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Tire business permit denied
BY JAMES JACENICH • STAFF WRITER
 | | David Botkin's request to rezone 1.67 acres near Airport Terrace Road and his request to operate a tire business and landscape materials business there were denied. (Recorder photos by James Jacenich) |
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MONTEREY - David Botkin wants to run a tire business on his 1.67 acre lot in an R-2 residential zone off Airport Terrace Road near Monterey. He has a 40x60 feet utility shed on his lot, which was built in 1998.
Problem is, he can't get a conditional use permit to have a tire business there " the Highland County zoning ordinance doesn't allow that. "The regulations for this district tend to protect against the encroachment of commercial or industrial uses and other uses likely to generate noise, crowds, concentrations of traffic, light, dust, odors, smoke or other obnoxious influences," says the ordinance.
So Botkin asked for a rezoning of his lot, situated in the middle of an R-2 zone, to R-3, a medium-density residential district. "The regulations for this district provide for development which is not completely residential ... However, it is basically residential in character, and as such, is protected against encroachment of heavy commercial, industrial, and other uses likely to generate noise, crowds, large concentrations of traffic, light, dust, odors, smoke, and other obnoxious influences," the ordinance states. Commercial operations which "will not adversely affect the health or safety of persons residing in the neighborhood of the proposed use, will not be detrimental tot he public welfare or injurious to property or improvements, will not be in conflictwith the intent of the district, and will comply with all other provisions regulating such uses, are allowed as conditional uses.
 | | Marianne Harman strongly opposed the rezoning of property next to her home citing safety and noise as two of several reasons to disapprove the rezoning and tire business application. |
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R-2 does not specificallyallow automobile service stations, and by inference, tire repair facilities, as a conditional use in an R-3 zone.
The board of supervisors and planning commission considered his requests at a public hearing last Thursday. Planners recommended the county deny the requests. Supervisors went into closed session to discuss potential litigation before making a decision. By Tuesday, supervisors voted unanimously not to approve the zoning request or the conditional use permit application.
The public response was equally divided between those supporting and those opposing the proposed rezoning and subsequent conditional use.
The need for more jobs in Highland is documented in the county's comprehensive plan and the pursuit of additional jobs and businesses in Highland County is the purpose of the Economic Development Authority. Botkin wants to give one or two people a job.
"We have very few jobs in the county as you already know," he said. "Even if we give one or two jobs, I think it is well worth it. There is very little noise. I've sold over 60 sets of tires adjoining landowners cannot tell you when I put them on ... I'm happy to answer any questions." A number of neighbors, while agreeing more jobs would be a good thing, thought more jobs created in their residential neighborhood were not.
Neighbors Michael and Joyce Ralston said the tire business would have a negative impact on the neighborhood by decreasing property values. Joyce Ralston said, "The character of our neighborhood is going to change due to noise ... a neighborhood is not the location for a business."
Scott Lewis, who owns the George Hevener farm toward the county trash collection site, was opposed. He said the agricultural/ residential area would be disturbed by a tire business. He also said it amounted to spot zoning and would make zoning "meaningless." Carla Folks, who owns property adjoining Botkin's land, wrote, "It's not appropriate, the noise is not welcome in a residential area, and it would decrease property values.
Marianne Harman, who bought Botkin's house, which adjoins the lot where the tire business would be located, wrote two letters in opposition. "His project is not conducive to an R-2 or R-3 zone," she said. "The purpose of the district is to protect the residential community. My property is most affected; it borders on his. I will lose thousands of dollars an industrial park is not appealing. When I bought the house, I looked at zoning. If I knew that was his intent, I would never have purchased that house." She also cited safety concerns for her youngest child due to increased traffic and noise.
She said she would be negatively affected by his landscaping business, too, which Botkin planned to move to the property if the rezoning were approved. She asserted Botkin would operate his landscape business whenever he wanted to, even though the county could set conditions on when the business could be open.
Harman alleged that Botkin was already operating a tire business on the lot without a conditional use permit, by his own admission, and was in violation of the zoning ordinance. The ordinance sets a penalty of $250 per day per violation.
"I don't think the proper procedure was followed no permit. Who is going to monitor once it's in there?" she asked. "He is going to continue on some level."
Zoning officialJim Whitelaw said he did not know Botkin was conducting business on the property, but said he would investigate.
Neighbor Dot Terry said, ìI feel that noise carries, and hearing what it sounds like putting tires on a car, it is like living beside a dental office.It is not something I would choose. That view, no lights, no people, no trucks " that's my choice. As highly as I think of how David conducts himself and his property and business, I don't want lights and noise. I chose to live where I live because there isn't anything commercial going on and I would like it to stay that way."
