Town of Maggie Valley

Zoning Board of Adjustment

Maggie Valley Town Board Room

December 14, 2006

5:30 p.m.

MINUTES

Members Present: Chairman Jay Ring, Dean Tomlinson, Catherine Young, Phil Wight, Ron DeSimone, and Connie Dennis

Staff Present: Manager Tim Barth, Planning Director Nathan Clark, and Town Clerk Vickie Best

Others Present: Dan & Lyndia Massey, Otis & Beverly Sizemore, Linda & Andy Taylor, Joann Lyons, Jo Pinter and Ed Jones

Chairman Ring called the meeting to order at 5:35 p.m. in the Town Hall Boardroom.

1. Approval of the Minutes: November 9, 2006

MR. DESIMONE MADE A MOTION TO APPROVE THE MINUTES AS PRESENTED.

MR. PINTER SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

2. Otis Sizemore: Variance Request (C-1 Front Setback Buffer)

See exhibits 2a through 2c.

Director Clerk presented the finding of facts:

The dilemma Mr. Sizemore is facing is that he would like to erect an 800 square foot building on a 0.19 acre commercial lot. He has no problem with meeting the Town’s building setback requirements. However he is having trouble meeting the Town’s parking requirements while also meeting the Town’s 10ft front yard buffer which must remain greenspace. Mr. Sizemore needs 5 parking spaces, per the Town requirement (one space per 200 square feet and 1 space per employ on maximum shift). Without entering the buffer area he has room to place four parking spaces. Mr. Sizemore would like to have a total of eight spaces. He is requesting that the Zoning Board of Adjustment grant him a five foot variance on the front setback buffer, allowing him to place parking area within the buffer line.

The Town believes the more appropriate variance request should be allowing Mr. Sizemore to operate his business using 4 parking spaces (lot C & D) rather than encroaching inside of the front yard greenspace setback.

ARTICLE 1306.3 Variances

Section 1306.3.1

Before the Zoning Board of Adjustment may grant a variance, it shall make

the following three findings which shall be recorded in the permanent record of the

case and shall include the factual reasons on which they are based:

1306.3.1.1

There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. In order to determine that there are practical difficulties or unnecessary hardships, the Board must find that all five of the following conditions exist:

If the applicant complies with the provisions of the ordinance, the applicant can secure no reasonable return from nor make reasonable use of the property. Merely proving that the variance would permit a greater profit to be made from the property will not be considered adequate to justify the Board in granting a variance. Moreover, the Board shall consider whether the variance is the minimum possible deviation from the terms of the ordinance that will make possible the reasonable use of the property.

1) The hardship results from the application of the ordinance to the property rather than from other factors such as deed restrictions or other hardship. Mr. Sizemore is being impacted by the front setback buffer required in C-1. Section 700: No Structure or parking shall be allowed in the green space. Principal Use signs and city sidewalks are allowed Front yard setbacks in C1 shall remain a green space. :All setbacks are from road rights-of-way or property line which ever is greater. He is only asking that parking be allowed in that setback. The placement of the building will meet all setback requirements.

2) The hardship is due to the physical nature of the applicant’s property, such as its size, shape or topography, which is different from that of neighboring property. The property is 0.19 acres and has been terraced to lessen the impact of the sharp slope that was originally present on the parcel. The property also contains several natural springs that are protected by the lower rock wall on the property

3) The hardship is not the result of the actions of an applicant who knowingly or unknowingly violates the ordinance, or who purchases the property after the effective date of the ordinance and then comes to the Board for relief. In an effort to protect natural springs and protect the parcel from continued erosion the owner did terrace the property limiting its future use.

4) The hardship is peculiar to the applicant’s property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a variance would be a special privilege denied to others and would not promote equal justice. There are many small “postage stamp” lots present in Maggie Valley. This one is peculiar in that it has such a strong natural slope. Also most of the other “postage stamp” lots were developed prior to the Town’s Zoning Ordinance that required the front set back to be used for only greenspace.

