Board of Zoning Appeals - Regular Meeting

Uh if everybody would please uh silence any electronic devices that they have be appreciated. Um welcome to the Hilton Island Board of Zoning Appeals. Uh today we have two variances that will be hearing. Um the procedure will be that the town makes its presentation first, the applicant will make its presentation second. Both the town and the applicant will have 20 minutes uh to present their views. Uh there'll be rebuttal afterwards uh at least for the town and perhaps more depending on what comes up and then after the town and the applicant speak there'll be an opportunity for public comment on any variance requested. Uh that'll be three minutes for public comment and then we'll have our discussion on the board and hopefully make a decision. Um, with that said, uh, any changes to the agenda?

Move acceptance. Move acceptance. Oh, thank you. Is, uh, Mr. Christian, move acceptance. Is there a second? Second. Miss Fee. Uh, seconded. Uh, please all in favor signify by raising your hand and saying I. I. I. Unanimously approved. Uh, next. Uh any comments to the minutes from our meeting of December 22nd, 2025? No. Okay. Hearing none. If I could have a motion to approve the minutes. Make a motion. Okay. M Mr. Green. Second. Okay. Mr. Sackheim. All in favor, please signify by saying I raising your hand. I I unanimously approved.

Mr. Chairman, I just abstain since I was not present at the previous meeting.

So, six approvals, one obstension. Thank you. You're absolutely right. We have no unfinished business. So, our first item of new business is public hearing uh variance 0000252 of 2026. Request from John Watts representing on behalf of Carol Blloazi. Sorry about my pronunciation. Owner of 12 Heath Drive. Also identified is Buick County Tax Map Parcel R52016 00A 0132 000000 for a variance from the LMO section 166104 F2A general requirements to remove a specimen tree that is located on a single family lot. Mr. Her.

Good afternoon chairman and board members. For the record, my name is Brian Eber. I'm principal planner here at the town. Before the board this afternoon is a request from John Watts um concerning 12 Heath Lane for variance from LMO 166104F2.A A and it's a general requirement to remove a general requirements to remove a specimen tree that's located on a single family lot. This is a fairly recent LMO change within the last year. I thought it would be kind of important to state that staff doesn't have a specific review criteria for this removal. The only relief from a hardship is through the BCA. And that's why you will probably notice there's no staff um or official recommendation to either approve or deny. We instead have recommended you that the board make the decision um that's most fair and equitable to all parties involved because of this lack of criteria. If it had been an encroachment into a setback, we definitely would bring forth because of the criteria that set forth in Elmo, a recommendation of denial or approval. So, I just thought I'd start with that one real quick for you. The subject property is is developed single family residential lot in a PD1 district, Palmetto Dunes. Um, the subject parcel borders single family residence mainly. There is a golf course behind it. Um, it uses the north and south. On the west side, there's an adjacent golf course to the east.

Are you familiar with this the area? Thank you. I tried to get someone a pass. I don't know if they ever got a pass, but sorry. For your convenience, the zoning map is provided for their orientation and zoning. It's in this big yellow area for palmetto dunes. Specimen trees cannot be removed unless specific conditions are met. If preserving a specimen tree creates an unnecessary hardship, the applicant may seek a variance in accordance with LMO section 162103S. After obtaining any required approvals from applicable state or federal agencies, the tree in question is shown here with a red circle and then closer in there's a little X black M and describing the location to the house. As you can see from the photos, as the tree has grown, the house is not. The tree has grown into um the structure as it were showing the existing conditions as provided in the variance criteria. A variance may be granted by the board if it concludes that the strict enforcement of any appropriate dimensional development, design or performance standards set forth in the ordinance would result in unnecessary hardship. A variance may be granted in an individual case of unnecessary hardship if the board of zoning appeals determines the ex and expresses in writing all of the following findings. Those are the four findings we'll go over in great detail today. The first is

are there extraordinary and exceptional conditions pertaining to the particular piece of property? Did the conditions uh generally not apply to other properties in the vicinity? Because of these conditions, the application of the ordinance would to the particular piece of property would unreasonably restrict the utilization of the property. And finally, the authorization of the variance will not be of substantial detriment to the adjacent properties or the public good and the character of the zoning district. So the findings of facts are the the subject property contains a specimen tree that the applicant stated was originally measured at approximately 24 in in diameter and has since grown to approximately 36 in in diameter since the house was built. As the tree has matured, it's begun to cause physical damage to portions of its the home and to the base of the tree. The tree is approximately 3 in from the first floor sophet and 8 in from the second floor sophet which is an atypical and severe condition not commonly found in residential settings. A significant portion of the tree canopy overhangs the residence and continues to grow towards the structure. The tree possesses a direct threat to the structural integrity of the residence as documented by the applicant and the supporting materials. So the first question again concerns just the property. The subject parcel is approximately 0.27 acres in size and generally consistent in size with its adjacent parcels. However, the location

