Council upholds P&Z ruling to deny deck rebuild

A Brandon homeowner’s variance appeal was denied for a second time by unanimous vote at Monday’s Brandon City Council meeting. Had the council overturned the city Planning & Zoning Commission’s ruling, construction would’ve been allowed to continue on the rebuild of a backyard deck.

Twelve days earlier, P&Z denied the variance request submitted by Chuck Bengston to replace the deck in his backyard at 1500 E. Birch St. The P&Z Commission said Bengston was unable to show hardship.

Bengston’s hardship argument is the shape of his corner lot.

“My lot is long, it’s narrow from north to south,” he said. “The reason I came here is because I had a deck off the back of my house on the north side that was 16 feet by 16 feet, and the deck was unsafe. I would walk on it and it would feel like you’re on a surfboard.”

City attorney Lisa Marso confirmed that the shape of a lot could be considered a “hardship”, per council determination. She added the replacement deck does not fall under the “grandfathered-in” rule.

Bengston hired a contractor, who submitted the site plan on his behalf. The deck he proposed is 16 feet by 10 feet and indicated it would be 20 feet from the property line.

“So, it’s six feet shorter,” Bengston said. “I’m asking for a three- to four-foot variance to allow me to have this deck, because the original deck was approved.”

However, when city building inspector Paul Clarke checked in on the project, he found the under-construction deck did not meet the 20-foot setback.

The P&Z Commission also determined the shape of the lot was not a hardship.

“When I talked to the planning commission, they said, ‘Well, if we give you three or four feet, somebody else is going to come and ask for three or four feet.’ I understand that there are rules, but there are variances to rules, and that’s why I’m. coming to you is to say, ‘Look, this is the situation,’” Bengston said.

Bengston also presented documentation from his neighbors, who supported the deck rebuild.

“All of my neighbors agree this is a substantial improvement to the property and they have no concerns over this, including the neighbor who is most affected, who’s the one who lives directly to the north of me,” he said.

Alderwoman Barb Fish advised Bengston to talk with his contractor.

“The plans were submitted with the 20-foot (setback), and that’s what we have to go by,” she said.

Alderman Tim Jorgenson noted that the replacement deck has a roof.

“The P&Z tends to look at those differently. We do have something in our ordinance about a flat deck coming off a first level as to how far it can be from a property line. As soon as you put a roof on it, that changes the way it’s looked at,” he said.

Bengston said he reviewed the city ordinances and did not find anything that defines a covered deck as different than an uncovered deck.

At the P&Z meeting, the commission noted a letter dated Oct. 11, 2023 from Clarke to Bengston that read Ray Kruetzfeldt, a general contractor, had asked for Clarke to perform a framing inspection on Bengston’s covered deck project. During Clarke’s inspection, he reverified the required setback of 20 feet for the deck to the property line. Clarke said he was unable to verify the north (rear) property line, but measured from a four-foot chain link fence to gauge the setback. As it turned out, the setback measured 15 feet. Because the Bengston property is a corner lot located in an R-1 zone, he is allowed a 20-foot setback rather than the usual 25-foot setback.

Tallgrass Park rezoning 

The council also gave unanimous approval to the rezone of Tallgrass Park, despite opposition shared by neighbors at the Dec. 7 Planning & Zoning Commission meeting.

City Administrator Bryan Read explained that other city properties, including Aspen Park, the detention pond at the south end of Main Avenue, City Hall and the golf course have all be rezoned Institutional. He also noted the $270,000 investment the city made in new playground equipment and surfacing at Tallgrass Park.

“Changing it to Institutional, obviously something could happen down the road, but after investing that kind of money in infrastructure thee, there’s no intention of changing that into anything other than a park for the foreseeable future,” Read said.

Alderman Dave Kull made the motion to move ahead with the rezone.

“I just want everybody to know that nothing nefarious is going on here. If there was an effort to remove that park, which is right down the street from my house, I would probably glue myself to the equipment,” he said.

Fish asked council member Tim Jorgenson, who chairs the P&Z Commission, about the time commitment in creating zoning districts. Jorgenson said the process takes four to six months.

“It doesn’t happen overnight,” he said. “Over my 15 years or so being on P&Z, we have tried really hard to not overcomplicate the zoning code. We’ve tried really hard to make it as user-friendly as possible for both us and the people using it. If you do read the Sioux Falls zoning codes, you have to have an advanced degree in mathematics to put a garden shed in your backyard. They have a whole staff department that reviews and does all this, and we have a Patrick (Andrews). We’ve tried to take a lot of time to do these ordinances. We review them frequently and we change them if we see fit.”

Emmett Keyser, a neighbor of Tallgrass Park, addressed the P&Z on the topic at their Dec. 7 meeting and returned to the council to suggest they consider creating a zoning districts similar to what Sioux Falls has for open spaces. Those two districts are defined as conservation and recreation.

“I kind of looked at our city’s ordinances and then compared them with the city of Sioux Falls. Pbviously, they are two different-sized cities, and certainly I want to take that into consideration., but I did find some ideas that may be a better fit for some of our park areas,” Keyser said.

He encouraged the city leaders to “slow down” the rezoning process and reconsider developing zoning districts for open spaces.

“The reason I think it’s important to consider having an open space district is open space … becomes a critical part of the overall reason people choose to live in a community like ours,” Keyser said.