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1110 Locust Avenue in Huntsville. The Alabama Supreme Court in January ruled: "The zoning-enforcement coordinator's interpretation allowed the house in question to be built approximately 20 feet closer to the street than other existing houses on the street." (cstephens@al.com)

The Alabama Supreme Court ruled in January that a $725,000 house in Huntsville was built too close to the road. By about 20 feet.

Richard Chesnut said he warned the builder in the spring of 2013, as the front of the house was first being framed. "I really was wanting to work things out," said Chesnut, the next door neighbor.

Chesnut complained to the city's Board of Zoning Adjustment. But the city told him he had it wrong and that he was too slow to complain anyway.

The city gave the thumbs up, the builder kept building and so began a three year legal battle that ended this year with a surprising reversal at the Alabama Supreme Court.

The justices in January said the "clear intent" of the city's zoning is that all of the houses on an established city street should sit in a tidy row. Huntsville was unreasonable to suggest otherwise.

Justice Michael Bolin wrote for the majority: "The deference given an administrative agency's interpretation of its own rule or regulation is not boundless."

It was official. The new house at 1110 Locust was built in the wrong place.

Unsellable

What happens now?

Looking west on Locust Avenue from the front yard of Richard and Betty Chesnut. (cstephens@al.com)

"Good question," said Andy Campbell, attorney for the builder.

Saw off the front 20 feet?

"That would certainly bring it into compliance," said Chesnut.

Jack it up and roll it back?

"There are a number of things that could occur, up to and including the new home that was constructed to be razed," said city attorney Trey Riley.

Tear it down and start over?

"So long as the builders can be compensated for the damages that the city did to them, if I had my way, I would tear this house down," said Chesnut's son, Patrick, an attorney who also worked on the case. He said the city should compensate his parents, too, for diminished property value.

But the builders are also in a tough spot. There are renters in the house now, and the ruling clouds the title of a house built to be sold.

"As it stands, the house cannot be marketed," said Campbell.

Urban infill

It's a common sight in Hunstville.

The city, growing rapidly in recent years, has seen waves of smaller, older homes razed throughout neighborhoods like Blossomwood and Mayfair and Piedmont, making way for larger and taller structures that often seem to crowd narrow city lots.

The Chesnuts argue the city has left owners of those older homes to guard against outsized construction.

Previous house at 1110 Locust Avenue

"They expect that nobody can afford to fight them," said Patrick Chesnut, speaking of the city Board of Zoning Adjustment. "They just happened to have done it right next to two lawyers experienced in real estate litigation."

On Locust Avenue, the issue boils down to the size of the front yard. The older homes, most dating back before World War II, sit back an average of 50 feet from the street. The new two-story home sits back just 30 feet, poking out like a photo album on a home book shelf.

"It just sticks out too far," said Melissa Musgrove, the next-door neighbor on the opposite side from Chesnut. "Part of the value of your home is the curb appeal. It obliterates curb appeal."

"I think it encroaches on the character of the neighborhood," said Steve Wilson, who owns a home up the street. "It's a great neighborhood, nice people, I'm sorry all this happened. But it never should have happened in the first place."

But that's not the fault of the builder, Guild Design, says the builder's Birmingham attorney. Campbell says the city gave the OK.

"My client feels like he has acted in good faith based on the guidance of the city," said Campbell.

So should Huntsville grant a variance and call it a lesson learned?

"That's not the way to fix it," said Richard Chesnut.

So should the house be torn down?

"I couldn't do that. I want this young man's business to thrive," Musgrove said.

The house was built by Denton-Niemitz, a partnership between carpenter Ben Niemitz of Huntsville and Mark Denton of Texas. Niemitz declined to comment for this story.

In 2012, the listed price for the previous home at 1110 Locust was $189,000. That 1400-square-foot home was torn down and Niemitz began building a 3000-square-foot replacement. Real estate listings show the new home priced at $725,000 early this year.

"One idea is somehow for him to have a variance...but this can never ever happen again," said Musgrove.

But Chesnut said a city variance, which basically OKs the lack of compliance, sends the message that anyone can break the rules and ask forgiveness.

"I know the builders. This is a terribly big investment they made," said Chesnut. "But it damages my property value."

Legal wrangling

In court, arguments focused on developed vs. undeveloped.

