Town of Maggie Valley

Zoning Board of Adjustment

February 10, 2004

MINUTES

Members Present: Chairman Jay Ring Andy Taylor

Larry Dubuke

Jim Mackey

Phil Wight

Members Absent: Jessie Ketchum

Staff Present: Manager Scott Buffkin, Code Enforcement Officer Tim Henson, and Town Clerk Vickie Best

Others Present: Billy Brede, Attorney Jack Kersten, Mr. and Mrs. John Branam, Curtis Klebba

Meeting Called to Order

Chairman Ring called the meeting to order at 5:30 p.m. on Tuesday February 10, 2004 in the Town Hall Boardroom.

The Clerk administered the oath to all parties testifying.

Old Business- Letter From Tony Waddell

The Board acknowledged Mr. Waddell’s letter stating the finding from the January 13, 2004 meeting.

Approval Or Correction of Minutes – January 13, 2004

MR. MACKEY MADE A MOTION TO APPROVE THE MINUTES AS PRESENTED FOR JANUARY 13, 2004.

MR. DUBUKE SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

Elect a Vice-Chair

No action taken.

Variance Request- John Branam- Lot in R1 District smaller than 14000 Square Feet

Attorney Kersten addressed the Board on Mr. and Mrs. Branam’s behalf. The Branam family purchased the property in 1994 when zoning was not in effect. Haywood County Land Records mistakenly combined the lots at the time of purchase. The Branams’ thought they were buying separate lots. Mr. Tim Carver of Carver’s Construction built the two homes located on the property. A creek runs between the homes. The Town of Maggie Valley designated the area Residential 1 when zoning began. The property borders two streets providing a separate entrance for each house.

The Branam Family would like to divide and sell the properties. The use has been in place for several years and the homes fit with the surrounding area.

Attorney Kersten explained the difference in granting a use variance and an area variance.

§ 903. Use variances are concerned with hardship cases, where the land cannot yield a reasonable return if used only in accordance with the use restrictions of the ordinance and a variance must be permitted to avoid confiscatory operation of the ordinance, while area variances are concerned with practical difficulty.

The prime justification for requiring less of an applicant for an area variance than is required in the case of a use variance is that the former does not affect the use of the land. An area variance is thought not to threaten adjacent land with the establishment of an incompatible use, or to hazard the maintenance of a use which will change the essential character of a neighborhood. Such a variance has some capacity to impose an adverse effect on adjacent land, and standards must be imposed to insure the protection of neighboring property, but in the case of area variances, it is assumed by most courts that adequate protection of the neighborhood can be effected without the imposition of the stringent limitations which have been developed in the use variance cases.

§ 904 “Practical difficulties” standard

An area variance may not be denied for failure of the applicant to prove unnecessary hardship, unless the pertinent ordinance requires that exceptional hardship be demonstrated. “Practical difficulties” refers to conditions affecting the lot in question, not conditions personal to the owner. Where an applicant for an area variance has demonstrated practical difficulties, denial of the variance without appropriate findings will not be sustained.

The granting of an area variance is appropriate where the record shows that strict compliance with the ordinance will not support a valid public purpose, which outweighs the injury to the property owner.

Factors to be considered by a court in determining whether practical difficulties exist include:

(1) how substantial the variance is in relation to the requirement

(2) whether a substantial change will be produced in the character of the neighborhood

(3) whether the difficulty can be obviated by some method feasible for the applicant to pursue other than a variance

(4) whether, in view of the manner in which the difficulty arose, the interest of justice will be served by allowing the variance.

§907 A lesser burden of proof is required of an applicant for an area variance than an applicant for a use variance because the impact of an area variance is viewed as being much less drastic than that of a use variance, the difference between undue hardship and practical difficulties being one of degree.

As previously stated by Attorney Kersten, the parcel was originally two separate lots and at the time of purchase the lots were mistakenly registered as one. The Branam family wishes to continue the current use but divide the parcel back into two lots. The lots are separated by a stream with a single family home on each side of the stream. The structures fit with the “lay of the land”. The stream provides a natural division.

Although the homes face separate streets, a right-of-way will be provided.

The entire area is 0.451 acres thus not providing enough land to meet the Residential 1 requirements.

Chairman Ring agreed that dividing the area would not be detrimental to the surrounding area.

Mr. Mackey concurred; stating, “What is there is and has been there”.

