Town of Maggie Valley

Regularly Scheduled Zoning Board of Adjustment Meeting

Thursday, February 10, 2005

MINUTES

Members Present: Chairman Jay Ring, Phil Wight, Larry Dubuke, and James Hannan

Staff Present: Planning Director Kevin Byrd and Town Clerk Vickie Best

Others Present: Approximately twelve people to include Mayor Pinter, Alderman Aldridge, Billy Brede, and Brenda O’Keefe

Meeting Called to Order

Chairman Ring called the meeting to order at 5:00 p.m. February 10, 2005 in the Town Hall Boardroom.

Approval or Correction of Minutes: January 13, 2005

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

MR. WIGHT SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

Old Business:

Update on Education Curriculum

Mr. Hannan reported that he is reviewing documents from the State and assessing the ordinances. When new members are appointed, the curriculum will be ready to proceed in a timely manner.

Chairman Ring expects an appointment of a new member and an alternate member at the next Board of Aldermen Meeting.

Review & Update OF Board of Adjustment Rules of Procedure

Mr. Hannan is in the process of developing Standard Operating Procedures therefore it would be premature to make changes to the Rules of Procedure.

MR. DUBUKE MADE A MOTION TO AMEND THE RULES OF PROCEDURE TO REFLECT 5:00 P.M.

IV. MEETINGS

A. Regular Meetings.
Regular meetings of the Board shall be held on the second Tuesday of each month at 5:30 p.m. in the Board room of the City Hall; provided that meetings may be held at any other convenient place in the Town if the chairman so directs before the meeting.

MR. HANNAN SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

The Board members discussed the e-mail sent to the Planning Board, Board of Aldermen and the Zoning Board of Adjustment.

TOWN of MAGGIE VALLEY 3987 Soco Road Maggie Valley, NC 28751

Planning & Zoning Department 828-926-0866/ext. 104

STAFF REPORT

Date: January 14, 2005

To: Board of Alderman

From: Kevin Byrd, Planning Director

Subject: Plan Review Bodies for Subdivisions and Planned Unit Developments

Given recent and/or potential land development activities in the Town of Maggie Valley, a review of our procedures for subdivision and Planned Unit Developments (PUD) became imperative. Two items of concern are being brought forth. First, the process for reviewing PUDs is not clearly established in our ordinances. Second, the ETJ ordinance (Ord #279) states the Zoning Board of Adjustment shall review all subdivision of land in the Town's ETJ, this conflicts with the Subdivision Ordinance.

To address the first item, review bodies for PUDs, I submitted a question to the NC Planners listserv to determine common practice of review for jurisdictions with both a Planning Board and Zoning Board of Adjustment. I determined there are three methods commonly executed.

1) When a Board of Aldermen grant Special Exceptions and approve subdivisions, the Planning Board and Zoning Board offer recommendations towards approval/denial. 2) Some Planning Boards do all subdivision approval and special use permits while the Zoning Board only hears cases of variances and appeals. This is quickly becoming the most common organization of duties as ordinances are rewritten and updated since the function of both Planning Boards and Zoning Boards are evolving. This would require the Town to perform an ordinance re-write. 3) The most common corrective method solicited to me via the listserv is to have our Planning Board offer a recommendation to the Zoning Board of Adjustment. Upon review of our ordinance, this appears to be the method implied, however, not explicitly carried out. Below is an excerpt from the Zoning Ordinance.

Ord. #265 Zoning- Page 50

(3) The Board of Adjustment shall request the Maggie Valley Planning Board to review and make recommendations concerning the special exceptions relative to the following considerations:

(a) Relation of the special exception to applicable elements of the planning program.

(b) Appearance of the special exception relative to location, structure and design.

Since a PUD requires a special exception approval only granted by the Zoning Board, they have the final approval. However, items (a) and (b) above lead one to believe the Planning Board does have a role in the process.

It is the staff recommendation that the Town formalize the PUD review process in the manner of an ordinance amendment to direct PUD applicants to submit plans for Planning Board review therefore gaining a recommendation to the Zoning Board. This proposed method does not remove power from either board; rather it ensures best management practice by involving both boards and safeguards the Town's development standards.

For the second item, currently a discrepancy exists between the ETJ ordinance and the Subdivision Ordinance (Ord #208). The Town's ETJ ordinance clearly specifies the Zoning Board as the review body for subdivision of land in the ETJ, while the Subdivision Ordinance makes no mention of the Zoning Board. Below is the excerpt from the ETJ ordinance that grants subdivision review authority to the Zoning Board.

Ord. #279 Extraterritorial Jurisdiction (ETJ)- Page 3

Duties as to subdivisions.

(a) The Board of Adjustment shall review from time to time the existing regulations for the control of land subdivision in the area and submit to the Board of Aldermen its recommendations, if any, for the revision of such regulations.

(b) The Board of Adjustment shall be the review authority for all proposed plats of land subdivision.

