Board of Zoning Appeals

Town Hall, December 12, 2006, 7:00 p.m.

Members present were Chair Bob Haines, Pat Aldred, Joe Curtsinger, Larry Gardner and Charles Lawson.  Staff present was Recorder Cindy Lancaster and Engineer Rich Woodroof.  Applicants Austin Pennington and Mr. Christopher Kleczynski of 3325 Redmon Hill Lane were in attendance.  Six citizens were present.


Chair Haines opened the meeting at 7:01 p.m. and led the Pledge of Allegiance.

Commissioner Aldred made a motion to approve the minutes from November 14, 2006, Commissioner Lawson seconded and this passed unanimously.

Chair Haines asked for citizen’s comment.  Applicant Mr. Austin Pennington representing McFarlin Woods asked the Commission to defer his request until next month.  He has further data that he will have available at that time.  Commissioner Gardner made a motion to defer until January meeting, Commissioner Aldred second and this passed unanimously.

Mr. Christopher Kleczynski, 3325 Redmon Hill Lane requested a variance to build a 12 X 20 deck.  He stated that he had began construction of this deck without seeking the proper permits through the town.  He stated that he had purchased a hot tub and began construction of a deck.  Mr. Blanks, Town of Nolensville Building Inspector, stopped and notified him that he would have to cease construction until permits were issued.  He stated that he was building the deck to protect children and individuals that may have access to the hot tub.

Commissioner Lawson made a motion to approve the variance, Commissioner Gardner seconded.

Commissioner Aldred asked the Town Engineer if he knew the regulations on hot tubs.  Engineer Woodroof stated that he did not know the regulations and would have to research this in the building code.

There was extensive discussion on fencing the yard.

Commissioner Gardner noted that the deck would be approximately three feet from the property line.  Mr. Kleczynski noted that he has argued with the builder over the validity of the property line.

Commissioner Gardner stated that he has a problem with granting this variance.  He stated that the builder is aware that a deck of this size cannot be constructed on this lot.  That is the reason a patio is constructed at that location and not a deck.

Commissioner Lawson inquired to Engineer Woodroof’s recommendation.  Engineer Woodroof stated that this is a Board of Zoning Appeals decision.

Commissioner Curtsinger stated that there had never been a request that would be this close to the property line.

Counsel Notestine stated that due to the shape of this lot it would be difficult for him to build a deck anywhere else on the property.

There was much discussion on the hot tub and the construction of a fence.  Commissioner Curtsinger stated that the hot tub is not the issue in this request.  The applicant has requested a variance for a deck.

Commissioner Gardner stated that he was sorry that Mr. Kleczynski had pursued construction on the deck, although there was a patio currently at that location.  Commissioner Curtsinger stated that this opens the door to go to a “zero” lot line.

Mr. Kleczynski asked the board if he cut two foot off of the deck and brought it in line with the patio, would that be acceptable.

Commissioner Curtsinger inquired to the difference between a patio and a deck.

Engineer Woodroof stated that a deck is viewed as a structure.  He stated that if there is a fire it could be an obstruction.

Mr. Joseph Tiratto, neighbor of Mr. Kleczynski, asked if it made any difference that his backyard faces a common area.

Commissioner Curtsinger stated that he felt this would be interpreted as the property line and not the common area.

Mr. Kleczynski noted that this would be a hardship for him.  Commissioner Gardner stated that it was hard for him to see the hardship due to the patio being in that location.

Chairman Haines made a motion to amend to allow a 10 X 20 deck to be constructed, with 48 inch approved fencing and self latching spring loaded lock, Commissioner Lawson seconded.

Engineer Woodroof noted that when application is made for the permit, the hot tub criteria must be met by the International Building Code.

Commissioner Curtsinger stated that he felt the ultimate question is, “was this self-imposed.”  He noted that this homeowner may not be able to have a hot tub.

Chairman Haines withdrew his motion, Commissioner Lawson withdrew the second.  Chairman Haines made a motion to allow a 10 X 20 deck be constructed, with all applicable building codes being met, Commissioner Lawson seconded.  The vote was taken with Chairman Haines and Commissioner Lawson for, Commissioners Aldred, Curtsinger and Gardner against.  The amended motion failed due to the lack of a majority vote.

Mr. Kleczynski stated that he found this very troubling that this has been addressed before and allowed under the hardship criteria.

Commissioner Gardner stated that two previous request were due to the door of the home being far off of the ground.  This request was to construct a larger deck.

Mr. Kleczynski stated that three other residents were granted variances since October of 2005.

Counsel Notestine noted that each variance case stands on its own merit and taken under consideration individually.

The vote was taken to allow a variance to construct a 12 X 20 deck.  Chairman Haines and Commissioner Lawson voted for, Commissioners Aldred, Curtsinger and Gardner against.  The motion to allow a variance failed due to the lack of a majority vote.

Mr. Kleczynski asked the commission for their reason.

Commissioner Gardner stated that he did not see a hardship and felt it was self imposed.  It would put the deck on the property line and a patio currently exist.

Counsel Notestine noted that 9.2.5 states that the standards that are not met must be specified.  Commissioner Aldred stated that a patio is there.  Commissioner Curtsinger stated that the house was constructed with a patio to meet the town’s code.  This is why there is not a deck constructed on this lot.

Chairman Haines stated that due to the house location, the deck would make this lot a zero lot line.  Your situation is working with zero inches and other request had 8 feet.

Mr. Kleczynski stated that this home should have never been approved to be constructed on this lot.

Commissioner Curtsinger stated that he is not the only resident that would like a hot tub.  He stated that he would like to see and review the regulations on hot tubs.  Engineer Woodroof stated that he would research, although he would not think a hot tub could go outside the building envelope.  Commissioner Aldred stated that this Commission needs those rules and regulations.

Counsel Notestine stated that the variance request is for the construction of a deck.  The hot tub is not the request.

Mr. Kleczynski asked for Commissioner Curtsinger’s opinion for denial.

Commissioner Curtsinger stated that it is not allowed.  The standard is a patio and that is why the builder did not construct a deck.

Counsel Notestine advised the applicant that there is no other remedy allowed at the town level.  He could seek legal advice and be heard in a court of law.

Ms. Tricia Wilkens, stated that they had received notice about a variance request in regards to underground utilities.  She was here tonight to inquire about this request.

Engineer Woodroof stated that they are requesting to have above ground utilities and not underground.  He stated that this applicant has requested to be deferred tonight and will be heard next month.

The meeting adjourned by acclamation at 7:55 p.m.

Respectfully submitted,

Cindy Lancaster

Town Recorder