Town of Seven Devils
Board of Adjustment
Regular Scheduled Meeting
July 23, 2007 – 5:30 p.m.
Call to Order
The meeting was called to
order at 5:30 pm by Chairman Richard DeMott.
Other board members present were David Hooper, Kathy Copley, Kay Lambert,
George Ehlinger, Loren Williams and alternate member Ernie St. Louis. Absent and excused was member
Wilkinson. Also in attendance were
Zoning Administrator Don Fulkerson and Town Attorney Rob Angle. Town Clerk Karen Daniels recorded the
minutes. Also present was Lisa K.
Fraley Appalachian Court Reporting who will provide a transcript for Hawksnest.
Chairman DeMott welcomed all
in attendance, introduced himself and all the Board of Adjustment members to
the audience.
Chairman DeMott stated the
Board of Adjustment is quasi-judicial in nature and that all people speaking,
other than Board members, would need to sign in and be sworn in. He then read the following from the Board of
Adjustment regulations: (These hearings
are open to the public and all interested persons shall be given opportunities
to present evidence and to ask questions of persons who testify. All persons who intend to present evidence
at the public hearing must be sworn in and may be cross examined. The Board may place reasonable and equitable
time limitations on the presentation of evidence and arguments on the cross
examination of witnesses so the application may be heard without undue delay. In the Board of Adjustment cases the burden
of proof is placed upon the applicant.)
Town Attorney Rob Angle
requested that all people wishing to give testimony stand and raise their right
hand. The people wishing to give
testimony were then sworn in.
Chairman DeMott then instructed
all wishing to give testimony state their name and address for the record prior
to giving their testimony.
Approve Old Minutes
Board Member Williams made a
motion to approve the March 26, 2007 minutes.
Board Member Lambert seconded the motion. The members agreed unanimously.
Board Member Williams
requested on page (2) of the July 16, 2007 minutes the second statement: (I feel the Town of Seven Devils needs a
recreation plan as described in our Vision Statement. 90% of the Comprehensive Land Use Plan is devoted to residential
and other issues. In our town seal ¼ of
the area depicts recreational activities golf & skiing) be deleted as this
statement was made at a different meeting.
Board Member Williams made a
motion to approve the July 16, 2007 minutes as amended. Board Member Hooper seconded the
motion. The members agreed unanimously.
Chairman DeMott told the
Board that Ernie St. Louis has requested to make a statement to the Board.
Alternate Member Ernie St.
Louis, 281 Cliffside Lane stated, "I have been a voting resident of Seven
Devils for thirty years. I am a golfer
and I was one of the founders. I was in
the class action against the berm on number eighteen. I am on the board for the Community Action Committee. I was also the first Chairman for the first
Board of Adjustment for the Town of Seven Devils." Mr.
St. Louis elaborated on his business background and personal qualifications and
stated he believes he has always taken into consideration what is best for the
Town of Seven Devils. He further stated
that he does not feel in any way prejudiced or that he would be prejudiced in
any decision making and requested the Board allow him to remain.
Chairman DeMott then told the
audience that Ernie St. Louis is one of the oldest members of the Board of
Adjustment and although he does not always serve on the board, he is one of our
two alternates.
Claude Smith, 770 West King
Street, Boone asked Chairman DeMott if he could respond to this as Attorney for
Ski Hawksnest. Attorney Smith stated,
"I believe the ordinance indicates reasons for someone being recused as
financial interest and someone being unable to render decisions in due
caution. Due to testimony by Mr. St.
Louis at a prior hearing and a television interview I want the records to
indicate we request he be recused. However,
I will go with the recommendation of the Board on this matter."
Chairman DeMott asked the
Board their feelings in this matter.
Member Copley requested the Chairman explain to the Board and the
applicants the necessity of a concurring vote of four-fifths (4/5) of the
membership of the Board of Adjustment. The
Board then read and discussed (Article 12- Conditional Use Permits -12.3.6
Action on the Application of the Zoning Ordinance).
Member Williams made a motion
the Board accepts Alternate Member St. Louis to sit on the Board of Adjustment. Member Ehlinger seconded the motion. Six members approved. Member Copley opposed.
Lenny Cottom asked Chairman
DeMott why Member Wilkinson was removed from the Board. Chairman DeMott stated because Member
Wilkinson participated in a vote with the Tourism Development Authority in
favor of the TDA supporting the ski expansion.
