Board of Zoning Appeals - Regular Meeting

Or is it right stand to the flag of the United States of America and to the republic for which it stands. One nation under God indivisible with liberty and justice for all. Thank you everybody. Next item of business and we have a forum tonight. Have three members, three out of the five here. Uh the next item of business is has everybody had a chance to review the minutes from my last meeting which was in June 18th. Has everybody had a chance to review that? Yes. Any changes or anything like that? If not, I'd entertain a motion to approve as presented. So move.

All those in favor say I. Wait, do I have a second? Excuse me. I have a second. All those in favor say I. I. Thank you very much. Uh the next item of business, we have one case tonight before us is a request seeking a variance from section 4.02G.2A UDL to allow a fence to be located within a drainage and utility ement located at 11:22 Stubble run lot 13 in.

Yes, this is a variance of development standards to allow a fence to be located within the drainage utilities. have if you recall a few months back we had another similar request um but Mr. Callahan is here in the audience and I would like for him to come up at this time and let him explain his reasoning for this request. U if I can back up just a moment. Anybody plans on speaking tonight? Please be sworn in by random police. Bruce you the testimony you give tonight will be the whole truth. I'll help you out. Y thank you.

Thank you. Now Mr. I appreciate it. Thank you. [Music] Mr. Callahan, can you please just state your name and your address for the record? I'm Lucas Callahan. Uh, my address is 1122 Stouble.

All right. So I'm here to request a variance to install 4 and a half foot broad style black aluminum fence across the drain ement on my property at the perated use and crossing places. This request stems from a unique situation involving child safety changing regulations and topographical challenges of my soy background. My family entered a purchase agreement to build on this particular lot in 2023. Have

some additional to follow along with All right. So on top of this purchase agreement with the date highlighted when we signed to build on this slot. At the time of the purchase agreement, the current UDO had not been enacted or in effect. We closed on our home in June 2024. new regulations have taken effect that significantly reduced our principal area leaving only a steeply slipped backyard and um with 10 to 16% grade um that it was suitable for fencing under the new so I just want to jump straight to the findings and facts we start going through those items uh start with item one the approval will not be injurious to public health safety morals and general welfare of the community because there's precedence of a properly permitted fence across the same drainage ement in the same style. This fence had a permit in February 2024, so prior to the UDO being effective. And that'll be the second, third, and fourth page in that packet I just handed you. So, you'll see an email to Nathan for getting a copy of the permit. You'll see their plot plan as well as the style they have and their fence crosses these two spots similar to what I'm recording. Uh, additionally on item one, uh, defense I'm requesting is non-solid per definition and this is to be drainage and per regulations, I'd be willing to remove, repair my own cost if the town needed access to these. Now, trying to determine how not to be injured public health improve that seemed to be difficult. Uh, however,

doing some research, uh, I was able to see that how to test drain ements. You really can't test them. you can visually inspect and see if there's erosion or anything blocking them. And you can see when rain falls, does the water drain? And so working through that, uh, you'll see after the fence permit, there's a paper that has a bunch of numbers, charts. You'll see rainfall for April 2025, which is the highest we've had in a decade in a single month. And most of that rainfall happened over four days. 74% of rainfall happened over four days. And so I use that as my baseline. Uh I talk to my neighbors to discuss if uh they have any drainage issues during that and if they'd be willing to sign a paper that says, "Hey, we have no drainage of water or we had no pooling. There were no drainage issues. Everything went as we expected drainage to perform." And this is with our friends existing in place. So, we have signed affidavit from both neighbors on each side. Basically says where they live, that there's no pooling of water, there's been no flooding over the year the fence has been in existence, when they moved in, and we can go back and read that detail if you guys like. Uh moving on to the second item, the the use and value in the area adjacent to the property included in the variance will not be affected in a substantially diverse manner because this would be consistent with the fence and precedent in the neighborhood. The fence is of high quality like aluminum or iron style. The fence is not solid. Again, other fences in the same style exist in the neighborhood, not only on my side of the neighborhood, but on the other side of the neighborhood. This fence is an HOA approved style, meets HOA standards. The fence is offset from the property line by one foot. as not to or as to prevent any future disputes if there was any to arise within the unit and again it's not a drainage in the

