Town of Seven Devils
Board of Adjustment
Continuation Meeting
August 6, 2007
The Town of Seven Devils
Board of Adjustment reconvened on August 6, 2007 at Town Hall. The meeting was called to order at 5:32 pm by
Chairman Richard DeMott. Other members
present were David Hooper, George Ehlinger, Kathy Copley, Kay Lambert, Loren
Williams and alternate member, Ernie St. Louis. Member Bill Wilkinson was
absent and excused. Also in attendance
were the Zoning Administrator Don Fulkerson and the Town Attorney Rob Angle. Town Clerk Karen E. Daniels recorded the
minutes.
Also present was Lisa K.
Fraley Appalachian Court Reporting who will provide a transcript for Hawksnest.
Chairman
DeMott stated that the Board of Adjustment is quasi-judicial in nature and that
all people speaking, other than Board members, would be sworn in.
Member
Williams made a motion to come out of recess.
Member Copley seconded the motion.
The members agreed unanimously.
The
Town Clerk requested that all people wishing to give testimony sign in. She then requested they stand and raise
their right hand. The people wishing to
give testimony were then sworn in.
Public Hearing for Ski
Hawksnest, Inc. / Lenny Cottom
Chairman
DeMott asked Lenny Cottom if he would like to address the Board. Lenny stated, "I said everything I had
to say at the July 23rd meeting."
Chairman
DeMott asked Attorney Claude Smith if he would like to address the Board. Attorney Smith said, "Yes and this is
not accusatory this is just for the record.
I do have some questions regarding Board Members and the Feasibility
Report which is Exhibit #4.
Previously no body recused themselves.
You know what the regulations and requirements are. Has anything happened since the last meeting
two weeks ago to cause anyone to need to recuse themselves? As this is a legal proceeding, I am required
to ask this question." No Board Members
responded. Attorney Smith then
addressed Chairman DeMott and said, "You and Member Copley are on the Town
Council, correct. Chairman DeMott said,
"That is correct." He
addressed Member Lambert and said, "Your husband is Town Manager, correct." Member Lambert stated, "That is
correct." He addressed Member
Ehlinger and said, "Your wife is on Town Council, correct." Member Ehlinger nodded yes. Attorney Smith said, "Also at a Town
Council meeting there were actions the Town Council took regarding the
possibility of obtaining an appraisal to look into the acquisition of the golf
course property. Is that correct?" Seven Devils Town Attorney Rob Angle stated,
"That was a while ago and yes, there was an appraisal done." Attorney Smith said, "There was also a
Feasibility Report done in March 2007 regarding Hawksnest Golf Course
Recreational Use. Was that requested by
the Town Council? Mr. Angle said,
"Correct." Attorney Smith
asked the Town Attorney if there had also been discussion at Town Council meetings
of the Town taking the golf course by eminent domain. Attorney Angle stated, "That is my recollection." Attorney Smith said, "No Board Member
has discussed this, made comments, or done further investigation of this matter." Attorney Angle said,
"Correct." Mr. Hamm Wilson said
he did not hear any challenger request that anyone recuse themselves on the
basis of these relationships. He asked,
"Is there any request on behalf of Mr. Cottom that any of these
individuals recuse themselves based on these relationships with people that are
on the Town Council?" Attorney
Smith stated, "There are statutes that make it is necessary for an individual
to recuse themselves. If someone is
unable to render decisions in due caution or if there is a financial
interest. We addressed Mr. St. Louis at
the previous meeting and the Board voted that he should not be recused and I
respect the Boards decision."
Attorney Wilson asked Attorney Smith if he was questioning a Board
Members ability to serve based on their relationship to a Town Council member
or if he was requesting they be disqualified because of this dual
capacity. Attorney Smith said, "I
am not raising that issue."
Chairman
DeMott asked Attorney Smith to review the exhibits from the previous
meeting. Attorney Smith said, "Exhibit
#1 is the change in plans presented from 2006 plan to the new 2007
plan. Exhibit #2 is traffic
analysis. Exhibit #3 is a list
of the Seven Devils Community Association, Inc. Exhibit #4 is the Feasibility Report by Municipal
Engineering and Exhibit #5 is folder with pictures of the golf course
property and an article indicating taxing relief by Leigh Ann McDonald from
Golf Business Magazine March 04 presented by Carol Isquith. The Board then marked the Concept Plan Exhibit
#6, the Zoning Administrator's report as Exhibit #7 and the
Cottom's information from the July 23, 2007 Board of Adjustment meeting as Exhibit
#8.
Residents
took the opportunity to make their thoughts and concerns known to the Board.