and growth pattern of the subject tree is unique to this property. These conditions do not generally apply to other properties in the vicinity is the question we're asked. The subject tree is in close proximity to the structure significantly closer than what is typically observed in a residential site within the surrounding area. The tree has physically encroached into the building envelope, including overhangs and and contacting portions of the residence, which is a typical condition not family commonly found on neighboring properties. The risk associated with the tree has been professionally evaluated and classified as high with an imminent likelihood of failure, indicating a level of hazard that exceeds typical tree related conditions in the vicinity. A certified arborist has conducted an on-site in inspection and prepared a former arburous report documenting the conditions of the trees and recommending removal of the tree due to safety concerns. Criteria number three. Because of these crit conditions, the application of the ordinance to the particular piece of property would effectively prohibit or unreasonably restrict utilization of the property. The tree has already caused damage to portions of the structure and continued growth will further exasperate these impacts. The canopy and trunk of the tree continued to encroach upon the building envelope, limiting the property's owner's ability to perform routine maintenance and necessary necessary repairs to the home.

Criteria number four, the authorization of the variance will not not be of substantial detriment to adjacent properties or the public good and the character of the zoning district where the properties located will not be harmed by granting of this variance. The proposed variance is limited in scope to the removal of a single 36-in diameter specimen tree live oak and does not involve broader site alterations or ch changes to the overall development pattern of the property. The removal of the subject tree will not materially alter the established criteria of the neighborhood which is defined by a mix of mature trees, residential structures and maintain landscaping. The tree removal is supported by a is also supported by a certified arborist has received the Palmetto Dunes property owners association approval and architectural review board as well. Based upon the above finding of fact, it is staff's recommendation that the board consider the findings of facts and circumstances of this variance request and make a decision that is that it believed to be the most fair and honest equitable decision for all parties involved in this matter. Thank you. I'm here to answer any questions you may have.

Questions, Mr. Eert. Yes. If they took down the tree, would they be subject to mitigation? Not the town's. It's a good question. This is not the town's mitigation in Palmetto Dunes. They do have a mitigation requirement to plant back. They would have to meet the pomeadun's mitigation requirements which runs very similar to the town's requirements based on the town's requirement for mitigation. Yeah. And on a 36 in what is usually is that is it four in

four four trees. Four trees or they could do two larger trees. Four or four live oaks. Okay. Or they could do two live oaks, doubling the size of the the plantback mitigation tree. Thank you. Any other questions? Mr. Yuber. Yeah, Brian. From the the summary from the staff, it looks like you've drawn a conclusion that it meets all of the criteria for a variance from your findings of fact. Would I be misreading if uh I made that statement?

I I think based upon that evaluation that was where Melissa had gotten to with her evaluation. Second question has this is in Palmetto Dunes approve approve this. Yes. Okay. So Palmetto Dunes is HOA is okay with the and yes sir I I it wasn't clear Miss McI's question. Was there mitigation requirements from Pomemetto Dunes and their internal controls? Yeah, that's a that's a good question. Yes, they do have their own internal mitigation requirements for tree removals and they would be applying those and they're very similar to the town of Hilton Head Island. Okay. So, it's not exact. We wouldn't be double dipping.

I The town isn't going to require mitigation and news is going to be requiring mitigation because it's a PUD. We defer to the PDD behind the gates for their their mitigation strategy and the same would be applied to C. The town will defer to their judgment. Yeah. Okay. In this particular criteria, I'm good so far, Mr. Chairman. Thank you.

Thank you. Other questions for Mr. Iver I have just I guess one um I I heard your explanation at the beginning of your presentation. Um, and I I guess what what I'm asking is is so is this deviation from the uh LMO and not providing a recommendation limited to specimen tree variance requests or might it be employed in the future?

That's that's a good question. I think because of the way the wording is in the LMO for this particular exemption that was removed without criteria, that's why we landed where we did. If if it was a strict zony setback angle plane, we would still be coming to you with a recommend denial or recommend approval. So, it's that specific language that we're going to work on and improve uh going forwards because it was limited and did not have a criteria set forth.

So, then I mean I guess then just to paraphrase and correct me if I'm doing it wrong, but so this is in essence a one-off um in terms of not providing a recommendation as required by the LMO. Until the town council would were to change the code, this would apply to another tree that would come before the board until such time a change was made. That's my understanding. Well, but I mean on a variance request in general. No, in general. In general, for ones where we do have a criteria to base it on, we will provide you with a recommendation. Staff will for approval or denial based upon the findings of facts. And the

M Mr. Chairman, I I I I had this very conversation and concern that you're raising with Brian prior to the meeting. Got it. And and I I I think the LMO committee task force needs to take a look at this to tighten up the language so staff feels comfortable making a a recommendation. doesn't mean that we have to follow it, but I I've always valued their recommendations and I don't want them to be hamstrung by some obscure language that doesn't give them the proper guidance. So, you know, I'm on that task force and I I will be bringing this up at the appropriate time that that needs to be tightened up. I would agree, especially since the LMO specifically requires it.

