Fayette County denies appeal to allow nearly completed home in watershed buffer; board cites public-safety and liability concerns

The Fayette County Board of Commissioners on Oct. 23 voted 3-2 to uphold an Environmental Management Department denial of a variance request for 170 Laydon Avenue, where a nearly complete house was built largely inside the county's watershed buffer and setback.

Rick Lindsy, representing the property owner, said the appeal was born of hardship. "On behalf of my client I come to the Board hat in hand," Lindsy told commissioners, saying the owner's health issues and construction financing left him unable to demolish or relocate the structure. Lindsy said a mitigation plan with plantings and wetland vegetation was prepared to address water quality concerns.

Environmental Management Director Bryan Keller told the Board his staff found the structure encroached "92% of the structure in either the buffer or setback," and described the buffer and setback as 100 feet and 50 feet respectively under county standards. Keller said an early survey provided to the owner did not reflect the full buffer/setback requirements, and staff discovered the house only after construction had advanced; a stop work order and citations followed.

Commissioners debated the decision weighing compassion for the homeowner against regulatory compliance and liability to the County. Commissioner Charles D. Rousseau said he was sympathetic but could not ignore the facts of 92% encroachment and potential county liability. Assistant County Attorney Ali Cox warned that approving an after-the-fact variance in such circumstances could create a precedent that would undermine enforcement of county ordinances.

Vice Chairman Edward Gibbons moved to overrule the staff denial; the motion failed 2-3 with Hearn, Oddo and Rousseau opposing. Commissioner Rousseau then moved to uphold the denial; the motion passed 3-2 with Gibbons and Commissioner Eric K. Maxwell voting in opposition. Lindsy said the owner would pursue appeal in Superior Court.

Building Safety Director Leslie Nieber and County Administrator Steve Rapson told the Board inspections had not been performed by County staff during construction because there was no valid permit, and that third-party inspectors had been used by the builder. Rapson and Cox both said that relying on third-party certifications could expose the County to legal risk if the structure later caused downstream damage or building failures.

The Board did not approve the variance; commissioners directed no immediate change to the ordinance but discussed the case as an example of the challenges posed when unpermitted work advances to near completion.