time we've been there despite doing and then third the strict application of the terms of zoning ordinance will constitute unnecessary hardship if applied to the property for which the variance is sought. This plot was selected and under contract with the purchase agreement in 2023 for a semi-custom home build by my my family, my wife, myself, and my kids with the intent to fence the whole yard. At the time of this purchase agreement to build on this lot, EVO was not adopted or in effect. The entire block could be fenced when we entered the contract, but when we closed, the guidance had changed. Uh, this plot was selected from a wide variety of available plots uh for the plot specifics itself. Knowing that at the time we could have fenced the whole property and the area that my children could safely play is on the other side of the eastment. This heavily influenced our decision as well as having the trees in the back was a significant uh influence in picking this specific plot from the available lots. So the UV went to effect building process and under the new rules and regulations our fensible area has shown 55%. I believe I said 63 in the application but there was some scaling wrong when it measured. we came up with 55%. So that should be the last page of the handout I believe is a block plan with highlighted metrics showing the sloped area showing unfensible yard and showing where I could put fence. So the majority of our remaining fenced grade so almost unusable for my children to play on safely and contained. And the only approximately level or low slope area in the backyard suitable for a three and a half year old, 2-year-old, and fourmonth-old to play on is on the other side of the ement. Uh given that the other side of the easement would be outside the fence per UO, uh we have some child safety risk uh

that we've experienced. On movement day, I was attacked by my shorts. So, that was really inspiring of getting the fence up as fast as possible. Uh, we had a 25 pound snapping turtle on the outside of my fence. My 2-year-old was trying to pet. Thankfully, it was snapping at the fence and not my 2-year-old's hands. And we have coyotes we see in the field behind. So, we have natural hazards that are risk to children that are not contained and separated. Then for some additional context, we have the turtle and a very white snow shovel right outside the fence. And then we have a picture of my shorts from moving day as well as some pictures of my yard as it stands. So

you'll see some small trampolines in the place that are located on the flat part of my yard. There is no other place to budget. So I believe this variance request represents a reasonable accommodation for a family that made a significant investment decision based on previous regulations that changed mid build. Defense serves essential safety functions while meeting technical requirements for during each floor. As far as we can tell, and with established neighborhood precedents and proven performance, I respect the request for this variance. I'm prepared to answer any questions at this time.

I have a couple questions. Yeah. So during the process of your building, had you already closed on the property? No. be so you did not close on the property before the before the ordinance was changed. Correct. And were you aware of it before you closed? Were you aware of the ordinance? Yes. Uh no, I was not aware of the ordinance and I believe the vote for the ordinance was in February as well. So it changed before you closed, but you weren't aware of it until after you put your fence. I think that I think that's safe to say. Yeah. Um,

and I will add given how the how these builders structure their contracts, you're not going to close until your house is done and you sign up to customize and put your house together how you want and then you're you close after, right? So, we're locked into a contract under Well, it seems like if the rules got changed that we may may have let you out of the contract potentially. Um, the other thing when I'm looking at your your drawing here and I think you've done a really nice job putting together all the information. Thank you. Um, this green what I'm looking at in the green where your patio area is? Yes.

Um Um, what is that? Is that part of your yard? Like outside of the patio and around the side of the house, is that also part of your yard? So, right now the fence includes that little bit of sideyard. Uhhuh. Uh, and there's just an air conditioner over there. But I'm looking at like right behind your house. It looks like you have um your patio is 10 by 14, right? Yep. So you've got 10 ft coming out behind beyond your house plus another what maybe eight or so within this green line that I see drawing. That's part of your yard and then it starts to slope down.

Or no, that green part is sloped. and everything. So, your patio just kind of patio sits up and then the floor starts. Yep. Okay. Including the side area. The the sideyard is remotely level, but there's an air conditioner, so it's kind of tight space there. Okay. Um, so also like with your fence, like can your child still stick her arm out of that fence if you get ice? Uh, in theory. Just kind of curious about that. like you're it's keeping that it's keeping the turtle from coming in the yard. Got you. So, can I can I ask a question at the staff? Sure.

So, I'm just thinking, you know, this is the second fence issue that's come up in that neighborhood and and according to your statement, there are several more that are likely to come up. So, I guess my question is when you changed this, I assume there was a good reason to change it, right? Yeah. and and because and now because it's creating a hardship for the people who live in that neighborhood. But the reason to have it still hasn't changed.

