Advocate editorial board opinion: It doesn't have to be city's way or the driveway

By the Advocate Editorial Board
April 29, 2014 at 5:05 p.m.
Updated April 28, 2014 at 11:29 p.m.

When looking for a solution, it's often best to look toward the middle of the road.

That's what the city of Victoria appears ready to do after receiving intense public backlash for its handling of a homeowner's variance request for a second driveway. To better understand the driveway drama, it's best to back up a bit first.

About a year ago, the homeowner, Ben Commerson, obtained a permit to build a 1,200-square-foot workshop in back of his home in the Northcrest neighborhood. The city OK'd that building and a temporary driveway for its construction, but Commerson did not get permission to build a second, permanent driveway.

The city suspects Commerson knowingly built the driveway without permission, based partly on the fact that he waited until after the final city inspection to add a garage door facing the street. Before then, only a solid wall faced the street.

However, Commerson says he just didn't understand the process and added the bay door later when he could afford it. He said he thought it was clear he planned a second driveway, as several other homes in his neighborhood do, including one directly across the street. Those second driveways were built, though, before the neighborhood became part of the city and didn't have to adhere to current regulations.

A key point Commerson said he also learned along the way is that the city owns the right-of-way along its streets. Homeowners must maintain this right-of-way and may use it, but ultimately, they don't control it.

As Commerson told our editorial board this week, he can pave his yard, but he can't pave the street right-of-way without the city's permission. This distinction is critical for the public's understanding, given that many characterized this as government infringement on private property.

The city must control the right-of-way for water, sewer, drainage and other reasons for the public good. There's nothing at all wrong with the city doing that.

Where the city veered off course is in failing to reach a compromise before this issue went all the way to the City Council. Somehow, common sense needed to enter sooner into the equation.

Commerson constructed a good-looking driveway that fits the neighborhood. He said he was willing to alter the driveway in whatever way necessary to be sure proper drainage and safety.

After the city told him his driveway violated the city's rules, he applied for a variance. Somewhere in this process, the city should have worked more with him to find a compromise.

Of course, the burden also is on the homeowner to learn the city's rules and procedures. Commerson said he didn't know to show up for the planning commission meeting in which his variance request was first considered.

The City Council then upheld the planning commissioner's rejection of the variance. Mayor Paul Polasek said he has since talked with city staff about working out a compromise to require Commerson to bring the driveway up to city code. His variance requested could be reconsidered and granted on that condition.

If the city chooses, it also can take Commerson to Municipal Court to decide on a fine. This type of code violation is punishable by a fine of up to $500.

If the city wants to force Commerson to tear out the driveway, it would need to sue him in civil court. The city probably would win the case, but that doesn't mean it's the right course of action.

The city still has time to change direction and work out a compromise that respects both the private property owner and the public good. There's a middle ground here.

This editorial reflects the views of the Victoria Advocate's editorial board.



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