Grandfather clause fails to pass

Some Fort Calhoun property owners looking to build on their property may want to visit Fort Calhoun City Hall before getting too far into the process.

Motions aimed to provide a grandfather clause to zoning regulations related to properties no longer considered "lots" per recently changed city subdivision and zoning definitions failed to pass during a Fort Calhoun City Council meeting April 15.

Since the motions failed, and until they are considered again in the future, owners of properties in Fort Calhoun or its Extraterritorial Jurisdiction (ETJ) that only border private thoroughfare easements — instead of a public street or a private street with public access — won't receive approval for building permits unless they re-plat their property.

Private thoroughfare easements are those thoroughfares that are privately owned and don't grant full public access. They act as an agreement between property neighbors to use the thoroughfare to reach properties which may be owned by various individuals or entities. Private easements might not be maintained to state-mandated standards, standards which the city follows for public streets and private streets with public access.

The city changed its definition of a lot in December to better align with Washington County's definition. The old definition considered any properties bordering a public street, a private street with public access or private thoroughfare easements as lots. The city no longer considers properties bordering only private easements to be lots. To be considered a lot by Washington County zoning definitions, a property must border a public street.

The proposed grandfather clause aimed to allow long-time owners of properties only bordered by private easements an avenue through the zoning and building permit process, a process that is currently handled by the county as well as the city of Fort Calhoun.

"Washington County, they are preferring to move forward with only granting building permits to lots that access off of public streets," said City Engineer Lucas Billesbach of JEO Consulting. "We've aligned ourselves moving forward in the future to be in alignment with what they're doing. We're trying to also recognize that we have lots out there, that we need a process to allow those people some path forward."

Washington County zoning regulations section 1.11A states: "Every building hereafter erected shall be located on a lot of record."

The city's zoning regulations section 4.06 states buildings "erected, reconstructed, converted, moved or structurally altered shall be located on a lot or lot of record..."

A grandfather clause would have made an exception to that rule by allowing owners of property bordering a private easement to build if they could provide proof the easement existed before a certain date and if they signed a deed restriction.

The deed restriction would have required owners of properties accessed through private easement to sign and acknowledge they might not receive certain benefits since they haven’t allowed public access and easement roads have less stringent maintenance standards.

"Your emergency services, your mail service at your house, your trash service at your driveway," Billesbach said. "It's all those things if you don't have a public street to your property you may not have available to you … It's not a deed restriction to say we won't provide emergency services, just acknowledgement that it may not be available."

Council member Nick Schuler questioned whether a physically signed acknowledgement would impact people's homeowners insurance.

"If you sign a deed restriction and your house burns down and the fire department says, 'I couldn't make it there,' then your homeowners insurance comes back and says 'Look, you signed off that you knew that fire department may not be able to get there. Sorry,'" Schuler said.

Billesbach said he understood Schuler's concern, but the deed restriction only acknowledges facts that already exist, which are that services might not be available. The deed restriction also makes it clear to future property buyers that they have a property only accessed by private easement, Billesbach added.

As it stands now, property owners bordered only by private easements can only obtain building permits if they re-plat their land and have a public road or private road with public access installed, a process that may require the cooperation of neighbors.

Though the motions failed to pass, discussion surrounding zoning and a possible grandfather clause could continue.

"We're going to work with the people in our ETJ rather than excluding them," said Mayor Mitch Robinson during a public hearing concerning the possible clause. "Some people have had this property for 10 or 15 years, and suddenly now it's thrown in their face they can't do it — it's not fair to them."

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