5) The variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit. That is, the applicant is not seeking to establish, to expand, or to extend in area a non-conforming use. Moreover, the existence of a non-conforming use in the same or in any other zoning district shall not constitute a reason for granting the requested variance. Due to age, many business in Maggie Valley do not have the greenspaced 10ft front setback buffer. The spirit of the ordinance is to create visual separation between US-19 and the surface parking areas of associated businesses.

In granting of the variance, the public safety and welfare have been assured and substantial justice has been done. The Board shall not grant a variance if it finds that doing so would alter the essential character of the neighborhood, materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety or general welfare.

Chairman Ring added that due to the amount of natural springs located on the lot, it would be difficult to cut into the bank.

It would be safer to have parking at the bottom of the parcel.

After further deliberation, the following motion was made.

MR. DESIMONE MADE A MOTION TO GRANT THE VARIANCE.

MR. PINTER SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

3: Tory Pinter: Variance Request (Height Variance)

Mr. Pinter is an alternate member of the Zoning Board of Adjustments and will not be voting on this request.

At the April 2006 ZBOA meeting Torry Pinter petitioned the board for a special exception that would allow him to develop a multi-family housing project in the C-1 General Business Zoning District. The board unanimously approved this request to allow Mr. Pinter to proceed with this project. Although not germane at the time, a few questions were asked about the overall appearance, height, and type of buildings that were to be erected on the property. At that time Mr. Pinter could not answer any of those questions because he still had a considerable amount of pre-planning left to do. However, he did note that most of the area was in the flood plain, meaning it would be developable, but would need to raise the structures one foot over base flood elevation.

After finishing his pre-planning on this project, Mr. Pinter submitted a site plan and architectural elevations to the Town. The site plan showed that the flood elevations would require a finished floor level to begin at least 5 feet above ground level, almost a half a floor. Mr. Pinter is hoping to make the best use of this requirement, by making the flood foundation into a garage level, followed by three livable floors. The total height of this project would as drawn is 51’8” which is almost 7 feet higher than the Town’s maximum height limit.

Director Clark presented the Finding of Facts:

ARTICLE 1306.3 Variances

Section 1306.3.1

Before the Zoning Board of Adjustment may grant a variance, it shall make

the following three findings which shall be recorded in the permanent record of the

case and shall include the factual reasons on which they are based:

1306.3.1.1

5) The variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit. That is, the applicant is not seeking to establish, to expand, or to extend in area a non-conforming use. Moreover, the existence of a non-conforming use in the same or in any other zoning district shall not constitute a reason for granting the requested variance. Due to age , many business in Maggie Valley do not have the greenspaced 10ft front setback buffer. The spirit of the ordinance is to create visual separation between US-19 and the surface parking areas of associated businesses.

US-19 is elevated compared to the area the condominiums will be located; therefore the structures will not appear as tall as one would think. There will be a landscape buffer between the retail area and the condominiums. There will be a buffer between Jonathan Creek and the unit that will be used for common area with walkways, picnic tables, etc.

The board members agreed that by allowing the garages it would save 48 parking spaces from being needed as well as creating less impervious surfaces, thus an environmental friendly option.

MR. WIGHT MADE A MOTION TO GRANT THE VARIANCE AS REQUESTED.

MR. TOMLINSON SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

Mr. Clark went on to inform the board that the Planning Board has discussed raising the commercial height limitation.

MR. DESIMONE MADE A MOTION TO MAKE A RECOMMENDATION THAT THE PLANNING BOARD LOOK AT THE ISSUE OF HEIGHT VARIANCE BY UTILIZING THE LOWEST POINT ON THE PROPERTY AND UTILIZE GARAGE SPACE WITH THREE FLOORS AND A BUFFER AREA TO HELP CONCEAL THE HEIGHT.