Chairman Ring had concerns about there not being a twenty feet separation between the homes. Normally a one-hour firewall is required between structures less than 20’ apart.

Attorney Kersten agreed but added that the structures do not meet code now. The use does not change because a variance is given on the lot size.

Chairman Ring had physically gone to look at the area and measured between the homes. The distance between the structures is approximately 19-feet.

Again, Attorney Kersten stated that the structures are nonconforming. Allowing the parcels to be divided with the creek as the boundary between the homes does not change the use.

Chairman Ring again stressed his concerns.

The homes have city water and sewer as well as a fire hydrant on the lot.

When questioned by the Board, Mr. Henson established that the homes do conform to the neighborhood.

Manager Buffkin encouraged the board to look at section 1306.2 in the Maggie Valley Zoning ordinance.

1306.3 Variances. To authorize upon appeal in specific cases such variances from the terms of the Ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Ordinance will, in an individual case, result in practical difficulty or unnecessary hardship; so that the spirit of the Ordinance shall be observed, public safety and welfare secured, and substantial justice done. The existence of a nonconforming use of neighboring land, building or structures in the same district or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variance. The fact that property may be utilized more profitably will not be considered adequate to justify the Board in granting a variance. Such variance may be granted in such individual case of unnecessary hardship upon a finding by the Board of Adjustment that all of the following conditions exist:

1306.1 There are extraordinary and exceptional conditions pertaining to the particular place or property in question because of its size, shape or topography that are not applicable to other lands or structures in the same district.

1306.2 Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the district in which the property is located.

1306.3 A literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located.

1306.4 The requested variance will be in harmony with the purpose and intent of this Ordinance and will not be injurious to the neighborhood or to the general welfare.

1306.5 The special circumstances are not the result of the actions of the applicant.

1306.6 The variance requested is the minimum variance that will make possible the legal use of the land, building or structure.

1306.7 The variance is not a request to permit a use of land, building or structure which is not permitted by right or by special exception in the district involved.

After review, the board felt it proper to grant the variance.

MR. MACKEY MADE A MOTION TO GRANT THE VARIANCE.

MR. WIGHT SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

Mr. Branam will be able to split the property with the variance being on lot size.

See Attachment 011004-1

Variance Request- Billy Brede / Carolyn Properties – Road Standards and Setbacks

Mr. Billy Brede representing Carolyn Properties came before the board requesting a variance on the road standards and setback requirements for a proposed subdivision within the Town of Maggie Valley’s Extra Territorial Jurisdiction. The proposed subdivision is located at 56 Campbell Mountain Drive with approximately 4.429 acres. The parcel number is 8607-14-0112.

Mr. Don Hunley is designing the sewer collection system. The way the proposed subdivision lays with a creek flowing to the rear, the building sites (footprints) are limited. A twenty-five (25’) foot buffer is required from the top of the creek bank. The front yard setback in Residential 1 is twenty-five (25’) feet. The subdivision will meet the 14000 square foot lots and the seventy-five (75’) foot road frontage but with the buffer from the creek and the utility easement, the area becomes small especially for homes with a two-car garage with a two-car driveway.

The proposed roads, February Lane, Easter April Drive, and Burlington Avenue are to be sixteen feet and paved with a ten feet easement and twenty-foot right-of-way. The cul-de-sacs will have a thirty feet radius.

The roads in Campbell Mountain Estates vary from 45 feet to 20 feet. This area will be a planned unit development. The developer will maintain the grounds and exterior. The main access will come from Fox Run Road. February Lane and Easter April Drive are built to grade. Burlington Avenue has not been graded yet. There will be twenty houses in this phase.

After the Board members reviewed the proposed plat and discussed the disadvantages of having the creek buffer to maintain, the following motion was made.

MR. WIGHT MADE A MOTION TO GRANT A VARIANCE ON THE FRONTYARD SETBACK AND THE ROAD RIGHT-OF-WAY BUT THE ROADS SHOULD BE EIGHTEEN (18’) FEET IN WIDTH AS REQUESTED BY THE ORDINANCE.

MR. MACKEY SECONDED THE MOTION.

MOTION CARRIED UNANIMOULSLY.

The right-of-way will be twenty feet and the front yard setback will be fifteen feet. All setbacks are from road rights-of-way or property line which ever is greater.

See attachment 021004-2 and 021004-3

Cozy Corner Motel- Curtis Klebba- Board Request- Carport Altered to be a Retail Shop

Chairman Ring explained that Mr. Klebba is in violation because he has turned a temporary structure into a place for retail sales.