In
response to comments made by John Beucus Attorney Smith asked Mr. Beucus if he had
been present at the previous meeting two weeks ago. Mr. Beucus said, "No, I was not." Attorney Smith said "Mr. Chairman these
issues were addressed two weeks ago. We
can go through the entire presentation but these issues have been addressed."
Citizen
comments continued and then followed questions and discussion from the Board
with the Cottoms.
Member
Copley referenced the new 8 ½ x 11 drawing presented by Lenny indicating the
new lighting and suggested the drawing be entered as an exhibit. Attorney Smith then requested the 8 ½ x 11
drawing be added to Exhibit #8.
Chairman
DeMott then requested the Town Attorney review Article 12 – Conditional Use
Permits -Section 12.3.6 Action on the Application of the Zoning
Ordinance. The Board reviewed
and discussed the questions and issues the Board of Adjustment will address
regarding the request for a Conditional Use Permit by Ski Hawksnest and the
additional conditions to be placed upon the Conditional Use Permit.
Member
Williams read from the Vision Statement and Comprehensive Land Use Plan: (Page 1)"The Town's natural setting is
the stage upon which all aspects of community life revolve and depend. It is from this point that the work begins
for maintaining a sustainable region of beauty that enhances the quality of
life for all residents and visitors.
The Town of Seven Devils is a residential and recreational community
whose citizens and governance are committed to managing its growth, with a
primary focus on owner-occupied single-family homes and on the preservation and
enhancement of the distinctive and irreplaceable natural beauty of its mountain
setting." (Page 5) "The Town
of Seven Devils' mission is to preserve, protect, and enhance those gifts of
Nature that make up the unique quality of our Town and its environs and ensure
that all values inherent in the Town Vision Statement are realized and
reflected through the enactment, revision, and enforcement of supporting
ordinances, appropriate Town action and other measures as may be
necessary."
Loren
then read his statement, "The proposed facility for which your conditional
use permit is requested consists of a parking area, snow tubing area, and
activities area for a total area of about two and one half acres. It will be located about one third of a mile
from the existing ski slope complex thus creating a new non-contiguous center
for winter time activity with the potential for a center for summer time
activity. The proposed location would
be in a serene area of the golf course adjacent to a long standing residential
development on the Fifth Fairway. It is
inconsistent with the character of the immediate area and not in conformity
with the Comprehensive Land Use Plan as revealed in the above
quotations."
Chairman
DeMott stated, "I agree with the latter statement. We did have some people present who have
voiced those concerns."
Attorney
Angle stated, "I guess we should look at the definition of: The proposed use will seriously interfere
with existing uses." He asked
Loren, "Could you think of a recreational use that would not
interfere." Loren said,
"Golf." Attorney Angle asked,
"Any others?" Loren replied,
"Hiking trails, walking trails."
The
Board discussed concerns regarding #5) The proposed use will substantially
injure the value of adjoining or abutting property. Attorney Angle stated, "Carol Isquith who is a realtor
stated at the previous meeting in her opinion property values could go either
way."
Member
Williams made a motion to close the public hearing. Chairman DeMott seconded the motion. The members agreed unanimously.
Application for Conditional
Use Permit - Ski Hawksnest, Inc. / Lenny Cottom
The
Board of Adjustment shall issue the Conditional Use Permit unless it concludes,
based upon information submitted at the public hearing, that one (1) or more of
the following is true:
Each
statement was voted upon and findings recorded as follows:
Member
Williams made a motion to approve the Conditional Use Permit on the basis the
application is complete. Member Copley seconded
the motion. The members agreed unanimously.
FALSE:
Unanimous
FINDING OF FACT:
The Board agreed the application is complete. Two copies of the application, scaled site plan and statement
from the applicant have been filed with the Zoning Administrator.
The
Board agreed Conditions to be placed on #2 were as follow:
Member
Copley made a motion to accept the conditional use permit based on the above
conditions. Ernie St. Louis seconded
the motion. The members agreed
unanimously
FALSE (Approval with Conditions): Unanimous
FINDING OF FACT:
Upon meeting the above conditions, there is no evidence that the
proposed expansion of Ski Hawksnest will endanger the public health, safety, or
general welfare.
The
Board agreed Conditions to be placed on #3 were as follow:
Member
Copley made a motion the Board approve the Conditional Use Permit based on the
above conditions. Member Hooper seconded
the motion. Five (5) members agreed and
two (2) opposed. The Board of
Adjustment members voted as follow:
FALSE (Approval with Conditions): Five (5) - Hooper, Ehlinger, Copley, Lambert
and St. Louis
TRUE (Denial):
Two (2) - Williams and DeMott
FINDING OF FACT:
There being evidence the proposed use would seriously interfere with views
of adjacent landowners and while at night the area is currently dark, quiet and
peaceful, the increased lighting, parking, traffic and a large activity center would
change the character of the area and interfere with existing uses. There not being a concurring vote of
four-fifths (4/5) of the membership of the Board of Adjustment in favor of the
Conditional Use Permit, the Permit was denied.
