City code and fire damage force demolition of house

July 25--This is a case of a person's private property rights having to give way to the greater good of the community, as expressed in the City of Burlington's nonconforming-use zoning code.

Richard Wixom's house, at 314 S. Seventh St., had legal nonconforming-use status until a fire erupted April 15 in the kitchen. Wixom inadvertently turned the knob on his electric stove with a kitchen stool. He was in a hurry to hit a sale at HyVee and scooted back from his seat and left the house.

"I wasn't gone five minutes. I could hear the beep-beep-beep of a smoke alarm. I thought it was next door," Wixom said, expending precious minutes checking on a neighbor.

By then the fire had reached the electrical system and the lights in his house no longer worked, it was dark and he couldn't find the phone in the billowing smoke.

While a neighbor called the fire department, Wixom located a fire extinguisher, but it gave out after two puffs. He learned later he should have had it recharged and checked.

The fire department showed up quickly, and the fire was contained to the kitchen, with smoke damage permeating the house.

Loving the house and his beautiful flower garden and knowing he had insurance, Wixom figured all he faced was a significant repair job. Instead, he's facing tearing down the house, at the minimum. He can rebuild, according to Development and Parks Director Eric Tysland, but not in the same spot; he must conform to current setback requirements.

Nonconforming uses are covered under Chapter 17.30 of the city's zoning code. The pertinent part states: "Should such nonconforming structure ... be destroyed or deteriorated by any means to an extent of more than 60 percent of its assessed value at time of destruction, such structure shall be allowed to be restored or reconstructed to its previous size, including area, height, and lot coverage; provided all other applicable building and zone codes are met, including required setbacks.

"It is the intent of this regulation to allow these nonconformities to continue until they are removed or fail to maintain their nonconforming status, but not to encourage their survival."

The assessed value of Wixom's house is $10,200, therefore $6,120 of damage trips the requirement the house be demolished.

City building inspector Larry Caston said he spoke with Wixom's contractor, who estimated the damage at more than $60,000.

Wixom's insurance firm, Hausch & Co., sent a letter to the city April 21, stating it has put $10,000 in reserve from the claim to pay for demolition, as required by state law for homes "deemed uninhabitable."

If Wixom doesn't arrange to have the house torn down, the city may claim the $10,000 to tear it down.

Wixom said Friday he has received no documentation from the city or insurance firm stating he must tear down his home.

"This is a shock," he said.

Tysland and Caston said they haven't "placarded" the building yet, because insurance companies are slow to pay and they want to give Wixom maximum time to work with his insurance company.

Caston said once the placard goes up, Wixom has 30 days to "get started and letting us know what the plan is," including lining up a demolition contractor who then gets a demolition permit.

"The city code says 30 days to demolish the building once the placard goes up, but that isn't practicable," Caston said.

Tysland said the city examines the fire marshal's and the insurance firm's damage estimates, but mostly the contractor's estimate for repair, to determine if there is more than 60 percent damage, using the county assessed value as the denominator.

If the contractor's estimate seems off, the city will investigate further, but in this case there was no doubt more than 60 percent damage had occurred, Tysland said.

The lot is a nonconforming size. It's 117 feet long and 27 feet wide at the front and 30 feet wide at the back. Code requires lots be 50 feet wide and at least 5,000 square feet for a single-family home in this R-4, multi-family residential zone. Wixom's lot is about 3,333 square feet, but the code allows him to rebuild, if he observes the setbacks, which are 4 feet on the sides and 25 feet on the front and back, Tysland said.

Wixom's one-story, 1930 wood-frame house is about 17 feet wide and 55 feet long and the rear sits on the rear lot line. Tysland said Wixom could build a 19-foot wide, 67-foot long house within the setbacks.

Code also requires Wixom to provide two off-street parking spaces. Wixom's house sits atop what may have been a carriage house, Caston said, which may be usable, with some rebuilding, as a two-car garage. It opens onto the alley between Sixth and Seventh streets. Caston said the rear of Wixom's lot abuts a retaining wall, with the carriage house carved out.

Wixom said he has received no payout for the house from the insurance company. Asked if he might rebuild, he said, "I don't know what I'm going to do."

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