Member Copley asked Chairman
DeMott if Member Wilkinson previously stated at a Town Council meeting that because
of his previous association with Hawksnest, he did not feel it was appropriate
for him to participate in any procedures regarding Hawksnest. Chairman DeMott stated it is his
understanding Member Wilkinson excused himself.
Application for Appeal to the Town of Seven Devils
Board of Adjustment Ski Hawksnest, Inc. / Lenny Cottom
The Zoning Administrator
stated he had previously met with Lenny Cottom regarding his expansion of Ski
Hawksnest requesting to build a parking area, tubing run, and establish a
concession stand, ticket booth and restrooms.
He said, "Upon review of (Table 5.1 – Table of Permitted Uses of
the Zoning Ordinance) I rendered a decision that a Conditional Use Permit would
be required. Mr. Cottom disagreed with the decision and wanted to appeal."
The Board then reviewed
(Table 5.1 – Table of Permitted Uses of the Zoning Ordinance).
The Zoning Administrator was asked why this would be considered a
new use. He said, "This is an
expansion of their existing facility.
They have established the use on the property in another location but Lenny
is requesting to build a new facility with parking lot, snack bar, tubing run,
lighting, and rest rooms." The
Board discussed in depth percent of change, new equipment, the fact that this
expansion will be on undisturbed land and that the property is owned as
separate properties filing a separate income tax form.
Member Lambert made a motion
to uphold the Zoning Administrators decision that this application is a new use
requiring a Conditional Use Permit.
Member Williams seconded the motion.
The members agreed unanimously.
Public Hearing for Conditional Use Permit for Ski
Hawksnest, Inc. / Lenny Cottom
Lenny Cottom presented a chart
to the Board reflecting the changes from his 2006 plan denied by the Board of
Adjustment and his new 2007 plan. He stated
the new plan applies only to the property previously known as the golf course
that was owned by Hanging Rock Golf Club and is presently owned by Ski
Hawksnest. He then explained the
changes in the plans and how the new plan is substantially different than the
previous plan.
Member Copley made a motion
that this application is substantially different than the previously submitted
application. Member Williams seconded
the motion. The members agreed
unanimously.
Lenny Cottom then reviewed
the 8 ½ x 11 map he submitted to the Board of Adjustment explaining the color
coding as follows:
Derrick Goddard of Blue Ridge
Environmental Consultants explained the Cottoms had hired his firm to turn in a
Concept Plan for Water Quality Best Management Practices for the proposed
parking area. He presented an 11 x 17
photograph and 11 x 17 drawing and then gave a basic overview of the plan they
developed which included:
While reviewing the
photograph Mr. Goddard noted Valley Creek is approximately 745 feet from the
proposed project and pointed out a number of natural buffer areas between the
proposed parking lot and Valley Creek.
He stated this is a concept plan and they realize there will be future
grading plans to be submitted.
Member Hooper asked Mr. Goddard
if he is familiar with Section 11.4.2.3 Storm Drainage Facilities of the Zoning
Ordinance. Mr. Goddard said he is and
they will comply with all requirements in the Ordinance. He said he had spoken with the Town Engineer
David Poore on a couple of occasions and sent him this plan for his preliminary
review. Mr. Goddard said Mr. Poore told
me he is comfortable with this concept.
He was then asked and answered numerous questions regarding the Proposed
Parking Area Water Quality Best Management Practices Concept Plan.
Chairman DeMott introduced
Environmental Specialist Adam Williams President of Brushy Fork Environmental
Consulting, Inc. Mr. Williams asked Mr.
Goddard about the existing sub-surface drains they are intending to use. Mr. Goddard stated, "This is a concept
plan. There are two existing
sub-surface drains along the cart path area and when the grading plan is
submitted all the calculations will be in place to assure the capacity is there
to maintain the storm water design based on the Zoning Ordinance Chapter 11." Mr. Williams said, "The plan proposes
to displace over a half acre of property in the parking lot alone and that will
require a Soil Erosion Plan be submitted to the Watauga County Planning and
Inspections Department." Mr. Goddard
said he was aware of that and has spoken with the Town Engineer regarding
Chapter 11 in the Zoning Ordinance. He elaborated
that it is a concept plan and he wants to assure the Board that Ski Hawksnest
and the Cottoms are concerned about water quality. Mr. Williams asked Mr. Goddard if there had been any study on the
existing drainage system on the golf course.
