Charlottesville Board of Zoning Appeals
April 19, 2007
Public hearing and discussion among members
(Note: if you are spot any inaccuracies, please notify firstname.lastname@example.org)
The applicant, Erik Wilke, representing William Emory is appealing the zoning determination made on February 23, 2007 by the Zoning Administrator, Read Brodhead. The applicant is appealing the determination which stated that a “technical mistake” resulted in parcel 56-109, 56-40.4A, and 56-42.3 to lose their overlay zoning status as Individually Protected Properties. In addition the applicant feels these parcels were inadvertently re-zoned by act of City Council without any required notice to the property owners, neighbors, or the public at large. Report by Read Brodhead, Zoning Administrator.
Mr. O’Halloran; I’d like to open the public hearing, lets see the sheet, the list of who signed up, Gillian Kyles? If you could state your name and address for the record please.
Gillian Kyles: I am Gillian Kyles, I live at Riverside Avenue in the Woolen Mills, I’ve lived there for over twenty-two years.
A lot of reference has been made to Kay Slaughter’s letter. Knowing she wouldn’t be here she asked me to read it so that it would go into the minutes of this meeting.
Mr. O’Halloran: If you could just keep your comments to three minutes please.
Ms. Kyles Yes I know.
Dear Members of the Board of Appeals,
While I am not able to be present for the meeting on this appeal, I would like to submit this letter for the record because I believe I can shed some light on the underlying events key to this dispute.
I was a member of City Council from 1990 to 1998 and was very interested in historic preservation. I provided council support for the preparation of the City’s first historic preservation plan, adopted in ninety-three, the same year the Timberlake-Branham house was added as an Individually Protected Property .
In addition, although councilors are elected at large, the Woolen Mills Neighborhood Association was excited that I, a resident of the neighborhood, had been elected as a member of Council, and the group looked to me to represent neighborhood interests. I therefore tried especially to stay abreast of issues affecting this historically underrepresented neighborhood and apprised myself of re-zonings, special use permits and historic designations.
Thus, I was cognizant of the implications of the designation of the Timberlake Branham property, # 56-40.4, in the fall of 1993. When Council voted to designate this property as an individually protected property, the entire property was considered historic, not just the portion on which the house stood. This was important because, beginning in 1989, the long-range plans of owners was to develop a Planned Unit Development, Pud, on the back portion of the property. Plans for senior or retirement housing were promoted by the then-owner as well as by the tenant, the Jefferson Board for Aging which operated the Day Care Center, which later changed into the Mary Williams Senior Center. Therefore, the neighborhood and council understood that any new housing built on the property would need review by the Board of Architectural Review. This was very important to the neighborhood and Council in 1993.
Therefore, I agree with the appellant’s reasoning and appeal on this issue that the neighbors and community at large have had no specific notice or opportunity to be heard on the issue of removing the IPP status from a portion of the property. Moreover, the City’s zoning administrator has made an interpretation of the zoning ordinance in a manner that is contrary to state law, as interpreted by the Virginia Supreme Court in Gas Mart.
Under current zoning, the developer must undergo BAR reviews of any proposed new development or renovation on an individually protected property. If an owner or the City wishes to remove designation from a portion of the property, thereby rezoning it, the City must give appropriate public notice and opportunity for public comment.
I hope this clarifies some of the history and that you will agree with this conclusion. Sincerely, Katherine E. Slaughter, Member of Council, 1990-98
Mr. O’Halloran: Thank-you very much
Ms. Kyles: Thank you
Mr. O’Halloran: Anne Coughlin?
Ms. Coughlin: Thanks for hearing me. My name is Anne Coughlin, I am a professor at the University of Virginia, School of Law, and I am a member of the Woolen Mills Road Association.
Mr. O’Halloran: State your address too please.
Ms. Coughlin: Lego Drive, Charlottesville
I can’t speak to the technical threshold questions and, in fact I don’t want to. I heard some of the lawyers mentioning that you’ve already been given voluminous memos about these questions.
I guess my position would be to urge you to try to see through them and to think hard about the very basic questions that you are presented with today.
One of them is the right to property, which is protected by state law and also by the Federal Constitution.
Of course we are speaking about the rights of individual property owners but also the rights of adjoining land-owners and the entire community in protection of the historical-district. The very basic notion being that you have got to give the people due-process, you’ve got to give people notice and an appropriate hearing, you’ve got to give them some forum within which their interests can be heard.
I really think it would be frightening and an unspeakable precedent for you to allow taking of property interest by typo, or by some sort of administrative oversight, it is really a very frightening thing and it doesn’t do fairness to the individual parties in this case, here the adjoining landowners.