That's correct. Uh the reason to have it was to prevent any kind of obstruction in a drainage swale. And having a fence in a drainage easement where is typically where the drainage swell is located could prohibit water flow depending on what's within that within that soil. So, it doesn't seem like it is so far,

but I'm just wondering like what's the point of making this change if several more people are going to be coming asking to put in fences and if we're gonna if we're going to give everybody a variance, why like why not just change the rule? Well, I I guess that's my my conflict that we stay the only and and the reason that I put in the letter that there would be others is because other lots in this subdivision along this side of the property on the west side are have the same issues. So, it's it's tied more to this subdivision than it is throughout the town of Anville.

No, I I agree. Oh, so it's a general waterway, not specific to this one. Yes. not specific. Okay. Right. Not this lot, but this like waterway or this drainage area. That's what like when you change that coordinates, it pertains to all drainage areas, not just this particular drain.

Okay. Because I mean I just feel like we told those other people, but now we say yes and then more people come and say yes, kind of like, well, do you still have a problem? Do you anticipate having a problem? Do you think you don't want the problem? I guess that's my kind of like I may not fully sympathetic to your problem, but I just don't know. Like consistency.

Yeah. Like Yeah. Is everybody going to come back and everybody's going to have the same story? And but if you think it you think it presents a potential problem, do you want to keep saying yes? That's my that's my part. And I understand that and that was it was a very difficult um it was a very difficult petition and letter to write because of that. Um I think their circumstances are somewhat different from the previous one that we had. Um they literally have no yard to fence in. Whether that's a hardship or not is up to the board uh to determine that. But um the previous application they had a fairly decent side yard to where they could stay out of that ement

and they had a pipe that ran through the Yes, they did. This one doesn't look like there's a pipe that it's just a drain. Yeah, I see a little difference in a broad iron style fence compared to someone privacy fence up where that would obviously keep the water flow unless there's debris. Yeah. Then it's going to catch and catch. So, what houses are we talking about? Um, I know that there's probably what, two or three more that have fences. Yes. Currently,

um, I don't know if anybody else will put a fence in their yard, but I know it involves probably about 12 lots. And the people that already have fences like you are going to have to come and get permission to keep their fence. We do have one person that's permitted that I included in that packet. They submitted before the So, they're across these, the same fence. And I will add I think the neighborhood was flooded with this easement prior to the UDO. So the builder was selling on you can fence your whole yard and that was a true statement right for x amount of time and then it changed and the builder's saw never changed. So were all the lots sold before the the thing? Not not all the lots.

So did they continue to sell lots after that indicating that people could miss their whole yard? I don't know. That's my That's my understanding is that they were they were told they didn't even have to get a fence permit. Right. So, is there any others out there right now that's not that force after code enforcement goes out there? I have an application on my desk right now for another variance. Um, is it existing already? I mean, I don't recall if the fence is there. Um, I believe it is. Um, I think it's your neighbor, Mr. Callahan. um adjacent to you. Yes. But I believe it's a privacy lens. Is that correct?

Okay.

So, um I haven't processed that application because I didn't I told them to hold off and see what the outcome of tonight's meeting is. So, one more question. on your on our approval the statement of approval when we say we approve or deny based on it meeting the requirements there's three there's three requirements and maybe I should have asked this before sometime but should any petition require are we required is it required to meet all three of these requirements or just one or two of them for us to prove that I don't know how to say it obviously present a problem for you a practical difficulty that might be to me that is a big question but but what about is it injurious to the public health safety morals I mean you created this ordinance because you say that it is so is it or isn't it? I guess it seems like it's not because it didn't restrict water flow, but I don't know. I'm not the one I don't know about bottom line. I believe

that's what the bottom that's what I was and so it's right.

So I will add one more thing for you guys whether this is relevant or not. I have. So, I did apply for a permit when I put my fence up in the world ended up being attacked for a dog by a dog and got materials ordered. Same day I applied. And then I received a denial the next day. I have to make the decision whether to follow the president and HOA and build her saying I can build a fence and protect my children or follow the parent. So I talked to somebody that is knowledgeable and they said appeal when the time comes. So my game uh I think it's a first [Music] At the time of my application, the fencing number was out of date as well of note. So when I applied and bought all my materials, the website told me everything was good and then things obviously changed. just adding additional information for you guys.