Mr. Goddard said, "There has not been." Mr. Williams asked Mr. Goddard if he had
spoken with Watauga County Planning and Inspections Department and their Soil
Erosion Control Officers concerning the Concept Plan. Mr. Goddard said, "No we have not. We feel we need to get the use approved first." Member Lambert asked Mr. Goddard if his plan
has worked in similar mountain situations.
Mr. Goddard said, "Yes, Low
Impact Development has been implemented in a number of mountain communities in
Watauga, Avery, Ashe, and Wilkes Counties and it has been proven as far as
engineering standards go."
Environmental Specialist Adam
Williams said his company specializes in stream restoration, conservation and
they have been working with the Seven Devils Community Association
Committee. He referenced the conceptual
plan and stated, "You are looking at basically 39,000 sq. ft. of total
impacted area which is approximately eight tenths of an acre disturbed. Valley Creek is a high quality water shed
and a resource to the Town of Seven Devils.
Section 11.4 of the Seven Devils Zoning Ordinance states stormwater
requirements within the Town. However, since
Seven Devils does not have an Erosion and Sediment Control Plan jurisdiction is
kicked to the County level in terms of ground disturbing activities. Watauga County Ordinance Section 17 (Erosion
and Sediment Control Plan) states any ground disturbing activities greater than
half of an acre require an Erosion and Sediment Control Plan. As 39,000 sq. ft. is greater than half an
acre the County needs to be contacted at some point and you may want to have an
approved Erosion and Sediment Control Plan on hand before making decisions. It also mentions impact thresholds between
one half acre to an acre is a subjective case by case decision to be made by
the County on whether or not they require an Erosion and Sediment Control
Plan. However, after reviewing
photographs, it is clear there are existing stormwater issues and I would
assume the County would require one."
Mr. Williams then explained some requirements of the Erosion and Sediment
Control Plan. Attorney Claude Smith stated, "If the Special
Use Permit is approved tonight and the County requires this plan, no ground
disturbance can take place without the Counties approval." Lenny Cottom addressed Mr. Williams and said,
"You have stated there is a lot of stormwater damage to the golf
course. So, if I put in drains and
direct the water so we can catch it properly this would be an improvement." Mr. Williams said, "If you were beefing
up the design standards of the existing golf course, I would say yes this is
better. However adding a 40,000 sq. ft.
parking area, yurts, etc., I could not say it will be better." A lengthy question and answer session
followed regarding the Proposed Water Quality Best Management Practices Concept
Plan.
CITIZEN COMMENTS
Leonard Zeitlin, Mona
Crawford, and Kenny West - Fifth Fairway all stated concerns and objections to
a parking lot in front of their Fifth Fairway homes.
Lenny Cottom explained that
the proposed plan calls for evergreen trees to border the parking lot. He explained that he will landscape and plant
what ever size and density trees and shrubs the Council request for screening
the parking lot.
Bill Ryan, 1456 Skyland Drive
asked Frank Hamm Wilson Attorney for Seven Devils Community Association to
speak with the Board. Mr. Wilson introduced himself and presented
the Board with a list of approximately one hundred thirty (130) members who own
property in Seven Devils and represent the Seven Devils Community
Association. He stated he would like to
make the list part of the record. Lawyer Smith objected to this because these
people can not be cross examined and this is a quasi-judicial hearing. Mr. Wilson stated "I would like to
present a list of my clients, the people that I represent and have it made part
of the record. For the record these
people are all against this proposal and the Board approving this Conditional
Use Permit." Attorney Smith stated,
"I want it in the record that I object to this." Mr. Wilson stated he would like to include
as a matter of part of the record a Feasibility Report on Hawksnest Golf Course
the Town of Seven Devils hired Municipal Engineering to prepare. He said, "The reason he wants this
report as part of the record is because the Board has heard a lot of promises about
what the petitioner and applicant are going to do as far as future maintenance and
to make things better. I will quote
what Mr. Cottom said. "This is
going to be exactly the way we have been doing it in the past." I want you to pay close attention to the
conditions of the storm drainage system and golf course this applicant and the
Cottom family has been in charge of for fifteen (15) years. This report will show you exactly what the
condition of that system is, what maintenance has been done and the history of
the applicant maintaining the drainage system of this golf course. I ask you to consider this Feasibility
Report which was ordered by the Town of Seven Devils from Municipal Engineering
for that purpose. And now they propose
to expand the tubing operation, bring in some trailers, tents and put them down
in front of existing residences, build a new parking lot and give you more
promises. I think you will see by this
report these promises have not been met in the past and on behalf of my clients
I ask that this Conditional Use Permit not be approved."
