New home torn down in the middle of construction after a small mistake puts the property in violation of city code

By Gabriela Vidal

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    KIRKWOOD, ST. LOUIS (KMOV) — A Kirkwood home in the middle of development was torn down this week because at one point during the process, the property was built in violation of city code by over one foot, and the city would not let that one mistake slide.

“There’s no such thing as building anything without some hiccups, so building an entire house is certainly going to be no exception, and some things are always going to come up,” said Katie Berry, St. Louis Realtors President.

Berry says the demand for homes in the Metro region and in high demand areas like Kirkwood has pushed an increasing number of buyers to build brand new.

“A huge demand for houses, multiple offer situations and houses going significantly above list price. It really is a hard time to be a buyer,” said Berry.

Yet, one buyer did not expect the headache he would face after purchasing his new home on South Harrison Avenue before it was developed.

“My client is a reputable builder, that’s been around for 30 plus years, and he’s going to do what is necessary to make sure his client gets the product that they want, and that’s what his goal is right now,” said Bruce Bartlett.

Bartlett is the attorney representing MRM Manlin Development Group, which is in charge of building the home on Harrison.

“We had had all the permits necessary as we went through the building process as is normal,” said Bartlett.

Kirkwood’s setback requirement for homes is they cannot be built less than five feet away from a neighboring property line.

The city tells News 4 the house ended up being built 1.6 feet over that required structure setback line on the north end, meaning there was only 3.4 feet between the home and the property line.

Bartlett says it was not until after the foundation had been poured and work on building the frame began that a survey identified the home was in violation of the city’s code.

“So, we immediately notified the city of the fact that it was built in the setback and, and that was when the problem was first determined,” said Bartlett.

In January, the developer met with the city’s Board of Adjustments for a hearing. The developer requested for a variance to be granted on the site so they could continue to build the property despite the setback difference.

That request was denied in a 3 to 2 vote, despite support from the homebuyer, a neighbor to the property and even some members on the board in favor of letting construction continue.

“And we also had the neighbor come in and testify that he preferred the structure to stay, even with the encroachment into the setback,” said Bartlett. “And keep in mind, this isn’t an encroachment over a property line, it’s an encroachment over a setback, so we were still on our property.”

The developer said construction on that new site is now delayed an additional four months.

A member of the board questioned the hardship this could bring to neighbors now that construction would have to start over, but another member says a violation is a violation.

“We’ve got to make sure that builders understand there is a price to pay,” said one Board of Adjustments member, “That neighborhood has totally changed. That’s not a bad thing, I’m not saying that, but it’s what it is, and change is inevitable. And I don’t have a problem with the change, but please adhere to the law, and that’s what we’re talking about…the ordinances are law.”

News 4 reached out to the city today about the property and the board’s decision to deny request for a variance:

“The board denied the variance on the basis that a mistake by the builder is not adequate justification for a variance. At that point, the builder had to evaluate whether the house could have been altered or moved to come into compliance, but ultimately determined that demolition was their best option.

When building anything in the City builders submit plans for review and are required to build according to the approved plans. The City then conducts various inspections throughout the building process to verify compliance with our codes; however, it is the builder’s responsibility to build according to the approved plans and in compliance with our codes.

At the time this property was initially being built, there was no city requirement for a builder to do a foundation boundary survey before moving forward with construction. As of December 2021, the city started requiring that survey be done to prevent mistakes like this from reoccurring.

“We encountered issues where people [were] building up with the home before getting that foundation boundary survey, which they can do,” said a planner for the City of Kirkwood, “But, they are aware of the fact that they can’t do their framing inspections until they’ve done the foundation boundary survey. So, at that point they’re building at their own risk.”

Bartlett believes at some point after all permits and site planning was approved and when that foundation survey was finally conducted a mistake was made by one of the builder’s subcontractors. MRM Manlin Development Group contracts outside companies to different tasks of the building process, including setting down the stakes where the property is supposed to be built and a company that handles building the foundation.

“We believe it’s the subcontractors’ fault at this point. Which one, we can’t tell you. Whether it was stake drawn, or it wasn’t built where the stakes were put,” said Bartlett. “I’ve heard comments that it was built over the property line, that’s not true. It’s within the property line.”

Bartlett tells me initially his client, the development group, will be responsible for the costs of the building and tear down process, but they may consider pursuing legal action against subcontractors involved.

“We may, we’ll have to see how everything turns out,” said Bartlett. “Right now, there are insurance companies involved that are investigating and everyone is kind of trying to determine where the fault lies, I guess at this point.”

News 4 did reach out to the realtor which was involved in the sale of the home and to see if we could speak with the homebuyer, but we did not hear back. Neighbors to the property declined to speak on camera, but they tell News 4 they are frustrated with the delay in this project as it will further affect noise and construction around their homes.

Berry says whether or not you as a home buyer are getting a new place or adding new elements to your home, it is always best to do a survey and have a realtor who can help you.

“Someone who is there advocating for you…that kind of helps the process go along,” she said.

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