Amen. So, I have a followup uh related to Mr. Christian's question on the Palmetto Dunes PUD versus the town's requirement for mitigation. So, it's not like we're double dipping that we want Palmetto Dunes trees plus towns trees, but I would think that the town supersedes a PUB actually the town has been always deferred with to those matters to the PUD as a local matter.

That is correct. and they end up being obviously in most cases um more strict than the town would be. I I know in in in Hilton Head Plantation um we would be more strict and I I have a member of our ARB sitting next to me now and knows very well that we take this very seriously and require either mitigation or payment into um a tree fund um when they take down a tree, especially of this caliber. So, so we're thinking though that it might be four trees more or less to Okay.

I mean they the town is uh going to more home rule on on this particular if there is not a governing body that can apply that criteria then the town would step in.

So do we know what Palmetto Dunes PUD would require here? Do we know what their recommendations are? Well, like I said, their their mitigation requirements will be, you know, at minimum our mitigation requirements. So, um depending upon the actions the town takes today will dictate ultimately where they go with theirs, but they will mitigate for the the remaining tree. It's not dead. So that mitigation is required by pmetunes and we defer to our PUDS oftentimes. Question.

Uh yeah, just a clarification Mr. Eber. I my reading of the backup material. It looks like this ordinance change in the LMO that has really brought this forward to us really came about in uh fall of last year. I believe it was 2025. Prior to that, I guess private uh residential lots were not subject to the mitigation requirement and and and and tightening the LMO requirements uh private residential lots were brought under

Yeah, I wouldn't quite say that. Prior to that, if under the PUD they had their rules for mitigation, they would have had to been applied to that as well. the town, we didn't have specific mitigation requirements outside of a buffer uh for plantback and mitigation on a single family lot where these specimen tree was exempt from being removed. So, we tried to at least bring it before the public. Hey, this is happening on a private single family lot. You may want to consider this before you you do X. Thank you. Thank you, Mr. Eber. if we could hear from the applicant.

Uh I am John Watts. I'm a representative of the Bazis, 12 Heath Drive. I've uh my history with them is I've been their contractor since 2012. I've done work uh primarily interior work for them since then. Um they're out of town. They live in New Jersey and I'm here just as representative for them. Um, a lot of the information that we just saw was information that I compiled together. Um, I don't really know the rules and laws of of the trees, but um, but I can tell you this one is uh one that needs to come down. So, and then other than that, I'm here uh for any questions.

Any questions for Mr. Watts? Mis, I don't really have a question, just an observation. Yes, ma'am. I wanted you to know that I appreciate the completeness of the application, including the opinion from the certified arborist. I think that makes our job easier. Thank you. And there were there were actually two certified arborists, one from Paladunes which issued the permit and then and then another. So I had a lot of help with that from the town. Any other questions for Mr. Watts? Thank you, sir. Okay. Thank you. Any rebuttal from the town?

Thank you. Uh any uh member of the public would like to comment on this application. Okay. Hearing none. Um does anybody have a motion? I would like to move, Mr. Chairman, based on the findings and facts and conclusions of law that we grant this variance provided that Pomemetto Dunes apply any appropriate mitigation they see fit. And Mr. Christian made a motion. Uh I have one question before I ask for a second or one observation to point out. Um unfortunately the staff's report doesn't have conclusions of law. Thank you.

Um they've left that to us. Uh so so uh we if we we can't adopt it quite like that. It motion has to be then just based on the findings of fact. Uh I I might I suggest that we simply state some conclusions of law as part of the motion? What what I what I would suggest to you is is that there there are the four required findings one way or the other and because they're not included in the report um proced the findings are facts are included in the report the findings in fact are no but the the the findings under under the LMO the the four the four things we have to find that they were demonstrated in other words that that's that's part of our

No and I'm basing my motion on the findings of fact under each of the each of the criteria. Might I suggest that you simply say that we uh incorporate the four factors and find that they have been met as a matter of law. Well, how would we say based on incorporating the findings of fact, we're I move to appro approve the incorporate the findings of fact by reference and and conclude that the factors set forth in the LMO for the granting of the variance have been met.