Taking by typo? That is just absolutely wrong.
The other thing that I really urge you to think about is the precedents that you are setting for the future, and the ability of the community as a whole to rely on the records.
We have to be able to rely on the accuracy of the records and to rely on the fairness of the procedure in changing those records.
If Mr. Emory hadn’t sort of randomly been looking through the records and discovered this error we might not have known about it. Thank heavens he did.
But you can’t put that burden on individual property owners to constantly be checking and to be sure that an administrator hasn’t introduced an error.
Again, this is not to cast any aspersions on administrators, they are busy and mistakes get made.
Again, I would urge you to think both about fairness to the parties here and what the most minimum due process requires, which is notice and an opportunity to be heard. And then also to think about the precedent and the way in which this kind of taking by typo would really threaten and jeopardize all of our ability to trust the stability of the records.
Mr. O’Halloran: Thanks very much. Laura Covert?
Ms. Covert: My name is Laura Covert. I live at East Market Street. I am here today on behalf of the Woolen Mills neighborhood, I am co-president of the neighborhood association.
I wanted to be really really brief, I thought you were wonderful and said a lot of what I am interested in, and it is a matter of precedent.
One of the things Mr. Brown said, and with all due respect to the City’s counselor, he is representing Mr. Brodhead, he is not representing each of you. You all are representing the citizenry.
And I think that it is a huge, the huge issue is intent. What did the City Council intend? And what did all of the people who have considered this over the years intend to do with this property?
I think it would be difficult to make the assertion that they intended it to be divided up and to have the overlay on top of it. (???)
I believe this mistake was made honestly. But, if there is no mechanism by which we can correct these errors, then how does the citizenry have any assurance that when errors are made, not innocently, that they are going to be corrected?
If we have no mechanism for doing that, what are we to do? How do we have confidence in our government, how do we have confidence in our representatives, the people who are appointed to represent us and elected to represent us in the City if we have no mechanism for these corrections?
Mr. O’Halloran: Victoria Dunham?
Ms. Dunham: Victoria Dunham, Marchant Steet, Charlottesville, Virginia. I’ve lived in the Woolen Mills Neighborhood for fourteen years.
I am going to stay away from the legalese, I think you all have probably had enough of that and speak as a concerned citizen asking you, imploring you to honor the Timberlake-Branham site’s seven-acre historically protected status.
Most of the people you see here today are merely that— concerned citizens. None of us has any financial interest in the outcome of this proceeding, and we are here because we are trying to do the right thing.
The people that you see here in this room today are only a representative sampling, as some could not attend today due to work constraints or illness. However the outpouring of support via calls, prayers, and e-mails from Charlottesville, across the state, and even around the country, has been overwhelming on this one issue.
The people in our community understand that mistakes do happen, even in government. One might possibly put forth… (Laughter) Shocking, isn’t it? One might possibly put forth the notion however that this sort of error could more easily happen, and then be overlooked, in the Woolen Mills Neighborhood—especially when one considers the biased, and chronically harmful, industrial zoning that was thrust upon a portion of our historic and solidly residential neighborhood.
When combined with decades of lack of oversight by some in the city that purports to represent us, this mistake can hardly be considered surprising. But it was that, it was an oversight, it was an error.
What has been very surprising, however, is that the city has not only seemed unwilling to fix the injustice they inadvertently did to this property, they then decided that the best course of action was to create a series of compounded errors that only muddied the waters further. Quite frankly, we expect better from our City, and that is why we are here, we are asking for better.
The City has told us that the BZA holds the remedy to this problem and that this is the course we must follow and that is why we are here.
We ask you to understand that document after document overwhelmingly supports Council’s original intent—that the entire parcel be protected.
The personal remembrances of so many from that time, including the Branham family themselves, back this up. When, in 1999, they scattered their mother’s ashes between the vegetable garden and pasture behind the house, the family did so with the full knowledge that six years previously the City had protected their home place forever.
Finally, and most painfully, after receiving the memo of landowners from Mr. Coiner’s attorneys two days ago, we now believe the Timberlake-Branham site to be in far greater danger than we originally had thought.
We are aware, as are you, that having this property under BAR review— as is entirely appropriate— in no way means that it can’t be developed at any point in the future.
As a matter of fact, we support, and have always supported, any by-right development of this property.
But what does it say about the future of this particular historic site that the current owner, himself a BAR member, who for years has presided over the many property owners and developers who have appeared before him, apparently has so very little faith in the system and guidelines he espouses for others and that he vociferously seeks to avoid them for himself? That’s a red flag regarding the future of this property that must not be ignored by either the citizens of Charlottesville, or the City government.