Leonard Cottom asked Mr.
Wilson if the Engineer talked with any personnel representing the golf course
or ski slope regarding the Feasibility Report.
Mr. Wilson said he did not know.
Mr. Cottom stated "In that report it gives you an answer. He did not talk with us. He did this report without talking to us
about our problems or what we had done in the past to correct these problems." Mr. Wilson said "The Engineer found
1890's pipe that was in the ground, deteriorating, washed out and had not been
maintained or improved in years and years and you have been in charge of it for
fifteen (15) years." Lenny Cottom
asked Mr. Wilson, "Are you testifying that pipe has been in the ground
since the 1890's?" Mr. Wilson read
from page (5) of the Feasibility Report "This pipe is commonly referred to
as paper pipe and is actually comprised of cellulose fibers impregnated with
hot coal tar pitch. It was first
developed in the 1890's and named after the prime manufacturer in Orangeburg,
NY. This type of pipe is obsolete and
has rarely been used in the sizes that were found on the golf course. All of the paper pipe at the golf course has
degraded and needs to be replaced."
Leonard Cottom said, "Before they did their site review they did
not walk around with us to see what we were doing for storm drainage or storm
maintenance and the Feasibility Study did not include my interpretation or my
having an Engineer to counter charge what they have alleged." Chairman DeMott stated, "I think the
thing we want to insure is that we get a better system than we have now. It is hard to go back and play the blame
game but we do have serious problems now and they have gotten worse each
year. The question is how we go forward
from here. That will take responsible
leadership and responsible planning."
Chairman DeMott stated,
"We have not addressed the matter of the Comprehensive Land Use Plan or
the Vision Statement. These have been
discussed many times and I do not know if we will need to spend much time on
them. They are in place and they are the
expectations of the Town. I think what
we have in this Town is not just property someone owns but we have a very rich
legacy. We receive it and are given the
opportunity to pass it on in the best shape we can so others can have pleasure,
health and safety that we have enjoyed."
Chairman DeMott asked if there was anything further on the Comprehensive
Land Use Plan, Vision Statement or other subjects before deliberation. Member Lambert stated she had reviewed the
Zoning Ordinance and could not find anything that discusses permission of a
trailer. The Zoning Administrator
stated the Zoning Ordinance Section 8.2 pertains to Building
Appearance Standards and under Section 8.2.3. Material Requirements Exterior
Walls, exposed metal is prohibited and unpainted metal roofing is
prohibited. The Board discussed whether
temporary or permanent structures would be more compatible with the Comprehensive
Land Use Plan and Vision Statement.
Police Chief Chuck Davis
addressed the Board with concerns of, traffic, staffing, health, safety, legal
concerns and expressed in depth the necessity of planning ahead for additional
personnel. He said traffic would
increase and the location of the entry road is one of the worst areas during
bad weather.
Carol Isquith, 1648 Skyland
Drive stated she is a full time resident of Seven Devils and has been for two
years. She stated she is a professional
realtor and currently serves on the Seven Devils Tourism Development Authority and
has a vested interest in the beautification of this mountain. She stated, "My husband and I are on
the list presented by Attorney Hamm Wilson because we have contributed to the
Save Seven Devils Golf Organization, when it was called such and I currently
represent one of the Cottoms in a professional matter in the purchase of real
estate. I am going to address these
issues in a completely impartial manner and distribute this factual data you
have asked me to present. One of the
things I was asked to talk about is how the closure of the golf course and that
property has specifically impacted the property throughout Seven Devils. The closing of the golf course is probably a
mute point because it doesn't matter if it ever opens again as a golf course. What does matter is the aesthetic use of that
property. I am going on record as
saying have property values depreciated as a result of closing the golf course,
absolutely? Can property values rebound
with the beautification and presentation of something else equally as
beautiful, absolutely? It does not have
to be a golf course." She then
presented the Board with some statistical data from a Golf Business Publication
and some pictures of the golf course.
She said, "Basically through out the United States any golf course
property is of a higher value and holds a higher value in terms of resale. Obviously the beautification and enhancement
of a golf course view is more appealing.