It's the criteria, not the findings of fact that's the problem. There's no opinion saying the criteria have been met. We need to find that the criteria is met by those findings of fact. And that's what's missing from the staff report. Well, then I would just simply move that based on the information we have received, I believe all the criteria have been met for the to grant this variance request. Okay, we have that's Mr. Christian's motion. Do we have a second? I'll second. Mail seconds. Uh Karen, would you please call the role? Yes, sir. Mr. S, I I agree with the motion. M I agree with the motion. Mr. Agree. I agree with the motion. Agree with the motion. Mr. Agree with the motion.

Mis agree with the motion. And Mr. for the motion. Thank you.

Thank you. That concludes the first variance. Uh the second second matter is variance number 0000251 2026. Request from Daniel Kerschsburg, owner of 14 Pelican Street, also identified as Buer County Tax Map parcel R5501500A 046700 0 for a variance from Elmo section 166104 F2A general requirements to remove a specimen that is located on a single family lot. Mr. Eber.

Again, thank you chairman and board members. Before the board today, this afternoon is a request from um to remove a um specimen tree at 14 Pelican Street on a single family lot. The subject property is developed as a single family RSF 6 lot within the um force beach neighborhood overlay. It's bounded on all four sides essentially from single family This one I can't zoom in, but you all know where North Forest Beach is

in the area. But this is the official zoning map for y'all. Again, we go back to section 166 104 F2A. No specimen tree can be removed except in accordance with paragraph B below. Um, if preserving specimen tree causes unnecessary hardship, the applicant may apply for variance from this subsection. Once any required state or federal government agency approval, if applicable, to remove the tree is received in writing. Again, it's a 36-in tree and it becomes a specimen at 30. Here's the site plan that was submitted to the town for review. I actually did the review for the pool and flagged the tree as something that needed BCA approval before it could be removed. Here's some existing photos. The applicant tried to give me some photos today. We couldn't quite make it work. He had a few more photos, but this essentially the the left photo probably best shows the live oak that's overhanging the house from the backyard. So variance criteria number one, there are extraordinary and exceptional conditions pertaining to the particular piece of property in question. Findings of facts. The subject property contains a specimen tree that the applicant stated is approximately 36 inches in diameter. The subject property contains four

specimen live oak trees and one significant live oak tree. The subject parcel is approximately 0.27 27 acres in size and generally consistent with all of the parcels around it that are adjacent. Criteria number two, these conditions do not generally apply to other properties in the vicinity. The findings of facts. The tree subject tree is within approximately 9 ft of the home and is located within the proposed location of the swimming pool. The tree is not significantly closer than what is typically observed in a residential site condition within the surrounding areas. The risk associated with the tree has not been professionally evaluated to determine if there's any imminent likelihood of failure. Absent such analysis, the hazard level is considered typical of trees related conditions within the vicinity of this property. On March 19th, 2026, I, Brian, received a phone call from Jones Brothers Tree Service, who the owner asked to who was the owner asked to examine the tree in question. Clay Jones, who works for Jones Brothers, is an arburist and stated to me that in his opinion, the tree was healthy. Variance criteria number three. Because of these conditions, the application of this ordinance to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property. The subject property contains four

specimen live oak trees on it. The property owner's proposal of a 350 ft accessory use swimming pool is a sole reason for the removal of the tree. the property owner's proposal of a 417 square foot permeable pa pa deck also for the pool. The applicant has a self-created has self-created this hardship due to the location and size of the pool. He could have proposed a smaller pool at an alternative location. Criteria number four, the author authorization of this variance would not be of substantial detriment to adjacent properties or the public good and the character of the zoning district where the property is located will not be harmed by the granting of this variance. Criteria number four, findings of facts. The proposed variance is limited in scope to the removal of a single 36-in diameter specimen tree and does not involve broader site alterations or changes to the overall development pattern of the property. The forest beach owners association has approved the removal of the tree. The removal of the subject tree will not materially alter the established character of the neighborhood which is defined by mix of mature vegetation, residential structures and and maintained landscaping. The tree removal was not supported by a certified arbor report. And finally, the LMO's official determination based on the findings of fact. It is staff's recommendation that

the board consider the findings of facts and circumstances of this variance request and make a decision that is believed to be the most fair and equitable desire for all parties involved in this matter. Thank you. I'm here to answer any questions you may have. Questions for Mr. Iber have a question. Um, thank you. Uh on this property, is there other available space to build a pool of this size that would not require need need the tree removal? That's a good question. Of this size and the pool paper decking, probably not.

Do you know if there are other pools in this neighborhood that are of this proposed size? Yes, sir. There are there are Do you know Do you have a Do you have an approximation of when the house was constructed? It it appeared to be in the 80s 70 1972 approxim

I'm I'm good with 1972. Thank you. Brian, have you looked at would the property support a pool of a lesser size and not involve removing that tree? There are portions of the property that would support a pool of a smaller size and still be inside of the building setback buffers that surround the property. So that you could the applicant could fit a pool on that property. It may not be the size of the pool that's represented here. That would not require the removal of this tree.