It is the staff recommendation to amend the ETJ ordinance to grant the power of subdivision approval to the Planning Board paralleling the Subdivision Ordinance. A minor ordinance amendment is necessary to change the titles of review boards and shift the above insert underneath the duties of the Planning Board.

While performing this thorough review of the Town ordinances and after being very well acquainted with them over the past seven months of employment, I would like to plant a seed of thought for the Board of Aldermen. I recommend you consider contracting the services of an outside agency to perform an ordinance re-write. During the course of my research on this issue I reviewed several ordinances from comparable communities in North Carolina and I found our ordinances to be inadequate at many levels.

Items of concern towards our current ordinances (condensed list):

1-We have many amendments which need to be formally incorporated

2- The procedures and duties for boards and staff is lacking clarity. This

often leads to uncomfortable territory when permitting and enforcing ordinances.

3- The Town has immediate needs to address safe development by adopting new ordinances, however, it is difficult to start new programs

while current programs such as subdivision and zoning have significant faults in the antiquated guiding documents.

I understand this is a significant undertaking, but for the Town to move forward under the current development pressures this is the path that would lead to harmonious business. Ultimately, it can ensure the health, safety, and welfare of the citizens and provide an efficient means for the development community to do business, all the while limiting the liability of staff, elected and appointed officials.

Chairman Ring is currently formulating a response.

Mr. Byrd referred to the staff report dated February 9, 2005.

Town of Maggie Valley

Phone 828-926-0866/Fax 926-3576 3987 Soco Road Maggie Valley, NC 28751

Planning & Development @ Extension 104

STAFF REPORT

February 9, 2005

Re: Subdivision Review Authority and Ordinance #279

Dear Board of Aldermen, Planning Board and Zoning Board of Adjustment,

I spoke with Craig Justus at length yesterday in regards to subdivision review authority and the conflicts present in Ordinance #279 (ETJ). In brief, our Zoning and Subdivision Ordinances indicate the Planning Board as the appropriate review body for major subdivisions. This power is granted to the Planning Board by the Board of Aldermen and is permissible under State Statute 160A-373, "The ordinance may provide that final approval of each individual subdivision plat is given by (1) The city council, (2) The city council on recommendation of a planning agency, or (3) A designated planning agency. In the Town's case, the Board of Aldermen grants the Planning Board as the designated planning agency and is evidenced in the Zoning and Subdivision Ordinance.

Ordinance #279 enacting ETJ for the Town of Maggie Valley is in direct conflict with the existing Subdivision Ordinance. #279 is an amendment to the Zoning Ordinance, "Part I. That the Town of Maggie Valley Zoning Ordinance be amended to include the following (remainder of ETJ ordinance follows)," also witnessed in, "Part II. That the Code of Ordinances of the Town of Maggie Valley be amended by adding a new Article “Extraterritorial Jurisdiction”, to the Zoning Ordinance to read as follows (balance of ETJ ordinance)." Currently the Town has an active Subdivision Ordinance that dictates the Planning Board as being the responsible review body and the ETJ Ordinance dictates the Zoning Board as the responsible review body.

Considering the Zoning Ordinance, amended by the ETJ Ordinance, and the Subdivision Ordinance are in direct conflict, it is imperative that the Board of Aldermen decide which board (Planning or Zoning) has the review authority of subdivisions prior to any further subdivision approval from this date forth. In determining which board is appropriate, please refer to State Statutes 160A-361 Planning Agency (Planning Board) and 160A-388 Board of Adjustment (see attached). To offer guidance, as outlined in the Statutes, Boards of Adjustment are a quasi-judicial board which hear appeals to the ordinances and decisions made by an administrative official.

For a prompt resolution to this matter I direct the Board of Aldermen to my staff report dated January 14^th, 2005 second page, third paragraph. It outlines a simple text amendment to resolve the conflicting ordinances.

To address the issue of Mr. Blyth's agenda request to the Zoning Board for final plat approval in Campbell Creek Meadows, first, the applicant does not have grounds for an appeal since the Planning Board did not take action. Second, the Zoning Board does not act as an appeal court to the Planning Board, if an action is taken. Third, Mr. Blyth is requesting review by the Zoning Board due to a claim the Planning Board did not take action within a specific time frame. Subdivision Ordinance 207 (4), "First consideration shall be at the next regularly scheduled meeting that follows at least seven (7) days after submission. The Planning Board shall make a determination of approval or disapproval of the final plat at its first consideration or at any regular or special meeting within thirty-five (35) days of the plat's first consideration. The Board may extend the review period if it deems necessary in order to obtain additional information necessary for a thorough review of the plat."

The Planning Board reviewed Mr. Blyth's request for final plat approval at their February meeting and decided to extend the review period since the Board of Aldermen will have a zoning hearing dealing with the applicants' property on February 15^th. As the ordinance requires, the Planning Board will reach a determination within 35 days of the plat's first consideration (February 2, 2005).

