26 July 1999 Below is a letter I sent to then ACC contact person Chris Harmon back in February, to express my concern about setbacks in SPCE. In my opinion, 100' setbacks are part of what we purchase here, and I do not want to see compromises in that area. This is an issue that should concern every property owner, one that threatens to become relevant soon with respect to a particular lot. I am reprinting my February letter here as an alert. It is usually much easier to ward off a bad decision before it happens than it is to get one reversed after the fact. I have substituted caps for the italics that were in the original.

DATE: 2/15/99

TO: Chris Harmon Huitt-Zolars SPCE Architectural Committee

FROM: Byron Matthews 4 Luna Azul Lot 117 Phase III

RE: Setbacks

The following are comments on section II. 2.2 ("Setbacks") of the Amended Design Guidelines for SPCE Subdivision, 3/19/98. Please share these with the other members of the Committee and place them in your files.

1. "The applicant must demonstrate that extraordinary circumstances exist justifying the variance and that the variance will not in any respect have material negative impact on another Lot..."

The fact that 100-foot setbacks were adopted from the beginning by the developers of SPCE speaks to their estimation of the value of those setbacks for the development as a whole and, by implication, for every lot within the development. In my opinion, the granting of setback variances will ALWAYS AND NECESSARILY have material negative impact on another lot.

Setbacks of at least 100 feet on both sides of any lot line are an important and valuable component of SPCE properties; they are are an expected amenity attaching to all lots in SPCE, accounting to some degree for their desirability and for their present and future market value. Therefore, any lot that adjoins a lot having compromised setbacks, due to improvements placed closer than 100 feet from a lot line, WILL HAVE BEEN RENDERED LESS DESIRABLE AND LESS VALUABLE FOR THAT REASON.

I hope that the Committee will agree that this is sufficient reason, under the language of the Design Guidelines, to deny any particular request for a setback variance.

2. "The Architectural Control Committee recognizes that certain lots will require by their design, variances to this Guideline and will work with lot owners on a case by case basis."

This sentence can only be understood to mean that, to grant a variance, the Committee must have concluded that there is no possible house design that would be feasible for the lot in question absent a setback variance, because only in such a case would a variance be REQUIRED.

But, surely, NO lot exists in SPCE for which competent architects could not produce any number of attractive and comfortable house designs without violating any setbacks! Far more likely is the case in which a PARTICULAR house design will not work without a setback variance on the lot for which it is proposed. In such cases, the conditions for granting a variance clearly are not met. What is needed instead is a revised design, one that is better fitted to the site. Precisely this point is stressed in the final paragraph of the Preface to the Amended Design Guidelines document.

I hope the Committee will agree that a mismatch between a particular house design and the configuration of a particular lot is NOT a valid reason to grant a setback variance, and that those who request a setback variance on that basis should instead be referred to their architects for design revisions.

-- Anonymous, July 26, 1999

Answers

In regards to this issue, I want to let you know that neither the ACC or the members of the board take this matter lightly. "...setback variances are, in most cases, taken to the adjacent lot owners for approval unless it is a hardship case where clearly there is no other building location on the lot. If the variance is just to improve their view or for some other reason, other than a hardship the neighboring lot owners must approve and sign off before the variances is granted. The Board requested that San Pedro Creek Land Company continue to inform potential owners that variances can and do occur in order to prevent future problems between owners..." SPCE Board meeting. I do not believe that the setbacks that are granted will affect property prices because of the care taken in granting them.

Clare Sue Levene, Lot 78 Phase III

-- Anonymous, September 08, 1999

Response to Clare Sue Levene

Your response, which I take it represents the position of the Board, raises many questions. For example, it is stated that in other than hardship cases "...neighboring lot owners must approve and sign off before the variance is granted." Must? No such stipulation appears in the Amended Design Guidelines, which I understand to be the document by which the ACC operates. Has the Board amended the Guidelines document?

It is also stated that "...setback variances are, in most cases, taken to the adjacent lot owners for approval unless it is a hardship case" This seems to say that variances in hardship cases require no approval from adjacent owners, and in non-hardship cases approval is required only "in most cases". Is this what was meant? In fact, in my case, huge setback variances were being considered by the ACC on three sides of a lot, with no notice to or input from either adjacent property owner.

The term "hardship" is not defined, nor does it appear anywhere in the Guidelines document. In fact, "hardship" is a term of art that is often employed in attempting to pry variances out of architectural or zoning committees. The example provided is the case "where clearly there is no other building location on the lot." But the usual situation is one in which variances are sought because a particular house design wont work on a particular lot without them; such requests violate the letter and spirit of the Guidelines and should be rejected. And what about the adjacent property owners who may suffer "hardship" in the form of material negative impact due to approval of variances for the subject property?

The Board requested that the Land Company, in effect, continue to do what it has been doing. But that will not "prevent future problems between owners" any more than it has avoided such problems in the past. The Board should have requested that the Company (1) Identify ASAP those specific lots in SPCE that will likely be granted variances, (2) Make certain that prospective buyers of adjacent lots are informed that they cannot count on 100 setbacks at their property lines, and (3) similarly inform prospective buyers of lots not so identified that any and all setback variance requests will be rejected. Thats how you prevent future problems.

Byron Matthews 4 Luna Azul

-- Anonymous, September 09, 1999