Board of Zoning Appeals

Nolensville Town Hall

March 13, 2008- 7:00 p.m.

Members present were: Chair Bob Haines, Members Tommy Dugger, Charles Lawson, Ken Norman and Brian Truman.  Staff present was Michael Blanks, Town Building Official, Judy Simerson, Building/Codes Department Permit Specialist, Town Planner Henry Laird and Town Attorney Robert Notestine. Applicants Phil and Nancy Taylor and Donald and Nancy Neff were present.  One citizen was in attendance. 

Chair Haines called the meeting to order at 7:00 p.m. and led the Pledge of Allegiance. 

Announcements: 

Chair Haines asked that all cell phones be placed on vibrate and then he went over the procedures of the meeting. 

Approval of Minutes: 

Commissioner Dugger made a motion to approve the minutes from November 8, 2007, and Commission Lawson seconded.  The minutes were unanimously approved. 

Citizen’s Comments: 

There were no citizen’s comments. 

New Business: 

The first item of business was 902 Timberside Drive – Request to Permit with Conditions to allow Accessory Dwelling.  The applicants, Phil and Cindy Taylor, were present and introduced themselves. 

Mr. Laird stated the Taylors were requesting approval for an accessory dwelling of 745 square feet on their residential lot under the Permitted with Conditions article of the zoning ordinance.  Under 2.3.1 Accessory Dwelling/Apartment of the ordinance there are seven (7) conditions that must be met, and the Taylors have met the conditions.  There is one conflict under Section D that states the accessory dwelling shall be no larger than 600 square feet.  This conflicts with SR – Suburban Residential Regulations 222.a that states that accessory dwellings shall be no larger than 750 square feet.  He stated he believed this section was missed getting changed. 

Chair Haines stated his recollection was that the Planning Commission increased this regulation to 750 square feet, and this section of the ordinance failed to be changed.  The 750 square feet is correct. 

Mr. Laird stated staff was recommending approval for the request.   

Commissioner Truman stated the applicants are in compliance with the 750 feet since there are requesting 745 feet.   

Commissioner Dugger made a motion for approval since the applicants are within all the setbacks and all the guidelines.  The motion was seconded by Commissioner Norman, and the minutes were unanimously approved.

The second item of business was 2066 Delaware Drive – Variance to allow Sunroom Addition.  The applicants, Donald and Nancy Neff, were present. 

Michael Blanks, Town Building Official, stated this was a request to allow an encroachment into the rear setback of this property for 15.5 feet.  It does meet the side setbacks.  The residence is adjacent to a very large open area between this development and another development, Benington Subdivision.  This was an unfortunate situation for the Neffs in their appearance before the BZA tonight.  There was no malicious intent on their part, and they were misled by their contractor as to who was responsible for securing a permit for this structure. The Building and Codes Department has made contact with Tom Watson of the investigative section of the State of Tennessee to have a complaint filed against the contractor who erected this sunroom.   

Chair Haines asked if the applicant had any comments. 

Mr. Neff stated that he concurred with Mr. Blanks’ comments.  He stated they were told by the contractor not to worry with getting a permit because he would take care of the permits and everything was fine.  He stated they were quite shocked to learn that they had a major issue with the sunroom.  He stated they enjoyed living in Nolensville and contributing to the area.   

Mr. Blanks interjected to add that this sunroom was constructed by a licensed and reputable contractor.  The superintendent chose to get off on the wrong foot with the town.   

Mr. Neff stated the sunroom turned out beautifully but now there was this issue.  He stated he understood the setback rules. The difference is that their backyard has no contiguous backyard where they are encroaching.  There is a huge green space with trees, a creek, and then more trees and a green space before the other future neighbor’s backyard.  This sunroom is not ruining someone else’s quality of life.  He stated most of the neighbors have commented favorably regarding the sunroom, rather than saying it is an eyesore. 

Commissioner Dugger asked Mr. Notestine if the application should also state that the applicants are requesting a variance for a setback also instead of just asking for a variance for a sunroom addition constructed by a contractor prior to obtaining a building permit.  Mr. Notestine stated that was correct, and the applicants can make a verbal request to amend it tonight.  He stated it is a setback encroachment.  One of the criteria on the variances is does it have some measurable impact on the community, neighbors, etc.  There are no neighbors here tonight that are upset.  In one of the pictures submitted by the applicants, you can see a wall of the next door neighbor that looks like it extends as far out as this sunroom does.    

Mr. Neff stated when they applied for the variance, they were not aware that there was an encroachment.  The builder had told them their lot line was back to where the trees were.  He stated they have learned since that the lot line is forward of the trees.  Mr. Neff stated they were also verbally requesting tonight for a rear setback variance of 15.5 feet.   Mr. Blanks stated there was a 30 foot setback on the rear property. 