Yes. And it may not be in it. I would also say it may not be in a desirable location on the property as well. And you had indicated that the this homeowners association was in support of the removal of the tree. Yes, sir. They were. Do they have any mitigation requirements or they are not of a sufficient organization that they can have mitigation requirements? The mitigation requirements would be the town

would fall for the town in this particular matter. Okay. So, I'm on the Forest Beach Owners Association board and we have ARB review and they reviewed the plans for the pool and the tree was there and they overall approve the plans. However, the Forest Beach owners association doesn't issue removal approval like Palmetto Dunes does or that the town does. We our owners association and our covenants do not provide for that. Does that make sense? No. Say that again. So our covenants and our owners association.

Are you on the boarding? I am. I am. We review ARB. Frank Guio and the Forest Beach Owners Association have a right have the rights for ARB review in that area. Forest Beach Owners Association will review plans for projects such as this and approve them. H that said, we don't outright approve tree removal. You don't go to the association and app and ask them for the tree removal. It goes to the town. But the application states that you approved the removal of the tree

in so far as as it fit within the plans. Yes, the ARB did. So you're saying I did not see the plans for the pool until I saw the packet. But but you're saying it wasn't an explicit rem approval to remove the tree. It was an approval to build a pool that would that requires removing the tree. Correct. So that it was not approved then. So, so it would not be accurate to state that you specifically your organization did specifically approve the removal of the tree. They approved the overall plan which which by default would have to include the removal of the tree.

I think I think what they're getting at is the town typically reviews tree removals and and ultimately does that. that's on us. Um, as an area outside of the gates, uh, we do review trees, landscaping, even though the board may approve one thing, we may need additional trees or plants within a buffer or setback. It's quite common. So, it was just a conditional approval. Yes. Thank you. It it is very much a conditional approval. Thank you, Mr. Bieber. Uh, we could hear from the applicant.

Do you need any slides? No, we're good. You You pretty much covered it. Thanks. So, basically, um I I wish to put a poll in. Um and I heard your questions about the size and actually just um if you could state your name for the record, I apologize. That means

I'm I'm Daniel Kerchber. I'm the owner of the property at 14 Pelican Street. And the um when you when you look at the property, the property doesn't really allow you to put a pool elsewhere because if you start looking at the because you can see on the site plan that the actual other live oaks that are specimen quality are in the front yard, sideyard, and then back in the corner in the area that you can't use anyway because it's the um it's not within the building. envelope. The other part of the uh the significant tree is in the very front corner. Um besides that, there are two pine trees, all of which are, you know, both of which are pretty significant. On the um back corner lot next to my uh again on the site plan next to my um neighbors, we we we share another live oak. It's not specimen quality, but it's still or size. Um, there's a large cedar and of course all of the root systems are are affected by a pool because it doesn't sit on top of the ground, it sits in the ground. So, you have to dig the hole. So, you ask the questions about could I move a pool somewhere else. Well, Mr. Iber told you the size of the pool couldn't be and and and if you go to even a smaller pool then what's the purpose of the pool and and and that becomes a you know um an issue. Is it a spa or is it a pool? Um and and that's the way I look at some of that. So, um other than that, I I um I if you looked at the uh actual location map, you notice that you you

can't see my house from above, you know, and so that that means that they uh you know, the roofers can't come and tell me I have to replace my roof because they they haven't done that that survey. Anyway, um that's an aside, but you know, um and so I'm just asking to remove one live oak of um and I have three others that are specimen quality and one that's in in actually in 2013 when I bought the property, it was specimen size, but somehow when they redid the survey, it's it's only significant now. So, it went on a weight loss program. Okay. Thank you. Do you have any questions for me?

Any questions for the applicant, sir? Do you Is this Do is this your permanent home or do you you rent it? It is. No, it's my permanent home. It's been since 16 since Matthew. So, any other questions for the applicant? Um, I would just ask anything else you want to address on the criterion for us be before you conclude. It's up to you. I'm just

Oh, I I understand and and it was the discussion I had with Mr. Eber before, you know, I don't need 20 minutes. I I I think it in my mind, common sense tells you I want to put a pool there that trees in the is in a way and it's the best position for the pool with privacy and everything else. It's at the back of the lot. It's not in the front of the lot. It's not, you know. So, I think I hopefully I've covered everything. I answered all your questions. Thank you, sir. Thank you. Any rebuttal for the town?

Okay, that uh closes the presentation of the town and the applicant. Is there anybody from the public who wants to address uh this variance application? Um, okay. Just uh woman behind you, uh, please, uh, step up and just state your name for the record. Uh, you have three minutes.

