BOARD OF ADJUSTMENT

 

MINUTES

 

Thursday, July 28, 2005

 

 

 

The Blowing Rock Board of Adjustment met on Thursday, July 28, 2005 at 7:00 p.m. Members present were Vice-Chairman Mark Klein, Bob McCants, Carol Horne, Jerry Starnes and Al Wheeler.  Staff present was Kevin Rothrock, Planning Director, John Warren, Building Inspector, Rob Angle, Town Attorney and Sherrie Pitts, Administrative Assistant.

 

 

Vice-chair Klein called the meeting to order at 7:00 p.m.

 

APPROVE MINUTES:

 

Mr. Wheeler made a motion to approve the minutes.   Mr. Starnes seconded the motion.  All were in favor of the motion.

 

For statements to be presented John Warren, Kevin Rothrock, Tony DiSanti, Richard Goosman and Vicki McLean were sworn to the Board.

 

Mr. Rothrock proceeded with the appeal staff report. Mr. Richard Goosman, owner of Meadowbrook Inn, has filed an application to appeal a decision by the Planning Director requiring a conditional use permit for the placement of outdoor dining facilities in a new location on the hotel property. The property is zoned Central Business. The application for appeal was submitted on Friday July 1, 2005, which was within the 30-day appeal period. All property owners entitled to notice of the hearing have received proper notification, and the property has been posted. Mr. Rothrock advised the Board that Mr. Goosman had not received mailed notification of the meeting. He had received a phone notice, picked up a copy of the staff report and is here tonight. Mr. Goosman has appealed the Final Notice of Violation and Notices of Penalty dated June 22, 2005 and June 28. 2005. The filing of the appeal stays any further action by the Zoning Administrator and stays any further civil penalties. The civil penalties for the violation on June 18^th and 19^th are $100.00 per day for a total of  $200.00. The civil penalties for the violations on June 24^th and 25^th are $250.00 per day for a total of $500.00. To date, the total civil penalty for these violations is $700.00.

(see exhibit A)

 

Mr. Wheeler, board member, asked if the sidewalk was on Main St. or in the parking lot on Meadowbrook property. It was confirmed to be the sidewalk on Meadowbrook property.

 

Vice-chairman Klein asked how the complaint had been filed. Mr. Rothrock stated that

Town staff had informed him of what had happened.

 

Ms. Horne, board member, asked if the number parking spaces were in the CUP requirements. Mr. Rothrock commented that the required number of spaces was 122 and there are 123 available.

 

Vice-Chairman Klein commented about the letter from Mr. Goosman where he questioned how section 16-152 was triggered. Mr. Rothrock responded with Section A #2 “If the original use is a combination use (29.000) or planned unit development (30.000), the relative proportion of space devoted to the individual principal uses that comprise the combination use or planned unit development use changes to such an extent that the parking requirements for the overall use are altered.”

 

Ms. Horne asked if tables had been added or just moved. Mr. Rothrock commented that without an inspection he was unable to answer for sure. Mr. Starnes commented that without an application or permit staff can not make a judgment on how many tables are inside, on the veranda, or in the parking area and if parking still complies. Mr. Rothrock stated that he could make a judgement on the photos showing the number of tables that day.

 

Mr. Wheeler commented that it appears there is a buffer of potted plants. Can the parking spaces still be used in front of the buffer. Section 16-152 A #2 is used if reference to parking alteration. If all parking spaces are still usable there is no alteration. Mr. Rothrock advised without a permit process there is no way of knowing. Mr. Wheeler asked if the appeal was for the decision and the penalty. Mr. Rothrock advised that was correct.

 

Ms. Horne questioned if any other outdoor dining facilities with CUP’s moved tables around. Mr. Rothrock listed other establishments that had outdoor dining.

 

With no other question or comments of staff, Vice-Chairman Klein opened the floor to the applicant.

