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BARC request approved, trailer tabled
BY CHARLES GARRATT • STAFF WRITER
 | | In November 2006, Burley and Darlene Hise received a building permit to set this trailer on a lot on 615 below Hot Springs. Single-wide trailers are located on the adjacent lots. In July they received notification the building permit was issued in error because the lot is in the flood hazard zone for Hot Springs run (foreground). Monday night, the Bath County Board of Zoning Appeals tabled the Hises' request for a variance and their appeal of the decision revoking the building permit. (Recorder photo by Charles Garratt) |
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WARM SPRINGS - The Bath County Board of Zoning appeals approved a conditional use permit requested by BARC and tabled both a variance request and appeal of a decision by the zoning official Monday night.
BARC applied for a conditional use permit to expand a lay-down yard in the Bath County Industrial Park in Millboro. The industrial park was zoned M-1 Industrial when BARC established the existing storage area. The yard was a permitted use in the M-1 zoning.
The county rezoned the industrial park to B-2 general business making the existing lay-down yard a non-conforming use, County Planner Sherry Ryder explained to the board. The land use regulations permit BARC to continue to use the facility as "grandfathered," but cannot expand it.
BARC representative Jamie Lowry told the board BARC plans to expand the yard by about one and half acres for pole storage. Moving the poles to the industrial park from the BARC office in Millboro will free up space at the office location and make pole loading easier, Lowry said.
Board members discussed the proper section in the land use regulations for the conditional use permit and finally settled on the section for public utility facility. The permit was awarded on a 3-0 vote without time limitation with the conditions BARC will provide screening if necessary.
While the board had a quorum of three members Monday night, Patricia Clark, chair Becky Armstrong and Terry Kershner, the members reached a stalemate on the other two items on the agenda for lack of a second, and tabled action until next month. By then they hope the circuit court judge will appoint Richard Barnes to replace Millboro District member Herb Hardbarger.
Burley and Darlene Hise obtained a building permit to place a manufactured home on a 1/3-acre lot on Route 615, two miles from Hot Springs. The Hises own other lots in the area and there are single-wide manufactured homes on either side of the lot where they wish to place the trailer.
Previous county planner Miranda Redinger approved the zoning request for the building permit based on manufactured homes being permitted in an A-2 agricultural district. In July, Ryder discovered the lot was also in a flood hazard zone. Manufactured housing is specifically prohibited in flood hazard zones by the county flood hazard ordinance.
The flood ordinance is separate from land use regulations but referenced by the those regulations, Ryder told the board. She sent a letter to the Hises advising them to cease operations to place the trailer.
Attorney Betty Cauley represented the Hises in the two actions before the board. First she asked the board to consider granting a variance based on the expenses already incurred. "We're trying to remedy a problem that is not anyone's fault," said Cauley.
Based on the building permit, the Hises had water and sewer lines installed, set footers and purchased a trailer, Cauley said. She estimated they spent $5,000 to date. The trailer is on the lot but not set up.
Ryder contacted David Gunn, floodplain mapping manager for the Department of Conservation and Recreation, regarding the placement of manufactured housing in the flood zone. Gunn responded in a letter that FEMA would allow the installation if the county established regulations requiring the trailer be installed above the potential flood level.
Ryder said she estimated that would be seven feet for the lot in question. Gunn also said in his letter the height above the flood level would impact flood insurance rates.
Cauley said the property and building permit were acquired in good faith as was the money spent to purchase the trailer and install utilities. She also noted the use is consistent with the neighborhood.
County attorney Mike Collins advised the board a variance is supposed to be issued only when the "unique nature of the land creates the hardship." He noted all other lots in the flood plain have exactly the same limitations.
Clark moved the board approve the variance but when Kershner did not offer a second, the motion died. "We've heard a number of variances, " Kershner said, "We've always been very careful about variances."
Kershner noted the board voted to deny a variance request in recent years where the applicant had a partially built building that did not conform to the zoning regulations. Without the variance, she said, he was left with a considerable investment in a structure he could not use.
"Granting (a variance) should only happen when not doing so would almost equal confiscation of the property," Kershner said. While the board members all agreed the Hise case was an unusual situation, they could only agree to table the request until next month.
The board then moved on to the second action brought by the Hises - an appeal of Ryder's decision to revoke the zoning and building permit.
Cauley told the board she felt the decision was an attempt to revoke "vested rights." Eight months after the building permit was issued is too late for the county to be revoking the permit, Cauley said.
Collins said the county took the position awarding of the permit was not a "governmental act" establishing a vested right.
Kershner moved to support Ryder's decision but her motion died for lack of a second. The board voted to table the action until next month.
The board of zoning appeals' next regular meeting will be Monday, Oct. 15 at 7 p.m. in room 115 of the Courthouse.
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