Hi, I'm Helen Talra. I live at 12 Pelican, right behind this gentleman. And I'm really not sure what tree he's talking about, but if this tree that sits up against my fence, that is a huge, beautiful tree. and you can trim it up and you can still have access to repair the roof. I don't think it needs to be totally cut down. And I don't personally think there's enough room back there for a pool. And if you want to talk privacy, that's right beside me. So, I I disagree with a lot of that stuff. My personal opinion. Thank you.

Thank you very much. Um Yes, sir. Hi. Um, I'm Craig Cunningham. I live at Fort Pelican. I know Ellen's across the way. Um, Dan said he wanted to know if I'd come up and say something. I've had the place for 13 years. It's not our permanent home, but we come for two months in the spring, two in the fall, and expect it to be our permanent home at some point. Uh, what I'd ask is that fairness be considered in this. There's a house next to me. You could see it in the picture when they showed our neighborhood. Basically, that lot was clear-cut about three or four years ago. It had, in my opinion, several specimen southern magnolia and several significant southern magnolia. It wouldn't take an arborist to tell you what those were. They were massive. They were stacked this big around and they had to bring in heavy foot to pull them out. I don't know if this board saw anything on that, was asked to approve it, but I hope all our residents are treated equally. And that's pretty much what I have to say. That lot was this is a small impact compared to what was done at two Pelican. I live at four. My place is full of trees. I love my trees. I don't care. Dan is across the way a bit. It doesn't impact me. So, I don't have a a dog in this fight, but I'm just hoping that fairness comes into play when some trees are considered one way and possibly others are considered another way. It's not a, you know, those were live oaks, but I saw that southern magnolia was on the list and two pelican had the whole yard was magn. That's it.

Thank you, sir. Uh, Mr. Williams. Mr. Chairman, members of the board, my name is Chester Williams. I'm a local attorney here in Hilton Head Island. And uh in full disclosure, Mr. Kerschburg came to me a while ago and asked me to represent him on this variance. And I had to decline to do so because of health issues and other obligations, work and otherwise. And so he's sort of been on his own. But um I didn't want to miss the opportunity to come hear what the presentation was. Some of y'all may know, I mean, I served on the county's zoning board of appeals for I don't remember 14 or 16 years. You know, you you when you sign up for the the county boards, they don't tell you it's a possible life appointment. But um so I I know what it's like from down here. I know what it's like from up there. And one of the recurring problems that we had at the county level was, you know, the effect of the imposition of county zoning ordinances on previously subdivided lots that that were just completely out of context with it. I mean, it came up often in the the context of docks. You know, you have a subdivision and everybody but one or two people have a dock and one of them wants to put a dock in. Oh, the code doesn't allow that. So, so those those sorts of things I think are the types of things that variances are designed to address. And I want to see if I can give you all a different take on some of the criteria here. The the extraordinary and exceptional conditions. I would submit to you that if you look at the aerial photos of the property that there are very few lots in that picture that are essentially completely obscured by trees.

Most of them the houses are quite visible. And I would submit to you that that sort of tree coverage coupled with the fact that you have four specimen live oaks and another significant tree on the property on a property that is a quarter of an acre. Those I think are extraordinary and exceptional conditions. I mean that is that's a massively and and it's really ironic that if Mr. Kirchburg had been here a year ago, he wouldn't have had to go through all this because the code would allow him to remove the tree without having to get a variance. It's one of the changes that Mr. Streker pointed out that occurred last fall that have resulted in him being here. But I I think I think clearly that that's an extraordinary and exceptional condition. And when you look at the overhead th those conditions do not apply to the vast majority of the surrounding properties. Um and then the question of the conditions certainly it doesn't prohibit the use of the property. The question is and it's a judgment call each and every time. Does the inability to remove that tree uh result in an ex is it what's the word? Does it unreasonably restrict the utilization of the property? I would submit that given the amount of of remaining tree coverage that'll be there that it does restrict. There's no other place. You can look at the site plan. There's no other place on the property where you could put a pool. You know, who wants to have a pool in their front yard to start off with? But even if you did want to put it in the front yard, you're likely still going to have to remove a specimen tree. So there really is no other location for that and and I mean the town's write up says the variance will it they agree it won't be

a substantial detriment. So I think there is a way to look at the criteria here and the and the physical condition of the property out there and come to the conclusion that this is a variance that ought to be granted. Questions or comments? Thank you Mr. Williams. Thank you. Uh, yes, sir. Yes. My name is Eric Brooks. I'm the contractor for Mr. and Mrs. Kirchburg for the swimming pool. I just wanted to adjust the young lady's the tree that we're taking out or requesting to is not against the property line. It is against the house overhanging the house. So, I just wanted to reach out and let you know that.

