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E-911 variance granted; trailer, storage denied
BY CHARLES GARRATT • STAFF WRITER
WARM SPRINGS - Bath County administrator Bonnie Johnson breathed a sigh of relief Monday when the board of zoning appeals approved a variance that will allow the county to proceed with construction on the E- 911 center.
The board voted to deny a variance to Burley and Darlene Hise for placement of a trailer in a FH-1 flood hazard district, however. In a related matter, the board upheld the action by zoning administrator Sherry Ryder, who issued a stop work order on the Hise property when she discovered a building permit had been issued improperly.
E-911 will move forward
The county was forced to apply for a variance from its own BZA when the contractor for the renovation and construction of the E-911 center behind the jail applied for a building permit and Ryder determined the building did not meet setback requirements for an accessory building in a B-1 zone.
Ryder's ruling designating the building an accessory building was key to the need for the variance. A "main" building is allowed a 10-foot setback, but an "accessory" building needs 20 feet.
County attorney Mike Collins said he didn't agree with Ryder's decision that a lot could have only one main building, in this case, the courthouse. But the county elected not to appeal Ryder's decision but apply for the variance instead.
The decision by the BZA to grant the variance was by no means a sure thing just because the application came from the county itself. Earlier in the evening, BZA members denied a variance to the Hises, and they gave the county application the same scrutiny.
Collins told the BZA the unique shape of the lot, the slope of the property and adjacent properties, and the placement of historic buildings on the lot created a unique situation not experienced by other landowners in the same district.
Also, Collins pointed out, the construction would not change the nature of the neighborhood or impact property values.
Two people spoke in support of the project on behalf of the Bath County Historical Society, one of the adjacent property owners.
But the big issue was whether the county suffered a hardship that only the variance could resolve. Supervisor Stuart Hall spoke as the county emergency services coordinator. He summarized the nearly four-year long process trying to find a location for the E-911 equipment.
Circuit court Judge Humes Franklin has authority over the courthouse buildings and grounds, Hall told the board, and he has approved the plans to renovate and expand the old engineers building behind the sheriff's office.
The architects designed the new facility with the understanding they needed only a 10-foot setback, which it meets and exceeds.
Supervisor Richard Byrd stressed to the BZA the county "doesn't want to be treated any different than anybody else." But, he said, the county only owns two parcels of land other than the courthouse that could be used for the center and both of them are too far away from the jail.
"The county has no intention to take property from the tax rolls" to build an E-911 center, said Byrd. That leaves little choice but the plans as presented to the BZA.
BZA chair Becky Armstrong started the questioning after the hearing with a theme other board members would follow: "How far back could you go without having to move the generator?" she asked.
Johnson said the generator might be able to be moved temporarily during construction and located back near the E-911 building, but the loss of parking spaces would be permanent.
Johnson pointed out the county does not own all the "nice green grass we've been mowing all these years" behind the courthouse parking lot.
BZA member Terry Kershner had more questions about other options. Up, down, front, back, side, attached to the jail, and in the jail were all questioned and discarded as options. Kershner explained, "We want to make sure there are no other alternatives." Kershner added the board is "struggling with hardship issues."
Armstrong said a variance is "not something we take lightly." She and other board members consulted with attorney Chris Singleton, who was providing counsel to the BZA since Collins was representing the county in this application.
In the end, the BZA agreed with Collins the county had "explored all the ways to put this puzzle on this lot."
Kershner huddled over her notes for many minutes preparing the motion to grant approval. It detailed the circumstances leading to the request, the sections of code applicable, the county's search for alternatives and ended saying this "is not a special convenience to the county."
The motion to grant the variance passed 4-0 shortly before 11 p.m.
Hise variance, appeal
denied
The first action of the evening was a continuance of two applications brought to the board last month by Burley and Darlene Hise. Attorney Betty Cauley represented the Hises last month and again Monday.
In November 2006, the county gave a building permit to the Hises to locate a single-wide manufactured home on a lot on Route 615 south of Hot Springs. There are trailers located on adjacent lots.
Trailers are a permitted use in the A-2 zone in which the lot is located. On July 18 of this year, Ryder sent the Hises a certified letter saying the permit was null and void because the person who issued the permit failed to realize the lot was also in a flood hazard zone. The county flood control ordinance specifically prohibits trailers in those zones.
No one disputed the facts of the case and Cauley characterized the situation as an "unfortunate mistake." But she told the board, "By morals and good faith you should not punish a citizen when the county makes a mistake."
Collins, acting as counsel to the BZA for this variance, said, "Variance law does not allow a variance to correct a mistake." He noted the applicable sections of the code, saying the hardship required to issue a variance must be related to the property itself.
Armstrong said since the "building permit was issued in error; it was actually null and void from that point."
Collins agreed. The permit did not create rights but the mistake could make the county liable for the damages.
Finally, BZA member Raymond Holloway made a motion to grant the variance.
Member Patricia Clark noted "a financial loss standing alone cannot establish a hardship."
Almost five minutes of silence followed as members contemplated the law and options available. Clark finally seconded the motion so a vote could be taken. The vote was 2-2, so the motion failed.
The BZA then reviewed the appeal of Ryder's action declaring the building permit null and void.
Cauley insisted the letter was "technically correct but came too late in the process." She said the Hises already had a vested right the county could not revoke.
Armstong said she agreed the whole situation was unfortunate.
Kershner said it was "more than unfortunate," but noted the mistake was not Ryder's.
Kershner made a motion to uphold Ryder's action, which the board passed 4-0.
Ashwood mini-storage
units nixed
Last month at the planning commission meeting, Rolf Brunner presented his plan to build six mini-storage units on a 1.23- acre lot along U.S. 220 in Ashwood. The lot is in an R-3 residential district just below the old Strasser building where the hospital ambulance service and Bath County Logowear are located.
At the planning commission, no one spoke either for or against the proposal and the commission recommended approval, 5-0.
The situation was different Monday before the BZA. Ryder told the board she had received a number of letters against the proposed conditional use permit. In addition, she had a petition signed by 43 people also against the application.
Seven people stood during the public hearing to oppose the use of the lot for mini-storage units. The six buildings would house a total of 84 individual units, Brunner said.
Adjacent property owner Carl Hicks summed the concerns. He read the intent of an R-3 district from the zoning ordinance and said the project did not meet that intent, in his opinion.
He was concerned with the aesthetic value, traffic, dust, noise, lights at all hours of the night, and what the units could be used for. "You can't really control what they do once they get a contract on one of these units," he said.
Flooding on the property, security, and other issues were raised.
Brunner sought to address the concerns and alleviate fears of the neighbors but was not able to convince the board members.
Clark moved to deny the permit and the board voted 3-1 in favor of denial with Kershner abstaining.
The meeting was the longest in memory for those attending. Regular business was tabled until next month due to the late hour.
The board of zoning appeals holds its regular meeting on the third Monday of the month in room 115 of the courthouse.
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