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Home zoning violation resolved

May 28, 2006|by ROBERT SNYDER

MARTINSBURG, W.VA. - Home builder Bruce Browning faced a daunting task in April when his effort to resolve a violation of Martinsburg's zoning ordinance failed to pass muster with the city's zoning appeals board.

Browning, a Shepherdstown, W.Va., builder who had purchased one lot at the end of a cul-de-sac in one of the city's newest upscale subdivisions, had sited the two-story house he had constructed incorrectly, causing a corner of it to jut sharply inside a required 25-foot front-yard setback.

The mistake could have cost him plenty.

The builder was forced to consider slicing off a corner of the 2,800-square-foot house's attached two-car garage, or worse, he might have had to tear the whole house down and start over.

"It was a big thing to me, being a small builder," Browning said. "To have to tear the front of that house off, all the profit would have went toward that."

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This week, Browning's company and the development company from which Browning bought the property sealed the deal on a solution that city officials said would allow the builder to receive his needed Use and Occupancy permit: Keep the house at 125 Botecelli Court where it is and move the lot.

The agreement calls for Orchard Development Co. to quit any claim over an easement in front of the parcel, which extends the property's lot line, allowing it to comply with the city ordinance's setback requirements.

"The agreement allows Browning Enterprises and subsequent owners of the house to utilize the land and have the right to the land, which is a right they didn't have beforehand," said Andy Blake, the city planning department's legal counsel.

Blake called the remedy a creative and innovative solution for resolving the home builder's dilemma.

Browning said the house was sited improperly when he and his son measured the front of the lot from the curb rather than where the sidewalk would be located.

"It was really troublesome to me when that happened," Browning said. "It was a mistake that usually doesn't happen."

The city's Board of Zoning Appeals denied Browning's request for a variance in April, noting there were no available criteria to grant an approval.

According to the city's zoning ordinance's conditions for granting an appeal, a variance can be granted if there are special features that make the lot different from other lots, if allowing the exception would not give the applicant a special privilege, if the rules create a hardship or if the circumstances didn't happen as a result of anything the applicant did.

Browning commended Orchard Development and city officials for their efforts in helping him come up with a solution.

"When something like this happens ... I think people should work together," he said.

The house, which is 95 percent complete, remains on the market, Browning said.

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