The Alleghany County Board of Commissioners held a special
meeting on Tuesday, July 11, 2006 at 6:30pm in the Conference Room of the County Office Building, 90 South Main Street, Sparta, North
Carolina. The purpose of this meeting is to consider an
appeal/variance for the Property Rights Protection Ordinance.
Present: Chair Eldon Edwards, Vice-Chair Warren
Taylor, Commissioner Graylen Blevins, Commissioner Sandy Carter Herndon,
Commissioner Ken Richardson, County Attorney Donna Shumate
and County Manager Don Adams. Clerk to the Board Karen Evans was absent.
Chair Eldon Edwards opened the meeting.
County Manager Don Adams explained
that this is a Commissioners meeting to hear an appeal/variance. He further explained that the Property Rights
Protection Ordinance reads that appeals can be taken to the Planning Board or
the Commissioners and variances has to be taken to the Commissioners. He stated that to his knowledge, without
talking to Mr. Marlow, that there may be evidence produced that may fall under
the variance category and evidence produced that may fall under the vested
category. He further stated that this is
the reason he stated the notice as an appeal/variance. He informed the Board that he recommends that
we proceed as if this is a variance request and there may be multiple ways to
deal with this.
Chair Eldon Edwards stated that this
meeting is a request by Jerry Marlow for a variance. He reminded everyone that this hearing is
judicial in nature. He stated that
before opening the hearing, he would like to give the Board members a chance to
reveal any possible conflicts and withdraw from these proceedings, if
necessary.
Each Commissioner stated that they have
none.
Chair Eldon Edwards stated that the
order of business is; first, hear from the planning staff, then hear from the
applicant and their witnesses, then hear from any opponents to the request. He explained that if the Board is to see
written evidence such as reports and maps or exhibits, the witness who is
familiar with the evidence should ask that it be introduced during or at the
end of his/her testimony. He reminded
everyone that the Commissioners cannot accept reports from persons who are not
here to testify. He asked everyone to
clearly identify themselves for the record before they begin their testimony.
Chair Eldon Edwards sworn in the
following people for this meeting; Jerry Marlow, Amy Pardue, Don Adams, Donna
Shumate.
Chair Eldon Edwards stated that written
evidence should be ruled on before the Board sees it. He further stated that it should be given to
the planning staff and then to him. He
asked is there anyone who would like to examine this or to object to its
admission. He paused. He stated that as there are no objections,
this evidence is admitted. He asked that
the information be passed around to the Board members.
Chair Eldon Edwards asked Planner Amy Pardue to explain
what this request is about.
Planner Amy Pardue stated that
Jerry Marlow is here tonight. She
explained that he has requested a variance for the Property Rights Protection
Ordinance. She reviewed the information
that has been submitted. She stated that
the variance is requested on the lot size minimum under to Property Rights
Protection Ordinance. She continued
reviewing the information that has been submitted.
Chair Eldon Edwards asked if the actual
question could be repeated.
Planner Amy Pardue stated that
the question that is before the Board tonight is that Mr. Marlow owns 1.17
acres in the Piney Creek Township and according
to the Property Rights Protection Ordinance in order to have a manufactured
home park, which is defined as two or more manufactured homes, you must have at
least two acres minimum. She stated that
he is asking for a variance on this due to the fact that he had incurred
substantial expense prior to acceptance of the ordinance.
Chair Eldon Edwards stated that is
almost an acre short of the requirement.
Commissioner Warren Taylor asked if the
mobile homes are on the property.
Jerry Marlow stated that they are on
the lot next to it that belongs to Roger Choate. He explained that they were owned by Roger
Choate, and he purchased them to move to his lot. He further explained that he already had a
trailer on his lot that burned two years ago.
He talked about the convenience of finding the trailers right beside of
his lot.
Commissioner Sandy Carter Herndon asked
about the date of the Property Rights Protection Ordinance.
Planner Amy Pardue said May 15.
Commissioner Warren Taylor asked when
the backhoe work was completed.
Jerry Marlow stated in April.
Commissioner Sandy Carter Herndon asked
if any land will go with the trailers or is Mr. Marlow just going to rent the
space to them with the home.
Jerry Marlow stated that is correct.
Commissioner Sandy Carter Herndon asked
how far apart these two trailers will be.