 

Tony DiSanti, attorney, representing Meadowbrook Inn, displayed a site map of Meadowbrook property. Mr. DiSanti pointed out the location of the patio and discussed the fact that the tables and chairs had existed for a long time. He mentioned that the building had been built in 1987 and the first CUP had been issued in 1989. Mr. DiSanti showed the locations on the sidewalk that the tables and chairs had been relocated and advised that they were there at lunchtime during the days in question. Mr. DiSanti displayed a photo showing the tables, umbrellas and chairs on the patio. The next photo showed the tables, umbrellas and chairs relocated along the sidewalk at lunchtime with a few tables still on the patio. The last photo showed tables, chairs and umbrellas on the sidewalk in the parking lot. Mr. DiSanti discussed constitutional rights and how property owners could use their property without government interference. He also talked about NC Supreme Court and rulings that allowed local government to regulate property owners by adopting zoning regulations developed to protect the health, safety and welfare of the public. Limitations imposed on property owners must be stated in a properly enacted ordinance. The ordinance must be strictly construed in favor of the citizen’s rights.

 

Meadowbrook Corporation, owner of Meadowbrook Inn received violation notices on June 22 and June 28 for violation of the Town’s Land Use Code, for placing tables and chairs on the sidewalk in the parking area of their property. In the violation notice it states that placing table and chairs in the parking lot or sidewalk area constitutes a significant change in the business and requires specific approval by the Town Council. Mr. DiSanti discussed Section 16-46 (see exhibit g). He also mentioned Section 16-152 that defines substantial change. Mr. DiSanti stated that the owners of Meadowbrook Inn had moved tables from one side of the creek to the other side next to the wrought iron fence. This did not create additional dining since the tables were moved from one area to another. This does not create a substantial change in use.

 

Mr. DiSanti stated that everyone was here for an appeal on a decision of the Planning Director requiring a conditional use permit for the placement of outdoor dining facilities in a new location on the hotel property. The move is 60 feet for the lunch hours of 11:30 am until 2:00 pm for more visibility to the public for the restaurant. Mr. DiSanti answered questions posed on page four (exhibit A):

#A The road traffic is fifty feet away from Main St., this is a parking area.

#B The sidewalk does not serve as handicap access.

#C Watauga County Health Department came and looked over the area and gave approval.

#D There are no additional tables they are using tables from the deck.

#E The parking space size is not altered.

#F The tables and chairs are consistent with other establishments in town.

#G Operating hours are 11:30 am until 2:00 pm lunch time.

#H Lighting is sufficient it is daylight hours.

#I The screening has been there for years the tables are fifty feet back from the road.

#K There is no impediment for ADA requirements.

 

Mr. DiSanti commented on the reference to CUP’s on page 6 all of the restaurants are added seating except one that did not have the additional required parking. Mr. DiSanti states this is not an issue of being fair; it is the law and the owner’s legal right.

 

Mr. Starnes asked if a Health Department letter was available. Mr. DiSanti said that Ms. McLean could speak about that she had talked with Wendell Fox the Health Department Official.

 

Ms. McLean stated that she had talked with Mr. Rothrock sometime in March to try to make a determination as to whether or not they wanted to try a lunch service on the sidewalk area during busy weekends. Ms. McLean commented that she had talked with Joe Buchanan, ALE officer for this area and with Wendell at the Health Department. Vice-Chairman Klein asked if after talking with Mr. Rothrock had she been told she could not do the outdoor dining without going through the CUP process. Ms. McLean advised that she had been told a CUP was needed. Ms. McLean commented that they had looked into the law and had a different interpretation and did not see why they would need a CUP. Mr. Wheeler asked if in the initial request Meadowbrook had been advised that they would need a CUP. Mr. DiSanti stated that attorney Rick Mattar had looked at the ordinance code and owner Richard Goosman had also read the ordinance code, neither believed Mr. Goosman needed a CUP, this was not a substantial change.

 

There was some discussion between the Board and the Town Attorney about Ordinance Sections 16-152, 16-46, and 16-148 A

 

Mr. DiSanti stated that for the record the only Ordinance charge is Section 16-46.

 

Mr. John Warren, building inspector for the Town of Blowing Rock, stated that there was a question about the violation. This is the reason we have a permit process. He advised that he had talked with attorneys R. Mattar and T. DiSanti about these issues and explained the permitting process to them. They were advised that moving the tables as they had created a new dining space. building and zoning code issues have to be addressed.

 

Mr. Wheeler commented on the parking spaces and how a buffer area had been created to protect the customers from faster moving cars as they park. It appears from the photos that the parking spaces are still valid and usable. Mr. Warren stated that was part of the permit process. Mr. Wheeler commented that he was satisfied that it was his opinion the parking spaces were still valid. The Administrator’s case is that he feels the overall parking has been altered. I am not sure that there is a strong case. Mr. Warren advised that documentation on the parking is needed to show it would be maintained according to code. The barriers at the parking spaces need to show that the parking will remain at 19 feet. This is part of the permitting process.