But you but you built your fence after your permit was denied. Yes, but that was with HOA saying is okay. Builder saying I don't need to permit it. So, but why did you apply for the permit if the HOA told you you didn't have to? Because I built a fence on my previous home and that was a process was for a permit and I didn't know if new developments are part of that. So, you I have another question. If you if you wouldn't have been attacked by the dog on on the move in day and and you wouldn't have encountered a snapping turtle, would you would you fly on the fence anyway? 100%. I have three young kids that are going to run wild if I don't.

Right. Um, so yeah, I I basically had to make a decision. Put up the fence or turn around and try to figure it out while risking my children safety as one day of experience at the property already led to a bad a bad encounter. In addition, my previous homes permit took 12 days to be approved, and I felt like I did not have 12 days to try and figure this situation out. I have a couple of questions. Okay. So, number one, I know you did a study on the rain for this year, earlier this year.

The rain is different every year. You have a 100 year storm event one year and the next year not the year after that not. Um I can't say whether we have had this year or not. I have to go back and look. Yep. Um there's a tree preservation easement behind there. So, I'm guessing there's trees back behind your property. Leaves start falling in the fall time and the winter. You're going to have all of that washing down during any kind of rain event, which could potentially clog up any drain, any fences, even if it's the metal fence that that you have.

Um, nobody can say that you will keep that cleaned off to keep everybody else's property from flooding, right? um or your neighbors from keeping it clean on their property. Correct. Okay. Um so that's one issue there. Would you be willing to cross that drainage swell raise your your fence up maybe six inches off the ground just so that it there's enough clearance crossing that swell so the water could flow underneath it?

I'd be willing to raise some. Would you also be willing to sign some kind of whole harmless agreement with the town and have it recorded at the county recorder's office to be um cross-cheed with your deed so that if in the event you ever sell your property and the new homeowner comes in when the title search is done they're going to pull that and they're going to see that this is on there. So if there's any kind of issues with it then they're going to have to take it down in the event that the town has to come out to maintain as well. Yep. Absolutely. Good enough. And debris clean up governed separately from the Is that right? I'm sorry. Debris clean up and waterways govern under 17 2024 ordinance. The drainage ordinance.

Yeah, probably. Uh two weeks after July early July 2024. Yes. So, no issues so far, but obviously there could be 100 pointed out and this that you presented as your denial. Is that correct? The email.

No, that's just me going back and forth with Barry asking why the disclaimer was up to date. thought of mine is the fact that if the other houses want to build access it doesn't show it is drainage is it Okay,

it's defined as transient utility I believe in the UDO, but for everything I've been told from the builder, there's no utility. The builder hasn't told me so far. If we can say if it's a drainage, we're good. I'm happy with that. If there's any works that has to be done in that ement, the fence will come out and it will be up to them to replace the fence. That's just the way it is. That was the only thing. You mentioned that you'd be willing to raise that fence up, you know, six inches. Would that be part of the purpose of protection?

Yes. But the turtles then would have to they have a much tougher time getting into my yard in that case than they would if there was no fence. So essentially my children either play in an area with no fence because that's the only area that they can put in their trample or they will play inside the fence if it goes all the way up with no fence. There's risk with a fence a stray neighborhood dog. So less turtle horn the bigger animals that will 100% up

thank you very much. Um I I believe this development would be unique in the way that it was plotted with a drain ement in the middle of all these backyards. So just this side of the development was plotted with danger in the middle prior to the being active or even voted on. And so I think I'm not here to make a case for everybody else, but I think there's there's a strong case for this specific side of this development being fairly unique that it started prior to ED and media changed as we were filling it. But yeah, that's my last comment. I'm not here to defend anybody else.

Thank you very much.

Thank you. This time I'll open it public here. I'm kind of back and forth on this because of this purchase agreement. and sign the date. In fact, that changed after that. But then setting a president But okay, if if there were to become a problem with the drainage in the future and you can remove your fence and like take care of the problem, but what if What if it comes up that in the future there is a problem in the fence is removed and needs to stay? I mean, is that a possibility or is it just a matter of removing the fence, taking care of the problem, and putting it putting the fence back in?