MR. WIGHT SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

4: Linda Taylor: PUD Request, Old Towne Estates

Ms. Taylor is seeking conditional PUD approval for Old Town Estates (7696-07-1339) 3.9 acres located off of Moody Farm Road, vacant property/unzoned to the left of Nanny Patch Cove)and Twinbrook (7686-64-5236, 18.7 acres zoned C-1) from the ZBOA. One of the drawbacks of the current ordinance is that there must be a great amount of pre-planning and investment on the part of the developer without knowing if they will be granted a PUD by the ZBOA. The ZBOA was faced with a very similar situation last spring when the rule in Tory Pinter’s favor when granting him a special exception, that allowed him to have a residential use in a commercial zone without him having to complete the “special exception” checklist. In his case, it was not in his best interest to complete the checklist without first being able he could to it because of the tremendous costs associated with that pre planning phase. The ZBOA granted him his special exception conditionally because of the Planning Board oversight in the process would satisfy many of those checklist requirements. Similarly, Ms. Taylor has completed a substantial amount of pre-planning but still has not completed enough to gain full ZBOA approval. A conditional PUD designation may be placed on these projects allowing her to continue her work. There are items on both projects that would need Town Board and Planning Board approval.

See exhibit A:

Ms. Taylor presented conceptual plans for Old Town Estates. This would be an “artist community” where artist make, show, and sell their goods. The areas adjacent are zoned C1 and R3. The reason for needing C2 zoning would be to allow the neighborhood commercial activities. The land has a gentle slope that would support high density.

Ms. Taylor went on to provide the history of the property and the “old home place” that was built in 1880. This structure could be used to display wares, a bakery, or a restaurant. The maximum of twenty-three homes can be built in the area. The water and sewer has been engineered and permits applied for from the State. A planned unit development designation would help to maintain the integrity of the area. The property owners association would take care of maintenance of the common areas. The lots vary in size. The footprint of the home and area for personal landscaping would belong to the homeowner with the rest of the area remaining common area for extra parking.

Ms. Joann Lyons explained that the sewer lines could be maintained within the twenty-foot right-of-way. The roads will be white wash stone with a special mix of BSP.

Chairman Ring asked that the minutes show that Mr. Tomlinson is an alternate member and will not be voting on this issue. Mr. Pinter, as an alternate member will complete a quorum.

Mr. Pinter felt the proposed project would be a nice asset to Maggie Valley and help with heritage tourism.

Chairman Ring felt that C2 zoning would best fit the area, as well as the variance on the setbacks to allowing clustering. Ms. Dennis concurred.

Commercial kilns and similar commercial activities would not be allowed due to the intrusion on the neighborhood. The deed restrictions will handle those issues.

MR. DESIMONE MADE A MOTION TO APPROVE THE PUD DESIGNATION WITH A RECOMMENDATION OF C2 ZONING.

MR. PINTER SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

5: Linda Taylor: PUD Request, Twinbrook

Director Clark provided the history of allowing the Wolfcreek Resort to subdivide their area into 12 lots with cabins. Council did deny the request for a road deviation, thereby limiting the area to the 12 existing homes.

Twinbrook Resort is proposing 61 lots with only 8 lots not having creek-side frontage. There is already a common area with a pool and other amenities. There will be approximately 1.5 acres out of 18 acres that will remain common area. The roads will pose the largest problem. Some units would be negatively impacted if the road were enlarged to 16-feet. Only the footprint of the house and the parking area will be sold. The homeowners association will maintain the remaining areas. The owners want to maintain as much native vegetation and mature trees as possible.

MR. PINTER MADE A MOTION TO GRANT THE TWINBROOK RESORT THE PUD DESIGNATION.

MS. DENNIS SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

The current zoning for Twinbrook Resort is C1.

6: Other Business

The members were very concerned about the cost of getting a variance. The members felt a $75 fee would be much more in line. The Zoning Board of Adjustments is a volunteer board that is present to help the citizen, not to drive them away due to the cost of getting help.

MR. WIGHT MADE A MOTION TO PUT THE ISSUE ON THE NEXT TOWN BOARD AGENDA.

Chairman Ring asked that the Board members attend the meeting to show their support.

MR. DESIMONE SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

Mr. Sizemore agreed, adding that a $200 fee is excessive and is a deterrent for people seeking relief from a problem.

7: Adjournment

MR. WIGHT MADE A MOTION TO ADJOURN AT 7:53 P.M.

MS. YOUNG SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

_______________________

Chairman Jay Ring

___________________________

Vickie Best, CMC, Town Clerk