Terry was a strong supporter of Botkin when he applied for a conditional use to open a landscape materials business on Mill Alley, which adjoins The Meadows, a residential community in Monterey.
Resident Tim Beasley said, "It is a zoning issue. The zoning was made that that be residential. It is a residential area and that is what you have to look at." He cited increased traffic to the two-man operation with off-street parking as having a ìnegative impact on those who live in this community."
Harman repeated her opposition. "David doesn't own anything there anymore doesn't own his home there he can build next to his home (in the Meadows) if thatís convenient for him," she said.
Beasley added, "We do need more jobs in this county, but it is a zoning issue, that location is not the place to have it, I wish he could move it to a business zone; he'd be a good manager of it.
Carla Folks, who lives in Pendleton County, W.Va., but owns an older house on Airport Terrace Road used primarily for storing lumber, is opposed to the putting a business in the middle of a residential area.
Other speakers, such as Michael Ralston, continued to decry the daylight to dark, non-stop noise the tire shop might produce.
Local contractor Trey Williams said Botkin's tire business would jeopardize other jobs in the county with tire repair, such as Gutshall's Exxon, owned by Mark Waybright.
Waybright agreed, saying, "I have a tire shop and oil changing business quite noisy. Impact wrenches, air compressors they all make noises. (It would be) poor planning to have another car care center. You have mine, Hiner's (Auto Service in Monterey), Monterey Auto Parts, we have a tire place in McDowell. I think another tire thing is the last thing this county needs. It may create one job or two, but it will negatively affect my business, Gale Jessee's business (Monterey Auto Parts), and Hiner's business. (Jessee) has been there 60 years; he might have to shut his doors.
Botkin had his supporters as well, who cited economic development as a prime motivator for approving the business.
Neighbors Gideon and Peggy Hiner wrote in favor of the rezoning and tire business. They said it was hard to make money in Highland because of the low population. "Botkin's business is appropriate for Highland County's needs and wants," they wrote.
Neighbor Allen Hull said Botkin told him he would take care of problems as they arise, so he was in favor of giving him a conditional use permit and rezoning the property." I think it is a good site for what he wants to do. It's covered in trees; he's doing work inside a building,"
Amanda Harvey-Lindsey said small businesses are essential to Highland County livelihood. "Denying the request would do people of Highland County a disservice," she said. "The spirit of entrepreneurship should be encouraged."
Darren and Sandy Massey said some businesses have failed and some haven't. "This one will thrive and be good for Monterey," they said.
Botkin's property is surrounded by R-2 zoned properties. Commercial uses in an R-3 property are conditionally approved if they do not adversely affect the neighborhood, Whitelaw said. Commercial uses, especially a tire repair facility, are not allowed in R-2 zones.
The board considered the effect on traffic. Neighbor Charles William Simmons said traffic will go behind his house, but it won't be a problem to him.
Botkin did not say how much traffic he expected the business to generate, but in his conditional use application he said he had adequate parking space on his property to accommodate additional vehicular traffic.
The county refuse disposal and recycling center is accessible only through the Airport Terrace Road and carries a certain amount of non-residential traffic that one could argue though it wasn't Thursday night that a tire business on the same road would not add to considerably.
Some neighbors suggested compromises that would make the tire shop easier to accept.
Neighbor Ernest Hull had no objection to the business as long as trees surrounded it. He said it should not pose a noise problem. "I see no problem with it," he said.
Neighbor David Lotts said he would like to see a condition placed on the business that it not be open after 9 p.m.
Catherine Krueger, who lives next to Wilt Simmons' auto body shop in Blue Grass, said there is no problem there and she is not opposed as long as the hours of operation were between 8 a.m. and 5:30 p.m. Monday through Friday.
County attorney Melissa Dowd said, as partial answer to the allegation of spot zoning, "The problem with spot zoning is whether or not the governing body has acted arbitrarily or capriciously." She said if the purpose of the proposed change were to serve only one landowner, it might be questionable, but if it furthered the welfare of the county as part of an overall plan, it could be approved.
Botkin said there were "many businesses back there, you may want to rezone the area to start with."
"All we can deal with tonight is your request," said planning commission chairman Doug Gutshall.
He later added, "In R-2 districts, someone spends their life savings on a home, expecting it to be a residential district. They ought to have that privilege. It has to be something the community needs. This can't be, with this much opposition."
Planner Jim Cobb said, "I talked to a lot of people outside of Highland County, a former economic developer former in Lynchburg, read law people provided me. I support Botkin's initiative to start a business. I can't support it in this location. In six specific areas it is adverse to the comprehensive plan, spot zoning is out. It can't be legally supported. It is not beneficialto the community.