Yeah. Like I don't I see issues with with all of the above because then it becomes an enforcement issue for the town. Um, we're not going to know when someone if their fence is blocking drainage with debris or whatever unless they call us and say, "Hey, this drainage swell's not working," which happens a lot. Um, but, you know, to me it just it can become an enforcement issue as far as I'm concerned. And if we would approve or get a motion to approve it, it would follow up with extra home. So,

you can have that that holdless or that restricted uh it's a restriction deed restriction basically that gets applied to that property. That way when someone else purchases the property, they know that there's a restriction on it. Oh, the restriction. What would that restriction be at that point? that if the fence has to be removed to cut their own expense, right? Well, no. I mean, that's just a given, but Tiffany was talking about putting a restriction on there saying we know this is in an easement. Um, basically that is at risk, right?

How does it affect other people in the neighborhood though? Like what if they start having problems people? What if everybody puts a fence up and then and then suddenly everybody starts having it can and that's why it's an issue. That's why it became an issue and that's why we changed the ordinance because it can become an issue if his neighbor doesn't have a fence and downstream it it's you know or backing people up but there's water flooding on his neighbor's property then that's that's where there's issue. We don't have the development. I'd have to go.

And then my other issue is filing for a permit and being denied and still doing it anyway. That's my big Yeah. No, I understand that. I understand that. I totally get that. I was hesitant to share that transparency. Well, I appreciate your honesty. Is it possible is it possible to like build a like a retaining wall and level out some of your land so that you can have your trampoline and whatnot? I mean, is is that a possibility? I I realize that might be complic I've built retaining walls and it's not fun and it's not cheap, but

is it possible? Is it possible? Um, I'm not because it's the slope of your yard. Like we can't stand back there back and forth. We went sliding down for that. It's enough to do that. So, you go sliding down the hill into your new fence.

Yeah. Our sliding hill will be covered up now. That's the way we go. That'd be a civil matter between them and and the developer. We would have the homeowners association and I mean they can always go back on them and share it. I mean, he was told no to begin with.

Additionally, I was told it brought me. You can always fence serve it purpose. my face once, twice, twice a day. So even if I hadn't Did you Did you do anything about that dog that reported you? I mean, talk to the neighbors. Yeah, talk to the neighbors. Yeah, I didn't break my skin.

Is it still a problem in your neighborhood? Uh, it's been out two other times, but I just caught it on my door while running. You can always reach out to animal control. Yep. I mean, if it's another if it's a problem again, we will reach out. Do you frequently see uh given our proximity or right now we have growth kind of high so we can't see into the field behind our house? But when we can see into the field behind our house, I don't know if we have a shot. Yeah. There's a there is a tree line along the entire western edge on the other side and then field

to the north to the north. So yeah, we have lots of animals running. Yeah, there's a there was a big burn pile that people are probably big pile that you can see. There's a bunch of cat. We see six six yards right there in your same situation. Is that uh they don't all have fences, but there's about fences. They may.

Yeah, comments.

Yes. I move that we approve the variance sought by Wis Callahan petitioner in BCA 2025-2250 to allow a fence to be located within a drainage and utility in the um UDO section 4.02.2.8 in the PUB zoning district. This petition has satisfy the requirements for variances under state law for the following reasons. The approval will not be injurious to the public health, safety, moral and general welfare of the community for the reasons stated in the petitioner's proposed findings. In fact, the and the use and value of the area adjacent to the property improvements in the variance will not be affected in substantially adverse manner. Further reasons stated in the petitioner's proposed findings of fact and the strict application of the terms of this zoning ordinance will result in practical difficulties in the use of the property for the reasons stated in a petitioner proposed findings of fact that um I move that may to to I don't know I don't even know how to say the conditions that that's staff may deem necessary going forward like for what Tiffany was talking about about restriction. You should probably state that in your motion.

Whatever the town has available that that the that the homeowner won't hold harmless anything that would happen in the future and also that the fence will need to be removed at the owner's expense which should any problems arise in the future. Does that satisfy all the way through? It's a motion that I would have that reported to be tied to the for any future property owner

and be recorded and tied to the for future property owners. We'll listen to the tape. All right. Make sure we got We have a motion. Do we have a second?

Yes. Hi. I myself may sorry is there for the decision of the body that the petition is denied 22 being denied and the petition is denied based upon the motive 22. Thank you very much. Appreciate your put together. Okay, that's the only thing for us or do we have a meeting next time? We um

No, I don't believe so. Unless the petition that I have on my desk decides to go ahead and and file and it's basically the same thing. Same thing. Yes. Anything else? Anything else for us? This time I entertain a motion to adjourn tonight's meeting. Second. Second. All those in favor say I. I.