Mr. Klebba argued that he had met every requirement the Board of Adjustment had made.

Chairman Ring again stated that a moveable carport even with the corners anchored in concrete does not make a permanent structure. “It was never understood by this board that the carport would be used for retail sales.” The carport was to be used for storage and occasionally the public would have access during special events to see antiques. The board has directed Mr. Henson to shut down other businesses from selling from a temporary structure.

Mr. Klebba stated that George Bage, the building inspector, considers the structure permanent and wrote the building permit for retail sales and storage. Mr. Klebba went on to say the building had only been open twenty (20) times since October 10, 2004.

The Zoning Board members felt the building was not designed for retail sales. Mr. Klebba stated that it says in the minutes that the building would be open for the public to see antiques and such.

Excerpt from minutes of September 9, 2003

Request for Variance- Curtis Klebba – Side yard setback

Mr. Klebba is requesting a variance for the side yard setback. Mr. Klebba desires to place a carport between the Knight property and the motel. The carport is 18’ in width. The Knights’ home is four feet from the fence and Mr. Kelbba would like to place the carport within four feet of the fence.

Included in the agenda packet was a letter from the Knight family stating they did not object if Mr. Klebba put a structure within four feet of their property line.

Chairman Ring questioned the effects in the event of a fire.

Access can be obtained from the back and front.

Chairman Ring questioned how the building would be anchored.

The unit has an anchoring kit. There will be 10 ground anchors. The anchors are screwed into the ground. The structure will be semi- permanent.

The building is to be used for storage and will be closed in with sides and doors.

Mr. Wight felt the corners should be permanently attached to prevent movement during high winds.

The Board reviewed the rules for granting a variance. There appeared to be no conflict.

The public will have access to the structure to see antiques and such. Mr. Mackey questioned the regulations when the public is allowed to come into a semi-permanent structure.

Mr. Klebba has very little property to work with and is zoned commercial.

The motel will still have adequate parking.

MR. DUBUKE MADE A MOTION TO GRANT THE VARIANCE ON THE SIDE YARD SETBACK WITH THE FOLLOWING CONDITIONS: BUILDING MAY ENCROACH UP TO FOUR (4) FEET OF THE PROPERTY LINE; ALL FOUR CORNERS MUST BE PERMANENTLY ATTACHED.

MR. WIGHT SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

Mr. Klebba stated that he has a small gift shop located in the front of the motel and this is just an extension of the gift shop.

Mr. Henson agreed that during special events Mr. Klebba could sell items outside the motel that are for sell inside the motel.

Mr. Klebba stated the office inside of the motel is a permanent structure and “that is where the cash register is”.

Chairman Ring again stated that a variance was not granted for retail sales.

Mr. Taylor questioned if the carport, as is, would pass code as a retail operation.

Manager Buffkin felt the building with the signage, and doors open, gives the appearance that it is open for business.

Mr. Klebba disputed the response saying that the customers were coming through the motel, but added that walk-ins were welcome. Mr. Klebba felt he had turned something that was once an eyesore into a nice looking corner.

Mr. Wight questioned the fire code. A one-hour firewall would be required if the structure were permanent.

Mr. Mackey felt the structure is not in compliance with what Mr. Klebba told the board when making the request. “It is up to Tim [Henson] to bring it into compliance.”

Chairman Ring concurred adding that the board feels that they have been taken advantage of by being deceived. Mr. Mackey added that being open for special events when other stores are showing their goods outside is fine, but to be open as a retail shop would require a permanent structure.

Mr. Klebba stated that he would make it legal. Chairman Ring asked that Mr. Klebba “hold off” until they can talk with the building inspector.

MR. DUBUKE MADE A MOTION FOR MR. KLEBBA TO CEASE THE RETAIL SALES IMMEADIATLEY UNTIL THIS ISSUE IS RESOLVED.

MR. MACKEY SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

Chairman Ring with the board’s support directed Mr. Henson to work with Mr. Bage the building inspector to see how or if the structure could be made permanent.

THERE BEING NO FURTHER BUSINESS TO DISCUSS, THE MEETING ADJOURNED AT 7:05 P.M. ON MOTION BY MR. DUBUKE, SECONDED BY MR. WIGHT.

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Jay Ring, Chairman

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Vickie Best, Town Clerk