In real estate we have a saying Highest and Best Use. Keeping that in mind I beg of you what ever
goes onto that property may it be pleasing to the eye, pleasing to the senses
and uplifting to this mountain and community.
This clearly affects every one of us.
It does not matter whether you have a view of the golf course or not. What does matter is as properties go down,
appraisals, evaluations, tax income, and the desirability of this community
goes down. So, anything we can do as a
unit together with the Cottoms to raise the current perception and the
perceived value of this mountain is critical." Lenny Cottom asked Carol if in her study of property values she
looked up values of ski properties around ski resorts. Carol said, "I did not but that is a
very good point. In Aspen, Vail and all
other ski resorts, property values have gone up. Let me address this as a year round resident. Looking at your skiing at night with the
lights on is gorgeous and looking at the mountain in the winter time with the
snow is gorgeous. Are we blessed with
that view, absolutely? Are we unblessed
because you took our golf course away, absolutely? Speaking as a homeowner we have a delicate balance." Carol referred to the photographs of the
golf course she had presented to the Board showing the golf course when it was
maintained and in it's present state.
Carol stated, "On one hand we have this gorgeous view in the winter
and in the summer we have this crummy view.
The winter views are spectacular and we need to do everything we can to
elevate and enhance the summer views."
Lenny Cottom asked Carol if doing a new tubing area, a new beginner area
and doing it properly would increase the value of property. Carol said, "If it is done properly but
I underscore Highest and Best Use. In
the real estate community through out Avery and Watauga Counties, Seven Devils
does not have a very good reputation because perception is Seven Devils closed
the golf course. We all know that is
not true and with the media here I want to make sure that is very clear. The golf course is personally owned and the
owners closed it. All I am saying is what
ever goes on that property needs to enhance and uplift this community." Lenny Cottom asked Carol if upgrading some
of the facilities they have and making the beginning ski area larger and the
tubing area more accessible would be perceived as a plus. Carol said, "If you turn it into a
Little Aspen God Bless You."
Member Hooper asked Carol where she stands on the proposal and if they
landscape and plant trees to screen, would a parking lot in adversely affect
the value of the surrounding properties?
Carol said, "I don't think there is a quick yes or no answer. What I am saying is from a realtors
perspective anything the Cottoms do to beautify that space will uplift and
increase the value. I do have concerns
about temporary buildings. I did not
realize that the Board did not want permanent structures. I personally would be in favor of a good
looking permanent structure as opposed to flimsy, dangerous temporary
buildings. I do not want to see
temporary buildings or bathrooms with residue that will be left over in the
summer time. I had rather see something
that can be looked at all year around that will enhance their property values
and uplift their property."
Security and traffic control were
discussed. Member Hooper asked Lenny if
he would be willing to help pay for increased security. Lenny stated he absolutely would.
Lenny Cottom then explained
his plan of expanding the beginning slope, new tubing run, building a parking
area, and establishing a concession stand, ticket booth and restrooms and the
necessity of this expansion to the Board.
A lengthy discussion followed
regarding demands on the Town water system, traffic control, safety of yurts,
views and property values. Comments and
discussion by citizens, board members, petitioners and others followed.
The Board reviewed the list
of concerns they had regarding the Conditional Use Permit. Items of concern were as follow:
Attorney Comments
Attorney
Claude Smith told the Board, "Lenny has made a thorough and detailed
presentation. Better parking will make
it a better, safer resort. I know the
Town will have a watchful eye.
Conditions are fine and I expect the five questions will be answered
yes.
The Zoning Administrator then
read from the Zoning Ordinance Article 12.3.6:
After completion of the public hearing, the Board of Adjustment shall
take action on the application within thirty-five (35) calendar days. The findings by the Board of Adjustment
shall be based on reliable evidence presented at the public hearing.
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.
The Board agreed they were
unable to make a determination of facts at this time and to recess.
RECESS
Board Member Copley made a
motion that the Board of Adjustment recess the public hearing at 9:30 pm and
reconvene at 5:30 pm on Monday, August 6th, 2007. She further moved, "As members we have
authorization to review evidence presented in testimony but we may not
deliberate, discuss among ourselves or seek additional information regarding
this hearing." Member Williams seconded
the motion. The members agreed
unanimously.
_____________________________ _____________________________
Richard DeMott, Chairman Karen
E. Daniels, Town Clerk