Board hears testimony

in pergola dispute

Ray Scherer

Talks were temporarily suspended last week in an appeal involving a city decision to deny a building permit for a Hermann bed-and-breakfast.

A four-hour-plus public hearing was held last Wednesday, Nov. 10, at city hall to consider the appeal from Brant Wilkins, owner and operator of the Captain Wohlt Inn on East Third Street. Wilkins had sought a building permit to construct a pergola, which according to Webster's definition is an arbor, trellis type of structure that usually consists of parallel colonnades supporting an open roof of girders and cross rafters. A pergola's correct definition and description, as it pertains to local and international building codes, has become one of the centerpiece's of the ongoing controversy.

The building permit application submitted by Wilkins was denied, leading to the appeal. Hermann's zoning inspector, Lee Riegel, rejected the permit for the structure at 119 E. Third St., citing a violation of setback provisions in the city's code, regarding proper distances and measurements for construction in side or rear yards.

The hearing was held before the city's Board of Adjustment, with chairperson Laurie Sutton explaining that no public comment would be accepted -- despite the presence of a packed crowd in the Board of Aldermen room. Sutton advised audience members to speak directly with their respective alderman to discuss the process involved in the matter.

The hearing was conducted in a quasi-court-like manner, with attorneys representing Wilkins and the city, yet without a presiding judge to oversee the proceedings. The board was allowed to periodically ask questions of witnesses and the attorneys.

Representing the legal interests of Wilkins, attorney Christopher Graville of Des Peres began with an opening statement that called into question the city's treatment of his client with threats, "like he was running a drug house." City Attorney David Politte said the city denied the application based on a violation of the setback rules.

Sutton said any matters that involve Wilkins and the city don't pertain to the matter narrowly regarding the pergola, and therefore weren't going to be part of the discussion and consideration. She asked that those references of past controversies be kept to a minimum.

City Administrator Tricia Heaney was called to testify on her recollection of events concerning Wilkins and his effort to gain approval to build the pergola. Heaney said that any size of a building on the Captain Wohlt property more than 120 square feet required setback approval. But a letter to Wilkins from the city did not state that requirement. She also said Wilkins never went before the Landmarks Commission to seek necessary permits.

Police Chief Marlon Walker was sent out to the inn four times between March 22 and June upon requests by neighbors to take action regarding construction of the pergola. Wilkins had expressed frustration to the city on the process.

"Ignorance of the code is no excuse," said Board of Adjustment member Jon Held at one point.

In response, Graville said his client believed he was in compliance with the code, despite being given multiple explanations. He said any policies that were unwritten were therefore unfair to Wilkins. He said the idea that Wilkins was ignorant of the city's building code is false. He added the city never asked for a drawing or a photo of the planned pergola.

According to Graville, the city didn't extend a building permit for similar type of construction at another property in Hermann, and said that's relevant to his client's treatment.

Walker also testified, confirming the four times he was asked to see Wilkins about the property dispute. Riegel also testified, stating Wilkins contacted him to ask whether he needed a permit to build the pergola. He said the permission wasn't needed if the structure was going to be less than 120 square feet.

"It's a standard. I repeat that to everyone," said Riegel, adding that removing a roof would bring the construction into compliance with the city.

"The fact that he put a roof on it changed the definition entirely," he said.

There's no definition in Hermann's code of when a pergola becomes an accessory structure, according to Riegel.

He told Board of Adjustment member Rick Owsley that the purpose of a certain construction never enters into his decision on permits.

Wilkins himself was called to testify, and said there were several neighbors who liked the pergola. He told Graville that Riegel never mentioned the square footage requirement to him.

"I am going to fight for my rights. I am a businessman," he said. "I'm not a guy that likes to fight."

He said the pergola's purpose was to help keep guests free from rainfall. Wilkins said he's willing to be involved in a compromise. Politte said he's always willing to discuss compromises, but wanted to know if that would call for diverting from the city code. Sutton said a definition of a pergola will have to be inserted into the codebook to prevent such confusion from happening again. Graville said he's also willing to help come up with a solution.

Politte received permission from the board to compile findings of fact and conclusions of law, which had already been prepared by Graville for his client. Sutton said the board would then publicly offer its opinions on Wilkins' appeal at an upcoming meeting.