Jerry Marlow stated that he has
approximately 400 feet of road frontage with one home on one end and the other
home on the other end, which would be approximately 250 feet in between the
mobile homes. He explained that one would
be in the place where the prior one burned, and the other mobile home would go
on the other end of the lot.
Commissioner Ken Richardson asked about
granting a variance for two, does that mean three, maybe four because once the
variance is granted, does it limit it to what Mr. Marlow is requesting or does
it open the door for three or four to be put there.
Planner Amy Pardue stated that
the answer is that it does not because it would require another variance in
order to do any additional work.
Commissioner Ken Richardson asked if
Mr. Marlow has gotten approval from the Health Department regarding the septic
tanks.
Planner Amy Pardue stated that
he hasn’t at this time.
Commissioner Ken Richardson stated that
the Board doesn’t know for sure if it would be two septic tanks or, if he
preferred, one septic tank for both trailers.
Jerry Marlow stated one over-sized
tank.
Commissioner Ken Richardson asked if
Mr. Marlow feels confident that approval could be received from the Health
Department.
Jerry Marlow agreed. He stated that Ben was going to put it in
before he found out he couldn’t do this.
Commissioner Sandy Carter Herndon asked
how many bedrooms each of these mobile homes have.
Jerry Marlow stated two.
Commissioner Sandy Carter Herndon
stated that the septic system would be accommodating four bedrooms. She asked if the property already has water.
Jerry Marlow agreed.
Commissioner Graylen Blevins asked if
the two dots on the Choate property represent where the trailers are.
Jerry Marlow stated that is true.
Commissioner Graylen Blevins talked
about they are moving from a 299 foot road frontage to a 436 foot road
frontage.
Jerry Marlow stated that they will be
farther apart than they are now.
Commissioner Ken Richardson asked if
that is what the dots represent because there is one on the property in
question.
Planner Amy Pardue stated that
yes that is what the dots represent and that one dot represents the trailer
that burned.
Commissioner Sandy Carter Herndon asked
if the burnt trailer had been removed.
Jerry Marlow stated yes.
Commissioner Sandy Carter Herndon
stated that it seems that Mr. Marlow got caught in the transition period.
Chair Eldon Edwards asked if the
Planner had looked over this information.
Planner Amy Pardue stated yes,
she has.
Chair Eldon Edwards asked the Planner
is she concurs with the principal on what he is requesting. He further asked if there was anything she
wanted to add to this.
Planner Amy Pardue stated that
she thinks that Mr. Marlow has presented most of the evidence to the Board.
County Manager Don Adams talked about
reasons for an appeal versus a variance.
He further talked about the reasons that the Board can grant a variance
and specific reasons why the Board can classify it as vested rights. He explained that is why he advertised this as
a variance/appeal meeting. He stated
this is why he tried to lay it out for the County Attorney because there
are very specific reasons for variances and very specific reasons for vested
rights. He further stated that it is available
to this Board to give vested rights or it isn’t and give a variance or
not. He said that is where a legal
opinion is needed.
Commissioner Graylen Blevins asked when
the ordinance was passed.
Planner Amy Pardue stated May
15.
Commissioner Graylen Blevins reviewed
the trailers’ purchase date of March 23.
Chair Eldon Edwards asked if the Board
has further questions for the Planner.
Chair Eldon Edwards asked Jerry Marlow if
he had any comments.
Jerry Marlow stated that he supports
the ordinance but he was already in the process of putting this in. He further stated that some type of grace
period needed to be given. He said that
if he had known all of this before he did this, he wouldn’t have done it. He talked about hardship and borrowing
$10,000 and has already spent ninety-some hundred of it. He stated that he was depending on the rent
to pay the loan. He further stated that
he is making payments on $10,000 with no way to make any income. He explained that he has already lost two
months rent, and he may have lost his renters.
He stated that the two months rent would be like $1,600 or so. He reiterated that he is making a monthly
payment on something he isn’t making any money on.
Commissioner Sandy Carter Herndon
stated that is through no fault of his.
Jerry Marlow agreed. He stated that he has two trailers that he must
get off of Roger’s property.
Chair Eldon Edwards asked if the
variance is approved is Mr. Marlow ready to move these trailers on site.