Thank you. Thank you. I don't think we could, I apologize. I don't think we can do this twice. Um, you I just wanted to say that PA is voluntary. Not everybody in that neighborhood is involved. Do it twice. Can't hear it. Thank you. So now bringing it back to us. Um, comments.

I'm having a hard time with this one. I think that uh, you know, you a a home may be a requirement on a lot, but a pool is not a requirement on a lot. And the tree isn't causing any damage to the home. Yes, it's overhanging. It can be trimmed if that's that's an issue, but I'm I'm having a tough time with this one. Mr. B,

I think from I think from my opinion or I went visited the house Saturday and I think there's some unique things here to remember is I mean this is a large specimen tree. You know, today it may not be causing harm to the house, but eventually its root system will. The tree is on a about a three-foot mound. So, the tree is mounded and then it goes down. So, there's there's been erosion of soil from around the base of the tree already. I'm not indicating that this tree is going to blow over or not, but eventually it's going to cause harm to the house. The limbs overhanging the house now are probably causing some some maintenance issues. You know, for me, I agree with the arborist. This is a this is a this is a tree that's live and well. But on the other side of the equation, this tree is only live and well because in in the 1970s when this house was built, it was built around this tree. So in essence, the applicant, maybe not this applicant, but the contractor of the house created this situation by not removing the tree. I mean, there are already four other or three other specimen trees in the yard. If you look at it from the top view, you can't see the house. So, I think that those are some circumstances that we should consider is that had the you know, if this house was being built like some of the neighbors houses in the neighborhood, you can see I mean, this tree canopy is consistent. If the lot is vacant, they're going to be trees there. And in a lot of instance, those trees are gone. So, I think taken into those circumstances, that's something that we should consider. Well, we're actually trying to project the future if we do take that into consideration. And one of the future things that might also be considered is

the fact that when you dig that hole for that pool, you are going to be damaging the roots of many of these trees apparently. I just So that's all I have just an observation. I

I would When I visit the house, what looks like where this pool's going, it looks like there's this tree and there's a palm tree that's marked on the corner of the house, but there no other trees in this backyard of of any substance. I mean, I agree with what you're saying, but I think in this particular case, there's this one tree and then it's, you know, there's no other trees that appear to be affected by what the construction to be done,

but but the but the tree canopy designates where that root growth is going to be. And if you're into the tree canopy anywhere around, you're going to be damaging the root structure of all the other trees in that area. So it isn't going to it isn't the removal of one tree. You're you're going to damage the root structure of all those other surrounding trees as well. Exactly.

But I don't Mr. Chairman. Yeah. I I think without the unfortunately you know none of us are professional arborists on the board and so to some extent we that's one of the requirements of the arborist recommendation which we don't have and uh so whether uh it's a we did get about it being a healthy tree but other than that as far as how it affect you know its removal would affect other trees or not we don't have that from the arborist so I think to make an assumption or or an estimation on one one way or the other is we just don't have that basis of fact I guess to work off of.

Right. Um, the other thing I was wondering is back to the findings of fact, Brian, I don't know if you can go back to that page about the hardship again, like Peter was saying, you know, it's like if you if you're trying to if you if it was like in the middle of a lot where you needed to build a house, yeah, it's a hardship if you couldn't build a house, but is not having a pool a hardship? Probably not. Um, so in that sense and and and we're guided to follow the LMO and I realize the LMO changed from what it used to be. If this was requested a year ago, probably it could have been taken down no problem. Um, but but the LMO has changed and we, as I understand, are required to follow the LMO to the best of our ability and uh give our ruling based on that. Um, so yeah, here we are on I don't think it was quite this page, Brian, that I was looking for.

Two, one, two, or three, or four. Uh, maybe before the finding. What? Go to the preview. Yeah, go to the criteria pages. Sorry. No, back to the criteria. Next criteria. Next one. Next one. Should have printed out, I guess. Okay. Go to the next one. Next one.

Yeah. Uh, no. I'll I'll pass. I guess I printed it out if you want. You mind? You just have to ignore my scroll on there. But I could do that.

I think it was the criteria I was looking for. I'm sorry. I apologize. Okay. I probably have that as well. Well, if I can help it. I'm not seeing it here, but I but in any case, yeah, it's my understanding is still whether it's a hardship. I question if it's a hardship. Yes, Mr.

I have a question for the contractor. If how long would it take to get a professional arborist in to do an evaluation of these issues? The potential damage of taking down that tree and uh the issues that were discussed. I don't think it I don't think it take very long, but this tree is the only tree in the backyard. All the other trees are all around the perimeter of the property, the outer perimeter. So, you've got you've got that on the survey.

