Guest column: R-2 Zoning change - just another log on the fire?

May. 19, 2014 @ 11:23 AM

Why are we rezoning five subdivisions from R-1 to R-2? Is it really a good idea?

Last month Pigeon Forge Planning Commission acted on a request from Sevier County to change the zoning designation of five  major subdivisions that are in Pigeon Forge's Planning region, but under Sevier County zoning jurisdiction: Bear Creek Crossing, Black Bear Ridge, Parkside Resort, Sherwood Forest and Wild Briar. 

In my last article I dealt with some of the technical reasons why the rezoning is not necessary.

All, or most, of the cabins are not multi-family currently — each would have to have three, or more, bedroom/kitchen combinations. Even if they did have the required number of bedroom/kitchens per structure, multi-family is not allowed in the Critical Slope Zone - property with steeply sloping land of 30 percent grade or more. Only one dwelling unit per lot is allowed. The taller allowable heights of multi-family development is not allowed either. The maximum height of unscreened housing is 25 feet.

So if the change in zoning is not allowed according to our own rules and regulations, what useful purpose could it serve to make such a request? I have my own opinions, but fire safety isn't one of them. It concerns the "grandfather clause."

When a change is implemented to our zoning resolution, that change effects the properties in that zone. It could be any change to our zoning resolution, but here I'm talking specifically about our critical slope zone, which effects most of the properties in these subdivisions.

Once our critical slope ordinance went into effect, almost all of the housing in these subdivisions became existing, non-conforming structures by reason of the new requirements of the critical slope zone. These requirements concern the safe development of houses on steep slopes and address a number of  issues such as water run-off, fire safety and aesthetic viewsheds. Any development that pre-existed the change is now a non-conforming use. As such, it's allowed to exist in its non-conformity, but it's not allowed to expand or rebuild without permission.

"Local governments, such as Sevier County, lack the inherent power to control the use of private property within their borders. Their power derives from the State through specific delegation by the General Assembly." When Sevier County adopted planning in 1996, and zoning in 2006 it was by virtue of the state enabling legislation respectively at TCA § 13-3-101  et seq. and TCA § 13-7-101 et seq. "While local governments have considerable discretion to act within the scope of their delegated power, they cannot effectively nullify state law on the same subject by enacting ordinances that ignore applicable state laws, that grant rights that state law denies, or that deny rights that state law grants.

Specifically, the "Grandfather Clause" is a delegated power of the State pursuant to TCA § 13-7-208. This statute, although found in the Municipal Zoning section of the State's zoning laws has been found to be applicable to county governments. The county cannot contradict this state enabling legislation. Residential uses are not "grandfathered" under this statute, and commercial, industrial, and multi-family are  only "grandfathered" under specific conditions.

In order for a non-conforming residential property to add or rebuild on their property, they must first come to the Board of Zoning Appeals and ask for a variance. They are not "grandfathered." A "variance," as the word implies, is an allowable departure from the current rules and regulations.

After the fire at Black Bear Ridge that destroyed 53 houses and damaged 20 others, I expected to see these property owners come to the BZA, of which I am a member, and ask for a variance to rebuild.

In fact, I asked our planner, Jeff Ownby, if this would be the case. His reply was, "No, they would not be required to ask for a variance."

This, however, is in direct contradiction to state law. The county has no choice but to require a variance. Any building permit issued to rebuild or add onto a non-conforming residential property, that does not first secure a variance to do so, is an illegal building permit.

TCA § 13-7-111 makes it a Class C misdemeanor to "unlawful  erect, construct, reconstruct, alter, maintain or use any building or structure or to use any land in violation of any regulation..."

And our planning department has been knowingly issuing illegal building permits for the reconstruction of  these cabins, since none of them have come before the BZA and asked for a variance, and staff has been made aware that they would need to.

Now that Sevier County Planning is asking for a rezoning of these properties from R-1 to R-2, without any other good reason for doing so,  I'm wondering if it's so they can get the properties grandfathered under the multi-family provisions of the state statute. Coincidence?

Our Board of Zoning Appeals has the power to require conditions on a variance and we have done so in the past. After the fire, I expected to see these property owners before our BZA. Since the properties don't meet our current density requirements, and since density may have been a contributing factor in the conflagration, what conditions do you place on a variance that would allow these property owners to rebuild in a safe and responsible manner?

That was the question I had of myself after the fire last year; so I called upon my friend at the Tennessee Division of Forestry, FireWise coordinator Leon Konz, and asked if he could help.

On April 26, 2013, about six weeks after the fire, a meeting was held at the Pigeon Forge Fire Department with expert Stephen Quarles of the Insurance Institute for Business & Home Safety in Richburg, S.C. The purpose of the meeting was to generate a report on lessons learned and possible mitigations.

Dr. Quarles has generated several drafts and is finishing up his Final Report, which I hope will be available in the next few weeks. Since I've been intimately involved in the commentary of the drafts, and I don't know the timing of the Final Version and its impact on the proposed R-2 zoning change, I might be at liberty to give the readers a preview of what they may be seeing in the report in my next article.

Peter J. Bush, who lives in Wears Valley, is the secretary of the Sevier County Board of Zoning Appeals. He’s the former secretary of the Sevier County Hillside Taskforce and the Sevier County Building Inspection Advisory Committee. Bush is also a member of the National Association of Home Builders, a Certified Master Builder, a Certified Graduate Remodeler, a Green Building Professional and an NAHB University of Housing Instructor.