“Legal standards aside, I think everybody recognizes that the house has been there, and we’d just like to get it cleared up in the town’s records and for the new owners. No one is here with any objections,” he said of those at the hearing. “We took care of the shed. We’re not looking to expand what’s there. We’re just looking for approval of what’s been there for 50 years.”
Paul Warren noted that the couple had owned the house since 2001 and had had no idea there was any issue with the setbacks. He said none of the neighbors had complained about a problem.
“I don’t remember anything like this being brought up,” he said of their own purchase of the property. “We’ve been struggling with this thing, with the sale, and hope we can resolve this and take care of it permanently.”
Board members acknowledged the age of the home and the comparative lack of precision of surveying at the time, and noted that the encroachment was through no fault of the Warrens. Given that they would have to raze the home or remove a portion of it to comply with the code, and that “for 60 years, no one has complained about the house or the encroachment,” they said they felt this minimal deviation could be allowed to legally stand. The board voted 4-0 to approve the variance.
“I’m sure there are other properties in Bethany that are not in full compliance with the code,” noted Moushegian.
With the time pressure of a pending sale, the board said they would try to get a written decision to the Warrens as soon as possible, with a 30-day appeal period to follow.