"There is a one word difference between R-2 and R-3," he continued. The (prohibition) changes from commercial to heavy commercial use. If it is not going to work in R-2, why is it going to work in R-3?
"A car care in an R-2 or R-3 can't fitin R-2 or R-3," he said. We have two documents (comprehensive plan and zoning ordinance) that specificallyprohibit it."
Cobb recommended forwarding the rezoning request the recommendation it be denied. The vote was unanimous.
Supervisor Robin Sullenberger, upon receipt of the recommendation, said, "There are legal implications, a lot of things we need to discuss. We will ultimately make the right decision. There seems to be no good decision. It's a matter of private property rights versus good zoning practice. There are a lot of things to consider, (and) we need to consult with counsel."
Sullenberger added the application would never have been accepted in other counties. He also said the comprehensive plan and zoning laws made it clear how the board should proceed.
Supervisor Jerry Rexrode said, "All of us know jobs are very important to Highland County, sometimes there is a time and place to create jobs, sometimes legal issues tie your hands when you can't do it."
The planning commission also recommended denial of the con- recommended denial of the conditional use for basically the same reasons they denied the zoning change request.
Cobb said, "Again, it's right out of two books that govern the county it is not compatible with surrounding uses. It is not consistent with the zoning ordinance. It is detrimental to the public welfare and in conflictwith the intent of the district.
"The comprehensive plan encourages growth in business districts, gradual growth in surrounding areas."
Gutshall agreed. "I don't see this as an acceptable use in R-2 or R-3. This area is residential in character. It should be protected, it just doesn't fitin," he said.
The planning commission on Jan. 24, and Cobb in particular, strongly endorsed an expansion of the tire business run by Lori and Steve Botkin in McDowell. Mountain Tires operates in an R-2 zone in McDowell and has the backing of the McDowell community and many farmers in the area. The planning commission and board of supervisors, in the case of Botkinís proposed tire business, saw neither need nor widespread support for that business.
The board of supervisors met in closed session at the courthouse after the public hearing for consultation with legal counsel regarding potential litigation concerning the rezoning and conditional applications submitted by Botkin. There was no action or discussion following the closed meeting, said county administrator Roberta Lambert.
On Tuesday, the board concurred with the planning commission, and denied the rezoning and conditional use requests.
Sullenberger said, "It is not any more pleasant to make a decision .... I think the planning commission recommended not approving the application. They should be commended for the thoroughness with which they delved into this issue. It (rezoning) is not in keeping with the comprehensive plan. Rezoning alone doesn't permit Botkin to do what he wants to do; he needs a conditional use permit. A conditional use and rezoning are not given without a lot of trepidation and study before doing anything like that.
"We don't want to discourage a new business and have been very supportive of those who want to do it without deviating from our guidelines," he continued. "The planning commission says this is not the right place for this kind of business. We have no choice legally or otherwise than to make the decision we need to make. I make a motion to follow the planning recommendation for nonapproval."
Supervisor David Blanchard agreed with Sullenberger. "The planning commission did a thorough job. With the work they have done I am inclined to go along with their decision. Residential areas need to be protected. The county needs jobs, but we need to put them in the right place," he said.
Rexrode said, "I commend Botkin for applying for it. One job is important to the county. Maybe a car care center is needed. There is no doubt in my mind that if you put it in there or you put it anywhere, it would be one of the neatest in the county. If this board can help you in any way to finda location, we certainly encourage business, we don't want to discourage you from moving forward. (But) we can't do this legally," he told Botkin.
Sullenberger added that the board's decision was based on good zoning practice.
The board, as a matter of form, also disapproved the conditional use application.
Dowd said, "It is my legal opinion that you are obligated to follow your own zoning ordinance. A conditional use for a car care center is not an option without the rezoning. It is my opinion that the court would findthat you have no choice but to reject the application."
Botkin, during public comment near the end of the meeting, said, "I feel like I got robbed on my $200 to get this permit ($100 for the conditional use application, and $100 for the rezoning). From what I understand, it was impossible to get it. If it was impossible, why did you take 200 bucks? My next question is, since you turned this thing down, can I do some work out there for myself, am I right or wrong?"
"Whatever is permitted in a residential district, you can do it," said Dowd. "I don't have my zoning ordinance here. Changing a tire in your own garage on your own vehicle, I don't know anything off the top of my head that prohibits you from doing that in a residential district."
Botkin is considering an appeal of the supervisors' decision to the Highland County Circuit Court.
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