Jerry Marlow stated yes because he had
already had everything lined up to move the trailers.
Commissioner Sandy Carter Herndon asked
how Mr. Marlow found out this wouldn’t be permitted under the Property Rights
Protection Ordinance.
Jerry Marlow stated that he found out
when he went to get the permit to set the trailers down because Toni, in Inspections,
told him. He further stated that Toni
contacted Amy and that is where all of this got started. He said that was approximately the second
week in June because that is when he was getting ready to put the septic tank
in.
Commissioner Sandy Carter Herndon
stated that she was glad to see the system works but is sorry in Mr. Marlow’s
case but is glad the system worked.
Jerry Marlow talked about being in the
middle and has quite of bit of money tied up.
Commissioner Warren Taylor asked the County Manager which area
the Board needs to act on because it appears to him that action could be taken
on either situation.
Commissioner Sandy Carter Herndon talked
about that is based upon what the law says we can do.
Chair Eldon Edwards asked Mr. Marlow if
he has anyone else to speak on his behalf.
Jerry Marlow stated no.
Chair Eldon Edwards asked if anyone is
present that opposes this request.
Chair Eldon Edwards referred to the County Attorney for further
discussions.
County Attorney Donna Shumate
stated that she has tried to apply what has been said to
what the ordinance itself allows. She
explained that in order to grant a variance there are certain things that the
Board has to find as finding of fact and
you would have to find that if the applicant complies with the provisions of
this ordinance, he can secure no reasonable return from, or make no reasonable
use of his property. She asked the Board
if they are willing to state that in this situation.
Commissioner
Sandy Carter Herndon stated that she isn’t but it is true that he
couldn’t utilize it to the capacity that he wanted to and the property is still
useable for at least one.
County Attorney Donna Shumate stated that what the Commissioners would have to find
to grant a variance is that if the applicant complies with the provisions of
this ordinance, he can secure no reasonable return from, or make no reasonable
use of his property.
Chair
Eldon Edwards asked for the Board’s input.
Commissioner
Ken Richardson asked if that is the one condition that has to be answered.
County Attorney Donna Shumate stated that is one of five, with that one being the
first one.
Commissioner
Sandy Carter Herndon asked to hear the other ones.
County Manager Don Adams handed out copies of that section of the
ordinance.
County
Attorney Donna Shumate read the other conditions: the hardship results from
the application of this ordinance; the hardship is one suffered by the
applicant’s property rather than by the applicant, his neighbors, or the
general public; the hardship is not the result of the applicant’s own actions;
the hardship is one peculiar to the applicant’s property rather than one shared
by surrounding properties and/or properties in the same area.
Commissioner
Sandy Carter Herndon stated that number four applies in this
situation because his actions weren’t against any ordinance that the County had
in place at that time.
Chair
Eldon Edwards agreed but talked about number one being the applicant complies
with the provisions of this ordinance; he can secure no reasonable return from,
or make no reasonable use of his property.
Commissioner
Sandy Carter Herndon asked for clarification if all of these
conditions must apply or one of them must apply.
County Attorney Donna Shumate stated that she thinks because of the word and at the
end of number four implies that all five of them have to be present.
Commissioner
Sandy Carter Herndon stated that she doesn’t see how the Board
can pass it under this. She asked what
the options for appeals are.
County
Attorney Donna Shumate said that under vested rights, a vested right may be
if a use, structure, or parcel of land existed at the time of enactment of this
ordinance, or any amendment thereto. She
stated that the business part really doesn’t apply. She read another vested rights criteria about
an officially approved building permit so long as the permit is valid,
unexpired or unrevoked at the time of enactment of this ordinance. She said she doesn’t know if that applies.
Commissioner
Sandy Carter Herndon asked if he had to have any type of permit
or did he have permission to hook up power prior to the passing of the
ordinance. She talked about that
normally won’t be done until they were actually moved and inspected.
County Attorney Donna Shumate stated that the other one concerns a site plan which
we haven’t had either. She further
stated that the only one that may apply is a use, structure, or parcel of land
existed at the time of enactment of this ordinance, or any amendment.