 

Mr. Goosman had comments on a statement in the staff report about the extraordinary impact of neighboring properties. The patrons would be the biggest impact. This area is not really visible to neighboring properties. As far as parking, barriers and safety of the patrons he has looked at other restaurants and feels his barriers are as good as others in the area.

 

Mr. Klein commented that Mr. Rothrock has made a statement several times that Meadowbrook had not been advised that they could not have this dining just that permits needed to be obtained.

 

Mr. Goosman added that in looking at the Section 16-46 for substantial change and Section 152 substantial change, the only thing in question would be the parking. The parking is still usable and as far as capacity there is no change.

 

Ms. McLean made a statement that Wendell with the Health Department came and did a site visit, Joe Buchanan with ALE came and did a site visit, but no one from the Town came out for a site visit.

 

Mr. Rothrock replied to the appeal process, and commented about safety issues to customers with only a chain and flower pots as a barrier. Mr. Rothrock read requirements for ADA accessibility. He addressed making a site visit and stated that his and John’s visits are set up from the applications presented, permits issued and site plans that are given with the applications.

 

Mr. Angle, Town Attorney, stated that in reference to violation notice dealing with Section 16-46 the courts do require specificity. Section 16-46 specifically references 16-152 so it can be considered in your decision.

 

Mr. Warren, building inspector, spoke and advised that this was a new dining area that had been created, the issue is not moving tables around inside the restaurant or on the patio. Mr. Goosman has created a new dining area according to the NC Department of Insurance. There are issues in the building code and zoning code that have to be addressed.

 

There was some discussion by the board about substantial change and whether or not this constituted that change.

 

Mr. Warren commented that no one on staff had ever told Mr. Goosman that he could not put tables out. He was advised that he needed to present plans and submit an application to help determine compliance.

 

Mr. Goosman advised that in 1995 the CUP issued was for the addition only and did not change anything already there. A CUP was not required when the Meadowbrook was built, in 1992 the swimming pool was built but no CUP was required. The tables have been outside since he bought Meadowbrook.

 

With no further questions or comments. Ms. Horne made a motion to close the public hearing a second was make by Mr. Wheeler. All members were in favor.

 

Mr. Angle commented that the board needed to concentrate on making a decision on the two issues on the table:

1.)    Did a violation of a specified ordinance take place.

2.)    2.) The penalties charged of the violation.

 

Mr. Starnes stated that somewhere it was said it was not an extraordinary impact on the community but they have created a new dining area. He is concerned others may attempt to create dining or move areas without going through the CUP process.

 

After further discussion, Mr. McCants made a motion to overturn the Zoning Administrator’s decision. Ms. Horne made a second to the motion. Mr. McCants, Ms. Horne and Mr. Klein voted for the motion, Mr. Starnes and Mr. Wheeler against the motion. The motion did not pass.

 

There was more discussion on moving the tables to a new location and whether this created a substantial change. There was also discussion that this case was unique from other restaurants in town in that they have room to move tables.

 

Mr. Wheeler made a motion to modify the zoning decision, waive the $700 penalty, and reissue a notice of determination clearly delineating the case of the town within 10 days.

Reissue a written notice to Meadowbrook to cease and desist serving food on the property as it has been within 10 days until a decision is made. No second was made to the motion. The motion failed.

 

The Board discussed the dining space and whether it was a new dining space or just moving tables around to take advantage of the property. All five of the Board members agreed that this area was not a new dining area, and therefore did not constitute a significant change requiring a conditional use permit.

 

Mr. Starnes made a motion to reverse the decision of the Zoning Administrator and repeal the fines.

Ms. Horne made a second to the motion. Mr. Starnes, Mr. Klein, Ms. Horne and Mr. McCants voted for the motion. Mr. Wheeler abstained from the vote. The motion passed.

 

With no further business Mr. Starnes made a motion to adjourn. Seconded by Mr. Wheeler. All members were in favor of the motion

 

 

Adjourn

 

With no further business, the Board adjourned at 10:41 p.m.

 

 

 

 

 

________________________________        ______________________________

Mark Klein, Vice-chair                         Sherrie Pitts, Administrative Assistant