The zoning laws, adopted in Huntsville in 1963, say homes must sit at least 30 feet from the road. It's a clear standard for new subdivisions. But there is an exception.

In a developed area among older homes, the city zoning ordinances say the front yard of a new house should line up with the neighbors. That means within 5 feet of the average setback on the same side of the road.

But the law is worded in a peculiar way to apply to "the front yard of such undeveloped lot" in an established neighborhood.

So what happens when you raze an old home to build something bigger? What kind of lot is that?

Zoning coordinator Jim McGuffey determined that the cleared lot on Locust had already been developed long ago. Therefore, the exception for "undeveloped" lots did not apply. The city issued a building permit.

The builders were OK to scoot forward and squeeze more square footage on a lot measuring just .18 acres.

But the Supreme Court didn't buy it.

Letter of the law vs. intent

Chesnut filed a suit on June 3, 2013, to stop construction, arguing the new house was 30 feet from the road and the average setback on Locust was 50 feet.

The city said that he needed to complain within 15 days of the building permit being issued, which he contended a homeowner couldn't possibly know about. He said he complained on May 3, 2013, as framing began. He argued he complained as soon as a homeowner could.

So he filed another suit over the 15 day issue, too.

Chesnut lost at Circuit Court. He lost on appeal.

The arguments grew stranger as the case dragged on over the years.

For example, Chesnut owns a vacant lot on the other side of his home, a lot that's never had a house on it. It's clearly "undeveloped." So if he built a new house or his right, he'd have to follow the law and set it back to match the average of 50 feet. Meanwhile, the builder on his left could knock down a home, call it a developed lot, and set back just 30 feet.

Two lots, a few car lengths apart, both without structures, two standards.

Attorneys for the builder made this same argument about wrinkles in the law.

They told the court they could have just built the house farther back and then it clearly would have been a developed lot. At that point, they could tack on 20 feet on the front.

"The Chesnuts would have been unable to prevent said addition and would have been left in the same position in which they now find themselves," reads the builders argument.

Chesnuts called the confusion over what's developed and what's undeveloped "the ultimate loophole."

Closing the loophole

Lower courts had given the city the benefit of the doubt.

But the Supreme Court held it need not adhere "blindly" to a city's unreasonable interpretation of rules intended to protect homeowners.

Justice Bolin wrote in January: "The clear intent of the City Council in adopting (zoning articles) is to provide that front yards in a single area have conforming setback lines."

"Frankly, I'm a little bit surprised at the decision they reached," said Riley, the city attorney, earlier this month.

The city filed a terse request for a rehearing, accusing the court of "usurpation" of municipal authority. "The main opinion of this Court is so infected with error that decision cannot be allowed to stand," wrote Huntsville in February.

That request was denied. The ruling is final. The house is in the wrong place.

As for the Supreme Court interpretation on city zoning laws, Riley said the city will "revisit in light of their guidance."

Hardship

As for the house, Musgrove said neighbors have been talking a lot in recent months, as they have lately received notices of zoning hearings.

"The hardship that we base our request for a variance on is the fact that we have already completed construction of the new structures based on the City Inspector's determination that the 30 foot setback line applied," reads the appeal to neighbors on June 5.

The appeal was signed by Niemitz.

Looking east on Locust Avenue from the front drive of Melissa Musgrove (cstephens@al.com)

The Chesnuts objected. And the variance hearing has twice been postponed, as the situation remains in a three-way stalemate with the city, the builders and the Chesnuts.

"Our clients constructed a house based on approval by the city," said Campbell, attorney for the builder, last week.

Riley, the city attorney, pointed out there had been a house there before, so it didn't seem like an undeveloped lot. "I can't fault what our people decided," said Riley.

"The city has put enforcement of its zoning ordinances squarely on the backs of its citizens," said Patrick Chesnut. "Zoning is supposed to be good for everybody."

"I like change and want there to be change," said Musgrove, the neighbor, but she is unhappy with the view from her front drive.

"It boils down to you're in this old neighborhood with little lots," she said, "and you think I'm in this neighborhood and I'm protected by the city."

Updated on July 21 at 1:30 p.m. to make clear that Richard Chesnut and Patrick Chesnut are both attorneys on the case.