Commissioner
Warren Taylor stated that he thinks that would be the one that the Board would
have to rely on. He further stated that
the parcel of land existed at the time of the ordinance and he had vested
rights in that property to do what he is proposing to do prior to enactment of
the ordinance.
Commissioner
Graylen Blevins stated that he agrees.
Chair
Eldon Edwards, also, stated that he thinks so.
Commissioner
Sandy Carter Herndon talked about then it would be under the
vested rights provision not under the variances.
Commissioner
Graylen Blevins asked how it needs to be handled under vested rights.
County Manager Don Adams referred the question to the County Attorney.
County Attorney Donna Shumate stated that she is a little uncomfortable because
this is the first time she has seen this.
She talked about the parcel of land existed at the time of the ordinance
is clear but the use or structures were not there.
Commissioner
Sandy Carter Herndon stated that the structures were in existence
and had been purchased.
County Attorney Donna Shumate pointed out that the structures were not on the
parcel of land. She talked about if the
structures had been already set up on this parcel of land before, and then
there wouldn’t be a question at all.
Commissioner
Warren Taylor talked about the key word is before.
County
Attorney Donna Shumate reiterated that she is a little uncomfortable and
would like to do more research before she offers a legal opinion whether this
really comes under vested rights or not.
Commissioner
Warren Taylor talked about waiting on the legal opinion.
Chair
Eldon Edwards asked if this is the only one.
County Attorney Donna Shumate stated that she doesn’t think the other ones apply.
Commissioner
Graylen Blevins talked about variances one through five where it talks about a
hardship is a result of this ordinance applies.
He asked does all five have to apply because of the word and.
County Attorney Donna Shumate stated her opinion is she thinks so.
Commissioner
Graylen Blevins asked if this was referred to during decisions of the Planning
Board.
Commissioner
Ken Richardson stated he wasn’t sure.
Chair
Eldon Edwards stated that he remembers discussing it. He further stated that the County Attorney has a question about 13.9 (a) and needs a clarification.
County Attorney Donna Shumate says yes she does and would prefer that.
Chair
Eldon Edwards asked if there is anything else in order to get it all done at
the same time.
County Manager Don Adams and County Attorney Donna Shumate talked about how long it would take to research this
matter. County Manager Don Adams talked about putting this on the agenda for Monday’s
Commissioners’ meeting.
Commissioner
Ken Richardson stated in response to Commissioner Blevins, he would like
someone to clarify if all five of these conditions have to be met for a
variance.
County Manager Don Adams stated that at this point, he agrees with the County Attorney. He explained that generally
speaking variances are not necessarily an easy thing to achieve. He talked about these conditions are in the
Statutes that is listed out in order to get a variance. He stated that his discussions with the other
attorney involving Maymead and variances were that he had serious questions
whether or not a variance could be given (tape inaudible). He stated that he will check on that for Mr.
Richardson. He talked about certain
criteria for vested rights and legal vested rights that he thinks fall outside
of these standard definitions. He stated
that the real question for legal counsel is the fact that the trailers were
purchased, money was spent, grading already done physically on the
property. He said that he thinks that is
a much more proper road to go down when talking about vested right because the
money has been spent, the lot size was there.
He reiterated that this is a much more legal route to go and probably a
much more successful route as far as if the Board wishes to grant this. He said on the vested rights questions, he
would have to defer to legal counsel because he isn’t comfortable making a
stance on it one way or another.
Chair
Eldon Edwards stated that if the Board could get a clarification on 13.9 (a),
is that the only one under vested rights.
Commissioner
Warren Taylor stated that is exactly where Mr. Marlow’s situation would fall.
County Manager Don Adams stated that there are clear differences between this
situation and the Maymead lawsuit. He
further stated that he needs to defer to legal counsel to have more discussions
about are the differences distinguished enough; like already owning the land,
already invested the money. He said that
you can go down the road regarding what has established vested rights but he
thinks the County will be safer to get an official legal opinion on that.
Commissioner
Graylen Blevins asked about the time frame for Planning Board meetings.
Planner
Amy Pardue stated that Planning Board meetings are on the
second Tuesday of each month.
Commissioner
Graylen Blevins talked about a certain amount of time to respond.
Planner
Amy Pardue stated that for variance proceeding, it is just a
quickly as possible. She further stated
that is at the discretion of the Board to set up the next meeting, if more
information is needed.
