by Carrie Moritz, Gazette
When the newest development off Sarah C Street was purchased by Nielsen Construction of Harrisburg, the Garretson City Council was enthusiastic about the new housing that would be built. Since then, it’s been an interesting journey, with issues around drainage, run-off, and lot sizes. The latest issues involved ordinance violations surrounding setbacks, both from the sides and from the front.
In October, City Maintenance Supervisor Craig Nussbaum noted that four of the newly-laid foundations didn’t seem right.
“He was down there to install gas lines and saw that the houses were closer together than they should have been,” said Mayor Beaner in an interview with the Gazette. “So, he got out his tape measure and discovered that four of the houses had side setbacks of only five feet instead of the required seven.”
Nielsen submitted a variance request that was heard at a special meeting in October, for which the council granted approval for the side setbacks. Even at that meeting, the decision was challenged by community member Dale DeBoer, who felt the city had given enough to Nielsen with an initial variance request to change lot sizes from 66-foot width to 60 foot.
Initial subdivision layout plans submitted by Nielsen Construction in 2019 had the setbacks for 7 feet on the side and 30 feet in the front, which followed city ordinance.
Kelly Nielsen, CEO of Nielsen Construction, stated during the October special meeting that he was certain the side setbacks had been changed to five feet when the council granted a variance on lot size, which went from an initial 66 feet to 60-foot width. Though this was not the case, the council granted that variance.
Later, newly-appointed building inspector JR Hofer discovered that the foundations had a setback of only 25 feet instead of the required 30 feet.
On Monday, the council had a hearing for a variance to change the front setbacks on the new homes from 30 feet to 25 feet. At the end of the hearing, Mayor Greg Beaner broke a tie vote with a “no,” ensuring that Nielsen Construction would be forced to remove six foundations that have already been laid.
At Monday’s meeting, Nielsen again defended his company’s actions, stating the plans submitted for the building permit had the 25-foot setback and were approved.
The inspector signed off on the permit on August 25, 2020. The initial lot layout plans that followed city ordinance were submitted to the council and approved in June 2019.
Since August, there has also been turnover with regards to the building inspector.
A new inspector was appointed by Mayor Beaner at the end of October, after long-time building inspector Dave Swier ended his term. The council unanimously approved the appointment of Hofer and Bill Pearson, though community members have questioned it. At the November council meeting, council member Dave Bonte stated he had received a phone call asking why someone with more experience hadn’t been appointed, to which the Mayor responded that he also appointed Pearson, who is acting in an advisory capacity and has over 34 years of experience in Crooks and Baltic.
No matter who signed off on the building permit, however, it is still the builder’s responsibility to ensure all ordinances and zoning requirements are met, and that variances are requested prior to the first shovelful of dirt being turned or footing is placed.
“The building inspector does not have the authority to override the council,” said Mayor Beaner during the hearing.
“Anytime you do something outside of law without a variance the city can come and tear it out,” said Mayor Beaner in a later interview with the Gazette. He noted at the beginning of the interview that court action by Nielsen was a possibility, so he didn’t want to say too much. “Having a variance hearing after the fact is not how it’s supposed to work.”
Until Monday, the council had been more than willing to work with Nielsen Construction on prior requests. This front setback request, however, split the council in half. Council members Dave Bonte, Tom Godbey, and Bill Hoskins voted for the variance, while Greg Franka, Jodi Gloe, and Richelle Hofer voted no.
“It was an error on both ends,” said council member Jodi Gloe. “It’s everyone’s fault.”
Council member Bill Hoskins called it a “series of unfortunate circumstances.”
“I feel bad for all of us having to make that decision,” said Mayor Beaner the next day. He noted that the council had already done the work re-setting zoning and ordinances before Nielsen entered the picture. “Council should’ve never been put in that position to make that decision in the first place.”
With a company as large as Nielsen’s, Mayor Beaner acknowledged that it’s entirely possible Nielsen himself didn’t make the mistake, as that was the fault of the engineer who drew up the building permit plans. However, as CEO and as the contractor, it is his responsibility to ensure ordinances are followed before beginning the project.
This was part of what the council struggled with during the hearing.
“I think we all appreciate that Mr. Nielsen has invested in our community, and I don’t want to disparage him in any way from doing that,” said council member Hoskins. “But we’ve got a problem, and we’ve just gotta figure out what that solution is.”
“When I built my grain bin and messed up on my grain bin foundation, they made me rip it up, the County did, and this is the same thing,” said hearing attendee Randy Hoogland.
Council member Bonte pointed out that if the variance requests were approved, it would mean the rest of the lots on that side of the street would also need to be approved for 25-foot setbacks in order to match. He attempted to make a motion including the other lots, but that was against regulation.
Council member Richelle Hofer suggested that if this was approved, the ordinance as a whole should be changed.
“I think we have to follow the rules we have set,” said Mayor Beaner after casting his vote for no. He later noted that it was a very difficult decision for him to make, especially since it involved errors on both sides, but that the City needs to start ensuring it’s working with the codes and ordinances it has set.
“When I was asked if I would be willing to become the Building Inspector, it was explained to me that our current system was flawed,” wrote JR Hofer in a letter to the council. “I feel that knowing the code and knowing the local ordinance is more relevant in the enforcement side than knowing how to build it myself. Learning the code and enforcing it without bias is the basis of this job. The one thing that you cannot judge as an inspector is the quality of the contractor’s work or the method chosen to accomplish it. If it meets the requirements of the code and ordinance(s) it passes.”