Considering the Zoning Board is not an appeal body to the Planning Board and the fact that no action was taken by the Planning Board, there are no grounds for the request of Mr. Blyth to be on the Zoning Board agenda.

Lastly, I urge the Board of Aldermen to promptly schedule a joint meeting between the Planning Board, Zoning Board, and Aldermen to rectify the conflict in the ordinances. Following the joint meeting, a public hearing must occur to approve the determined text amendment, thereby permitting consistency between our Zoning and Subdivision Ordinances.

After speaking with his attorney, Chairman Ring will address Council. There were questions among the members if this was a political move to get certain approvals. Chairman Ring felt the Zoning Board is the Quasi-Judicial arm of Maggie Valley and that authority cannot be relinquished. Board members felt there were no conflicts with other ordinances and Ordinance Number 279 clearly spells out how each board should function

While working with the Maggie Valley Resort project the conflict became apparent. The Zoning Board would be granting variances and approving plans.

Proposed ORDINANCE 332

AN ORDINANCE AMENDING THE TOWN OF MAGGIE VALLEY

ZONING ORDINANCE

Add new section 1306.8 as follows:

No variance may be awarded within the C-1 (Commercial) District without being first submitted to the Town of Maggie Valley Planning Board for review and recommendation. The Planning Board shall have thirty –days (30) within which to submit its report. If the Planning fails to submit a report within the thirty-day period, it shall be deemed to have approved the proposed variance.

Sign Setbacks- Article IX General requirements – Sign Location – letter B

Except as specifically authorized herein, all pole (free standing detached) signs or signs detached from a building shall be placed outside the state (NCDOT) right-of-way. No signs of any nature shall be permitted on any public right-of-way except those erected for orderly traffic control, and other municipal and governmental purposes, or directional signs of six (6) square feet or less and referring only to organizations, which are non-profit in character, or to construction projects in progress.

Section 900 entitled General Provisions- 900 Non-Conforming Use

It is the intent of this section to discourage the survival of nonconforming uses and to prohibit their enlargement, expansion, or extension. Any building, structure, or use of land existing at the time of the enactment of this Ordinance or any amendment thereto may be continued subject to the following provision.

They shall not be:

Rebuilt, altered or repaired after damage exceeding seventy-five (75%) percent of its fair market value immediately prior to damage with the exception of being rebuilt within the boundaries of the existing footprints.

The proposed ordinance will go before Council on February 17, 2005

Chairman Ring felt that the planning board having the authority to approve a variance in the C1 District is illegal. Duties need to be spread among the boards in order to keep everything above board. Chairman Ring was troubled that there was a push to rid the Zoning Board of some of their duties.

Mr. Byrd explained that you would be hard pressed to find a town where the Zoning Board of Adjustments approves subdivision plats. Mr. Byrd and staff felt the zoning board approving subdivisions was a typographical error when the ordinance was drafted.

Chairman Ring then discussed the problems that have arisen with Jim Blyth’s subdivision. Mr. Wight concurred adding that Mr. Blyth went through the Planning Department and the Planning Board. Chairman Ring added that the town had sixty days to zone the area and failed to do so. All-the-while erroneous information was being given from both the planning board and the planning department.

Mr. Wight added that people should receive an answer much quicker and that it was a definite conflict of interest when a board is writing the ordinance and enforcing the ordinance.

Mr. Brede, vice-chairman of the planning board felt the planning board attempts to accommodate developers when ever possible. There were some deficiencies such as the twenty-five foot buffer but “there are no political motives at all.”

Discussion continued regarding each board having the ability to review subdivisions.

Mr. Case took exception to anyone assuming that the planning board is politically driven. There should be a balance of powers. There would not be a balance if a board approves the subdivision and approves or denies a variance.

Ms. O’Keefe agreed, adding that the planning board meetings are very professional. The Board voted unanimously to wait until the aldermen rule on zoning. Ms. O’Keefe felt Chairman Ring was attacking the planning director without cause. The ordinances are in conflict but it has nothing to do with politics. The town cannot afford to loose another planner. Ms. O’Keefe suggested bringing in people from the Institute of Government for training.

Chairman Ring felt it was the principal of situation and took it as an insult.

Mr. Case suggested getting the town attorney involved with both boards. Mr. Brede suggested getting an outside firm to do the “house keeping” needed to get the ordinances to fit together.

Chairman Ring felt there were enough qualified people on the boards to revise the ordinances.

MR. HANNAH MADE A MOTION TO EXCUSE MR. DUBUKE AT 6:23 P.M. MR. WIGHT SECONDED THE MOTION.

MOTION CARRIED.

MR. WIGHT MADE A MOTION TO CONTINUE THIS MEETING UNTIL THURSDAY FEBRUARY 17, 2005 AT 5:00 P.M. MR. HANNA SECONDED THE MOTION.

MOTION CARRIED.

______________________________

Chairman Jay Ring

_______________________________

Vickie Best, Town Clerk