Counsel Notestine stated he did not think a homeowner should be punished for what their contractor did, but he hoped the word gets out that contractors cannot build structures across setbacks.  If this was located right next to someone’s home it would cause a problem for the town.  Drainage ditches are sometimes located in these common areas, and the town cannot allow people to build on them.  The town has had problems with this kind of thing in the past.  He asked Mr. Blanks about the utility easement across the back of the property.  Mr. Blanks stated there was no encroachment on the utility easement. 

Motion by Commission Dugger, to approve the sunroom with the condition that the homeowners pay the building permit fee for the addition.  He stated he wished there was a penalty he could assess the contractor.  This is a unique lot without other neighbors behind them.   The motion was seconded by Commissioner Lawson. 

Commissioner Truman stated this was a very tough decision with no ill will against the applicants.  He stated his vote tonight would be to deny the motion.  He stated his view was the BZA did not set a precedent.  However, he stated if he looked at it as if the neighbors would think that the Neffs got theirs approved, let’s roll the dice here.  He stated it is the responsibility of the homeowner to make sure the lot information that they received from their building is correct.  He stated when his family moved to Nolensville they had their own survey of their lot done to make sure that if they made improvements to their lot that they did obtain the proper permits.  He stated he understood that the patio enclosure contractor did state they would take care of the permitting, but he felt the homeowner should have been accountable and made sure that was done.  There are no winners in this situation because the contractor could be made to come back and rip the enclosure off and return it to its original state, because if he had applied properly for the permit, it would have been denied because of the setbacks.   

Mr. Neff stated during the time period when the contractor assured him they would take care of the permit that his wife was going in for major surgery.  He stated they normally would have been more diligent.  He stated he looked to see if the contractor has given him this information in writing, but he did not find it.  He stated they requested the builder to be present tonight but they refused. 

Mr. Blanks stated in this case, the superintendent was promoted within the confines of doing this from the time this was completed until now.  He is doing all he can to make sure his superiors are now aware of this.  The codes department is trying to get the state involved in this, and this situation and the actions of the contractor are not going to go unnoticed.  This issue may be settled here tonight, but it is not settled with the contractor.

Mrs. Neff stated she has complained to the customer service department of this international company.  They should have known what they were doing in regard to the permitting. 

Commissioner Dugger stated this was a tough decision and he had come prepared to vote against the approval, but something changed his mind. 

Mr. Neff stated the reviews standards plus the general provisions under the zoning act are intended that no harm comes to the town or the neighbors, etc.  He stated he felt they were okay under the general provisions, but they do not have the setbacks.  In Section 9, under the variances and reviews, one of them is that the physical characteristics of the property must be taken into account. 

Mr. Notestine stated if this has been built in a drainage easement this would have been a huge problem for the applicants and the contractor.  Mr. Neff stated the sunroom was built upon an existing concrete patio that was already in place.  

Chair Haines stated under the ordinances, a pad can be put there but you cannot put a structure on the pad without a permit.  Mr. Neff stated it was an existing pad with a little bit of concrete added outside the door to sit on.   

Chair Haines stated for the BZA to grant the variance, the guidelines state, “it shall be shown that circumstances attached to the property that do not generally apply to other property in the neighborhood”.  He stated the BZA was very limited to the law.  

Commissioner Lawson stated he agreed with Commissioner Dugger and he had come to the meeting prepared to vote no on this request.  There are circumstances that shed a little more light on the situation.  

Mrs. Neff pointed out that the drainage was there and it filled in at the house before them.  Mr. Blanks stated the drainage was piped under in that area. 

Counsel Notestine pointed out that Winterset Woods was a nice subdivision but when it was developed it was not done under the Town of Nolensville’s supervision because it was in Williamson County.  Right after that, the town annexed this development.  The Town must make sure that drainage easements are not blocked because it can cause flooding and groundwater problems.  If the town allows homeowners to build sunrooms in drainage easements, there will be no end to the problems. 

Chair Haines stated this was not an easy decision.  He stated if there was no further discussion, he would call the question. 

Commissioners Dugger, Lawson and Norman voted yes for the motion, with Commissioner Truman and Chair Haines voting no.  The motion passed 3 to 2. 

Mr. Blanks asked if stipulations could be added, and Mr. Notestine stated conditions were added as part of the motion that the Neffs would pay the building permit fee. 

Adjournment: 

A motion was made and seconded to adjourn, and the meeting was adjourned by acclamation at 7:25 p.m.