Yeah. I mean it's this is the only tree in the backyard. So, but to answer your question, I don't think we we have had Jones out there, but if you see that there is no other tree besides a palm. Everything else is out the front yard on the side prop the corner property I think was the uh near the corner the fence that she was speaking of and everything else is on the left. So, even if we did a diameter, those trees are the roots the root zones are underneath the house. So this area here removing that tree, we wouldn't affect any any tree on the property. Now other areas, if we built the pool on the right, we're going to affect all those trees on the right side. The front, we got two large trees there, and I can't do anything on the far left. There's no room for a pool. even if we made the pool smaller on the back of the property. Um, as he had mentioned there, it's it's a huge mound and I guess it's been like that way for years, but it's the whole tree overhangs the front side of the house. I mean, it's overhanging the whole thing now. That's probably why you can't see the top of the house is just from that one tree. And I think Mr. Kirksburg has already had several large limbs fall on his house from that tree. Not that it was dead, just a storm or wind or something. But it's it's regardless we do a pool or not, even if I do a smaller pool, Miss Kurtsburg needs it for exercise and that's why we were building it for her. So I that's that's my opinion.

Thank you. Thank you.

So like Mr. Christian, I too am having a hard time with this. I live in this neighborhood. I'm on the Forest Beach Owners Association board. We've worked with the town on tree preservation and and actually we're probably the impetus behind this addition to the LMO. So, I'm torn because I understand what the Kersburggs are looking for, but I also understand what our neighborhood is. And when I look at the aerial view of Pelican Street, Dan's house and Maryanne's house is the one that has all the canopy. you see canopy around the other homes. So, I'm really kind of torn here. I know what happened at Two Pelican with with the removal of those trees and and other surrounding homes where lots were clearcut and there are no significant trees in some of those those homes. And it saddens me when I bought my home in Forest Beach that it was Forest Beach and we've experienced, you know, one tree at a time, death by a thousand cuts. So, you know, I don't know what to do here. To follow up on your question, it would seem to me that if one could obtain um an opinion from an arborist uh that all of us would feel a little bit more comfortable because this is a hard decision. I think the fact that I think an arborist could give us a more definitive opinion as to the harm that may or may not occur with the remaining trees on this property if this one tree is removed because you're talking about a root system that is extensive. I have had personal experience having had in another

location uh a very large tree that was affected by a town's replacement of a sewer line that was 50 ft away from that tree. It killed the tree. And I even happened to be there at the time they started that work and and stopped it personally until they could have an arborist come in, which resulted in relocating the line to the location where they put it. It was still too close to that tree. So, I'm very concerned. The these root systems are far more extensive uh than you might imagine. I'm not qualified to make that assessment. Um but I would have more confidence in making a decision if we had an opinion from an arborist

one but before you speak one to to picking back you know the information of which I think that's information that would be very useful for us also some information that would be useful for us is an opinion on the current tree in the house is this tree causing damage to the house I agree either with its root system with the sediment that falls on the house, the potential dam, the potential dangers in a storm of when it goes through the house. So, I think all of that information would help us. Yes, sir.

Um, could I have a continuence then since you you know, it sounds like if I if an arborist comes and tells you, you know, at least helps you to make the decision, um, that's what I need and and I would appreciate that. I mean it's a simple to to me it's a common sense it's one tree and it's one root system and that's Mr. You know, Eric was going to that system would all be removed where and like he indicated you look around all those other trees aren't going to be affected by that pool in my backyard that's affecting nothing else. Okay. But if I could have a continuence then I guess until the arborist comes and tells you yeah it's a healthy tree or whatever.

What's position on that request Mr. Iber? Um, I don't see my staff attorney or a town attorney here to help guide me with this. Have we done continu Mr. Chair? Maybe maybe I can help. Maybe I can make a motion that we delay this decision until continue this hearing. She knows what I'm trying to say. um continue this until we can get more information on an arbor zone potential damage root systems and exposure to the house of the current tree. Uh we we have a motion from Mr. Green. Um is there a second? I'll second it.

Second from Mr. Sackheim. Does the town have any position on the motion? No, sir. We do not. Okay. Thank you. U please call the role. Karen, certainly. Mr. Sackheim, for the motion. Miss Fee, approve the motion. Mr. Green, approve the motion. Mr. Christian, for the motion. Mr. Ster, for the motion. Mr. Bis, for the motion. And Mr. Finger Hut, for the motion. So, the case has now been continued without date. Um, when there's more information, I guess you'll coordinate with town staff and we'll get this back on the schedule.

Thank you. That concludes uh this matter. We're up to the uh public comment portion of the agenda. Does anybody have anything they want to speak to that is not on this agenda? Not pertaining to these variances. Anything else? Okay. Hearing none. Are there any staff reports? No staff reports. Uh may I have a motion to adjurnn? So moved. Second. All in favor? We'rejourned.