The
Board agreed Conditions to be placed on #4 were as follow:
Member
Copley made a motion the Board approve the Conditional Use Permit based on the
above conditions. Member Hooper seconded
the motion. Six (6) members agreed and one
(1) opposed. The Board of Adjustment
members voted as follow:
FALSE (Approval with Conditions): Six (6) – Hooper, Ehlinger, Copley,
Williams, Lambert, and St. Louis
TRUE (Denial): One (1) - DeMott
FINDING OF FACT:
Upon meeting the above conditions, there is no evidence that allowing
the requested expansion of Ski Hawksnest would impose and undue burden on any
public improvements, facilities, utilities, or services available to the
area.
The
Board agreed the Conditions to be placed on #5 were as follow:
Member
Copley made a motion the Board approve the Conditional Use Permit based on the
above conditions. Chairman DeMott seconded
the motion. The members agreed
unanimously.
FALSE (Approval with Conditions): Unanimous
FINDING OF FACT:
Upon meeting the above conditions, the proposed expansion of Ski
Hawksnest will not injure the value of adjourning or abutting property.
The
Board agreed the Conditions to be placed on #6 were as follow:
Member
Copley made a motion the Board approve the Conditional Use Permit based on the
above conditions. Member Hooper seconded
the motion. Five (5) members agreed and
two (2) opposed. The Board of
Adjustment members voted as follow:
FALSE (Approval with Conditions): Five (5) – Hooper, Ehlinger, Copley, Lambert
and St. Louis
TRUE (Denial):
Two (2) – Williams and DeMott
FINDING OF FACT:
"The Town's natural setting is a stage upon which all aspects of
community life revolve and depend. It
is from this point that the work begins for maintaining a sustainable region of
beauty that enhances the quality of life for all residents and visitors. (Page
1, Comprehensive Land Use Plan)
"It is a residential and recreational community
whose citizens and governance are committed to managing its growth with a
primary focus on owners-occupied single-family homes and the preservation and
enhancement of the distinctive and irreplaceable natural beauty of its mountain
setting." (Page 1, Comprehensive Land Use Plan)
"The Town of Seven Devils' mission is to
preserve, protect, and enhance those gifts of Nature that make up the unique
quality of our Town and its environs and ensure that all values inherent in the
Town Vision Statement are realized and reflected through the enactment,
revision, and enforcement of supporting ordinances, appropriate Town action and
other measures as may be necessary." (Page 5, Comprehensive Land Use Plan)
"The Town of Seven Devils is caught in the
middle of this wave, and there is a sense that the qualities of serenity and
escape are threatened. Fortunately,
there is also the belief that a more sophisticated system of development
controls could serve to protect those qualities held dear by Seven Devils
residents." (Page 6, Comprehensive Land Use Plan)
Specifically, in opposition to the statement of the
nature of the Town of Seven Devils, the expansion of that facility with
expansion of the beginning slope, tubing run, parking lot, snack bar, ticket booth, restrooms and lighting will
enhance no one's view of the scenic beauty of the area, will offend those
adjacent to the facility and is inconsistent with and in opposition to the
basic character of the Town of Seven Devils.
There being evidence the proposed use would not be
in general conformity with the Vision Statement, Comprehensive Land Use Plan or
other plan officially adopted by the Town Council and there not being a
concurring vote of four-fifths (4/5) of the membership of the Board of
Adjustment in favor of the Conditional Use Permit, the Permit was denied
Having
failed on (2) two of (6) six criteria Loren Williams made a motion the Seven
Devils Board of Adjustment deny the application request from Ski Hawksnest for
a Conditional Use Permit. Member St.
Louis seconded the motion. The members
agreed unanimously.
Citizen Comments
Board Member's Comments
Member
Copley requested the Zoning Administrator make a recommendation to the Town
Council revising the Zoning Ordinance so the appropriate material for a Preliminary
Conference is available to the Board of Adjustment Members at the time of the
Conference.
Notes were taken by board
members and the town clerk took notes and recorded the proceedings. The Cottoms provided a court reporter to
make a transcript of the meeting.
There
being no other matters to come before the Board at 8:57 pm Member St. Louis made
a motion to adjourn. Member Williams seconded
the motion. The members agreed
unanimously.
_____________________________ _____________________________
Richard DeMott, Chairman Karen E. Daniels, Town Clerk