County Manager Don Adams stated that if the Board will go back to the page
about appeals/variances and look at 11.1 regarding 30 days to respond under the
appeal section and if more information is needed then this meeting can be
continued.
Commissioner
Ken Richardson asked if Mr. Marlow wanted to set one of those trailers tomorrow
by getting permits and go ahead to get a renter into it while working on the
legality regarding a second one.
County
Attorney Donna Shumate and County Manager Don Adams agreed.
Chair
Eldon Edwards said he would like clarification on 11.2 (c) about
variances. He read the section in
question; if the applicant complies with the provisions of this ordinance, he
can secure no reasonable return from, or make no reasonable use of his property. He asked what reasonable use of the property
is and reasonable return.
County Attorney Donna Shumate stated that if the property had no commercial use at
all.
Chair
Eldon Edwards talked about setting two mobile homes on the property to rent,
does that mean anything.
County
Attorney Donna Shumate said the question is if he can only do one, is that
not a reasonable return.
County Manager Don Adams explained that there isn’t a set answer to that
question. He talked about taking that
question literally. He stated that he
recommends the Board have more conversations about the reasonable return. He reiterated that he thinks the better route
in this situation is vested rights.
Commissioner
Sandy Carter Herndon agreed.
County Manager Don Adams stated that he will go ahead and investigate and
verify the variance side of this.
Chair
Eldon Edwards stated that he needs a little more clear understanding about what
number one means. He further stated that
to him it reads that if the applicant complies with the provisions of this
ordinance, he can secure no reasonable return from, or make no reasonable use
of his property, then if he isn’t going to make any use of it, and then what is
the purpose of the variance.
Commissioner
Ken Richardson gave an example of having an acre of land, and then you can put
one trailer or one house and get a reasonable return.
Chair
Eldon Edwards agreed and stated that if you put two on there, the variance has
to be approved before you can do it.
Commissioner
Sandy Carter Herndon stated that if it is done as a variance
rather than vested rights.
Chair
Eldon Edwards stated that he needs something to clarify this for him.
Jerry
Marlow stated that the Board is saying that he can go ahead and put one down,
and that is true but if one is put then it will be a normal septic tank or if
he gets to put another one, then he will have two tanks.
Commissioner
Sandy Carter Herndon talked about putting the larger septic tank
in place.
Jerry
Marlow stated that is a lot more money, and he would hate to spend a couple
more thousand and not need it.
Commissioner
Graylen Blevins talked about if you are moving both trailers at one time and
not have someone come twice.
Jerry
Marlow, Commissioner Graylen Blevins and Commissioner Sandy Carter Herndon talked about increased costs.
Commissioner
Warren Taylor stated that he thinks we owe Jerry an answer soon.
The
Board of Commissioners and County Attorney Donna Shumate talked about finishing the research on the matter and
scheduling the next meeting on Monday.
Commissioner
Ken Richardson let Mr. Marlow know that the Commissioners’ meeting on Monday is
a 10:00am meeting.
Chair
Eldon Edwards apologized for the delay in this thing. He talked about this is the first request the
Commissioners have had.
Jerry
Marlow stated that it seems to him that there should have been a little bit of
a grace period if you already had something in progress.
Commissioner
Graylen Blevins asked about grandfathering back on the things that were already
in motion.
County Manager Don Adams stated that is the research on vested rights. He further stated that it is difficult for
him to give an exact opinion at this point.
He said that is why he is deferring to legal on this.
Commissioner
Sandy Carter Herndon asked about also discussing this with legal
counsel besides local counsel.
Commissioner
Ken Richardson talked about the procedures for this meeting.
Commissioner
Sandy Carter Herndon stated that she doesn’t think the Board has
enough information about the findings of fact.
Commissioner
Graylen Blevins made a motion to adjourn.
The motion died due to lack of a second.
County Attorney Donna Shumate stated that the Board needs to say that the hearing
is continued until Monday.
Commissioner Ken Richardson made a
motion to continue this hearing until the 10:00am meeting on July 20, 2006.
Commissioner Warren Taylor seconded the motion. Vote 5:0.
Respectfully Submitted,
Karen Evans
Clerk to the Board
Attest:
Eldon Edwards
Chairman