This property is in danger.
We are not saying that property needs to be rezoned an IPP, it still is an IPP.
Mr. O’Halloran: Thank-you… Louis Schultz?
Mr. Schultz: Hello, I am Louis Schultz, I live at East Market Street and I just have two quick things to say.
One is, I have a great deal of respect for Mr. Coiner and have always appreciated his openness with his plans. He has always been willing to share that with the neighborhood.
I am really concerned that someone who is himself a Board of Architectural Review member would do, what I think to be something very dangerous, in terms of setting a precedent, that suggests that we shouldn’t be open to the judgment of the Board of Architectural Review, that he is willing to excuse his own property from that sort of oversight is something which I think is actually very troubling to me.
The other things is I guess, I am maybe the only one willing to say it, I think the suggestion that all of this is a mistake is a little bit charitable. I have been on the receiving end of mistakes that have been perpetrated by the Department of Neighborhood Development Services, and knowing what that amounts to, I am not willing to believe that there aren’t personal or perhaps unwritten departmental agendas that show up in things like this.
Mr. O’Halloran: Thank-you. The last person signed up. Is there anybody else who wishes to speak at the public hearing?
Mr. Coiner: Mr. Chair, my name is Preston Coiner, I live at 2nd Street Northeast, I am a stock-holder in Burgess Lane Properties and I am the manager and a member of Woolen Mills Storage. Mr. Payne is probably ready to throw rocks at me because I promised that I’d keep my mouth shut, plus the clock is running.
We did buy the property in 1996, with the full understanding that the house and the immediate land around the house was protected.
We met with the owner, he told us the basics of review. We looked at the rear section, if you’ll look at the plat you’ll notice that it is a pipe-stem, and that also it was two types of zoning. The rear part of the parcel was actually zoned M2, which would not, M2 would not allow for any type of housing, it was heavy industrial.
We bought the parcel X and parcel Y as one property. Then, either in 2000 or 2001, we had added some additional acreage, we did some subdividing, and we subdivided off the M2 section. The M2 section then became M1 by the City changing zoning ordinance. We applied for a site plan and building permit to build a portion of the self-storage.
In 2005, we applied for a site-plan and a building permit to increase, to expand the self-storage, on the parcels that is now being said is protected.
It’s, all of the conversation about 2003 and what happened and who shot John, the reality is, that the property was subdivided in 1989 into two parcels and that City Council designated one parcel as protected and one as not.
It was clear to me at the time and until... When we bought it I spent approximately two hours with Ron Higgins who was with the City and we walked the property, my wife was with me. They showed us what we could do and we couldn’t do.
You know in some respects, some things I hear are like personal attacks on me, and it shouldn’t be. We bought the property, it is what it is.
If some of the neighbors felt that it was protected, where were they in 2001 and 2005 when with full knowledge of what was going on that they not be concerned?
I am not saying that my memory is not flawed, but certainly, Ms. Slaughter, trying to recall exactly what happened when she sat on Council, I mean, I have a great deal of faith in Ms. Slaughter but certainly, age affects, in time, affects your memory.
We… the City Staff, City Staff spoke to the previous owner. City Staff spoke to the previous planning department head, City Staff spoke to the person who did the historic survey, and another City councilor and they all said “No, that was not the intent.”
Thank-you for hearing me.
Mr. O’Halloran: Thank-you Mr. Coiner.
Mr. Stevens: Mr. Coiner, I have a question, you mentioned 2001 and 2005. I am not familiar with, what did you mean, what happened in 2001 and 2005?
Mr. Coiner: The property was sub-divided. The rear portion which was zoned M2 was sub-divided off of whatever parcel number it is and added to some other parcels.
Mr. Stevens: In what year?
Mr. Coiner: It was either 2000 or 2001 and then again in 2005.
Mr. Stevens: And when did you do your site plan with the Planning Commission?
Mr. Coiner: The same year.
Mr. Stevens: Were there any challenges to that?
Mr. Coiner: No, there was no question, it was pretty cut and dried, it was a by-right development. As it is now, if it is considered historic, we have got black-top and metal buildings.
Mr. O’Halloran: Order please. All right, thank-you Mr. Coiner. Anyone else who wishes to address the public hearing? Please state your name and address for the record.
Mr. Ackerman: My name is Karl Ackerman, I live at East Market Street in the Woolen Mills.
I would just like to offer my thanks to my neighbor Bill Emory for discovering this error which we believe was an error, and ask the Board to correct it.
