Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES AUGUST 9, 2018 The Board of Zoning Appeals met on Thursday, August 9, 2018, at 5:15 p.m. in the Council Chambers, 45 E. Broad Street, Cookeville, Tennessee. MEMBERS PRESENT: James Dial, Elwood Ervin, Jane Flatt, Sid Gilbreath, and Nancy Bohannon. STAFF PRESENT: James Mills, Jayne Barns, Ken Young and Jon Ward. OTHERS PRESENT: Sarah Davis, Mae Carr, Charles Carr, Mary Irby, Mary Alice McClellan, Will Roberson, Jessica Crisp, Debi Wofford, Melissa Brown, Jill Otto, John McClellan, Scott Lytal, Mildred Garrett, Gladys Cook, Bobby Farley, Jimmy Carmack, Brayden Loftis, Lynda Loftis, Jeff Webb, Leslie Mundt, Jenifer Fisher, Victoria Bastic, Tenika Burgess and Andy Burgess. James Mills stated that Mr. Woody Welch has requested that Action Item #4 remain on the table. CONSIDER FOR APPROVAL THE AGENDA AS AMENDED. Elwood Ervin made the motion to approve the agenda as amended. Jane Flatt seconded the motion and the motion carried unanimously. APPROVED. CONSIDER FOR APPROVAL THE MINUTES OF MAY 10, 2018. James Dial made the motion to approve the minutes of May 10, 2018. Elwood Ervin seconded the motion and the motion carried unanimously. APPROVED. CONSIDER A REQUEST FOR A ZONING USE VARIANCE TO ALLOW A SOBER LIVING HOME ON THE PROPERTY LOCATED AT 224 GARRETT AVENUE. REQUEST SUBMITTED BY LYNDA LOFTIS ON BEHALF OF SCOTT & JENIFER FISHER. Jon Ward stated that Ms. Lynda Loftis, on behalf of property owners Scott and Jenifer Fisher, submitted a zoning use variance request for a Sober Living Home where occupancy would be determined by the building inspector, health and safety inspector and/or the fire marshal. The subject property is located at 224 Garrett Avenue, further identified as Parcel 026.00 on Tax Map 053A, Group G. The property is zoned RS10, Single Family Residential. An existing home is located on the property. Tax records indicate the home contains approximately 5,594 square feet of living area, and it is the Planning Departments understanding that the property was previously used as a residence for persons with disabilities. The Cookeville Zoning Code, Section 233.9D3.f. Prohibition of Use Variances, states: "Under no circumstance shall the Board of Zoning Appeals grant a variance to allow a use not permissible under the terms of this Zoning Code in the district involved, or any use expressly or by implication prohibited by the terms of this Zoning Code in said BOARD OF ZONING APPEALS 2 AUGUST 9, 2018 district." Further no use variance is necessary as Tennessee Statute permits the proposed use. Public Chapter 879, adopted by the Tennessee General Assembly, took effect July 1, 2018. This chapter includes Sober Living Homes under protections established in Tennessee Code. Specifically, TCA 13-24-102, which provides: "For the purposes of any zoning law in Tennessee, the classification "single family residence" includes any home in which eight (8) or fewer unrelated persons with disabilities reside, and may include three (3) additional persons acting as support staff or guardians, who need not be related to each other or to any of the persons with disabilities residing in the home." The applicant has submitted a variance request to allow occupancy to be determined by the building inspector, health and safety inspector and/or the fire marshal. Tennessee Code permits a sober living home to operate in single family zoning districts provided the sober living home adheres to occupancy limits permitted under TCA 13-24-101 et seq. In the opinion of the Planning Department, the Board of Zoning Appeals has no authority to grant a variance to Tennessee State Statute, which defines a sober living home as a single family residence and would permit the proposed use to operate in single family zoning districts under the occupancy prescribed in Tennessee Code. City legal staff has concurred with this opinion. Staff recommended denial of the request. Lynda Loftis stated she was requesting a zoning use variance is to allow the reasonable occupancy limit to be determined by a building inspector or health and safety inspector for the following reasons: (1) Compliance with the current zoning restrictions causes an unnecessary hardship; (2) Is necessary for reasonable use of the property; (3) Would not alter the essential character of the existing neighborhood; and (4) Least intrusive solution. Lynda Loftis added that she needed at least 13 people to break even. Sid Gilbreath stated that the Board does not have the authority to violate state law. Lynda Loftis stated that the Board did have the authority by the Federal Government thru the Fair Housing Act. Sid Gilbreath replied that the Board has to go by the opinion of the City Attorney that they cannot change the state law. James Mills stated that if Ms. Loftis could comply with the statues limiting the occupancy to a maximum of 8 persons with disabilities plus 3 caregivers then the use would be allowed there. He added that the state law had been changed this year to include sober living homes under the exemptions provided for homes for persons with disabilities. BOARD OF ZONING APPEALS 3 AUGUST 9, 2018 John McClellan, property owner at 625 Carver Street, was concerned about the facility and the effects it would have on the surrounding houses. Mildred Garrett, property owner at 218 McClellan Street, stated that she was a lifelong resident of the area and stated that there was a large family living there now and she was concerned about a sober living home and how it would impact their neighborhood. Jon Ward summarized by stating that the State of Tennessee has already determined a reasonable accommodation of 8 residents. Jane Flatt made the motion to deny the request for a Zoning Use Variance. Elwood Ervin seconded the motion and the motion carried unanimously. DENIED. CONSIDER A REQUEST FOR A VARIANCE FOR THE HEIGHT ALLOWED FOR A WALL FROM 8' TO 20' FOR A TOTAL VARIANCE OF UP TO 12' ON THE PROPERTIES LOCATED AT 135 EAST 1sT STREET AND 68 NORTH DIXIE AVENUE. REQUEST SUBMITTED BY WOODY WELCH AND WILL ROBERSON. THIS ITEM WAS TABLED INDEFINITELY AT THE FEBRUARY 8, 2018 MEETING. PLACING THIS ITEM ON THE AGENDA REQUIRES THAT THE CHAIRPERSON OR TWO (2) MEMBERS REQUEST THAT THE ITEM BE PLACED ON THE AGENDA. MR. WELCH HAS REQUESTED THAT THIS ITEM NOT BE REMOVED FROM THE TABLE AT THIS TIME. ADJOURNMENT: 5:48 P.M. SUBMITTED FOR APPROVAL SUBMITTED FOR RECORDING JAYNE BARNS CPS SID GILBREATH, CHAIRMAN PLANNING ASSISTANT BOARD OF ZONING APPEALS