I would also ask neighbors who are here in support of correcting this error to stand just so you’ll have a sense of the support in the neighborhood.
Mr. O’Halloran: Thank-you. Anyone else wishing to speak? If not I will close the public hearing. Board members?
Ms. Roudabush: Mr. Chairman, I’d just like to remark that our firm did the survey in 1989. I don’t have any interest in the property and I really don’t have any personal interest in the outcome other than to make sure that it is done correctly so I don’t feel like I need to abstain from discussing this with (?)
Mr. O’Halloran: That’s fair. Thank-you for your disclosure.
Mr. Fink: Mr. Chair, I have a couple of disconnects and my first one centers around the 1989 subdivision. By definition, typically, sub-division show some kind of future development intent. Not always, they don’t have to, but I find these, in my role on the Planning Commission, typically, that is what we see with subdivisions.
Now, it’s hard to gauge intent. It’s hard to gauge, my other disconnect is, we have no written record or no disposition of the intent of Council in 1993 with this designation.
Ms. Slaughter, who I have a lot of respect for, remembers it one way, it would be great if we had language or minutes or a staff report. These are my friends and neighbors, I live in the Woolen Mills. Part of our role here is to protect the citizens here of Charlottesville, which also includes property owners. So I have a, and on the other side, I would be fine with taking this through the process, but then I would have to reconcile the fact that in 2001 there was a site plan submitted to the Planning Commission that was approved. Recommendation of Council that was approved. And in 2005 there was the same thing for, this is for the construction of Mr. Coiner’s self-storage units. And then in 2005 there was additional action to increase that. So I have a hard time with a challenge now.
I mean that in 1989 that parcel, parcel Y, the lower parcel by the railroad tracks, did have an M2 designation. Mr. Herdon may remember that there was a potential plan for something called Enterprise Park, I think, during that time. So I don’t see how, I am trying to reconcile how this whole parcel was protected four years after the fact given that there was an M2 designation, and I just, I wish Mr. Brown were here.
I think that if there was a mistake made, it was made by the tax-map people saying it was one parcel when clearly it was a subdivision long before this historic designation. And that is my disconnect with this whole process, how can we reverse that, that is my statement on this, in support, frankly, with Mr. Brodhead’s ruling.
I live in a historic house, I love historic houses, I love historic properties, we have a great neighborhood, I understand the angst of the neighbors, but in some ways I feel that it is just slightly misplaced, I don’t think that Mr. Coiner is trying to pull a fast one. I mean if he had in 2001 he should have been accused of pulling a fast one or in 2005. I mean, this has, this has been nothing that has been accomplished under the cover of darkness if you will.
You know, we need to be as neutral as possible. I mean the facts tell me that everything was done by-right, I think, as Mr. Brodhead said, there was a technical mistake, but then as our City attorney, I know he is representing Mr. Brodhead, but he also, I find him to be very impartial, and he tells us clearly that a challenge to such decisions, you have thirty days to make that challenge.
As I read this, I am just not in favor of overturning Mr. Brodhead’s decision, based on everything I have heard today.
Mr. Stevens: I share your second concern, that’s the biggest problem I have, that nothing was done back in 2001 and 2005.
Mr. O’Halloran: Can you speak up Bob?
Mr. Stevens: I share your second concern, that is the biggest problem I have here with the appeal because, you know, I would like to have seen the neighboring property owners to have done something in 2001 when the site-plan was before the Planning Commission. That, to me, is the time that I would like to see this challenge.
Mr. O’Halloran: Anyone?
Mr. Garrett: I might weigh in, I think, on some procedural grounds, what we are being asked to do, I have questions as to whether or not it is even in our purview. What our task is, is that we review the findings of the Zoning Administrator, Mr. Brodhead.
Mr. Brodhead looked back over the City Records and made a determination.
I think we’ve talked about how, all we could do is look at the documents that are in the record, we can’t look at intent. I think Mr. Brodhead researched what happened, he looked on the face of the documents, and he made his determination.
I think that for us to go back and review those same documents, we have to come to the same conclusion as Mr. Brodhead did. I don’t think that there is anything in those records that would indicate that he made a wrong decision.
That troubles me, however, because if indeed that there was a mistake, I am pondering, what would be the proper (remedy) for the citizens? I don’t think it is coming through the Board here.
Mr. O’Halloran: But what is it?
Mr. Garrett: And that is something for perhaps, some attorneys to figure out. There may not be a remedy. There isn’t always. It could be, as we already discussed, that perhaps a remedy could have been reached in 2001. You know, I don’t know at what point people can challenge or look back at an issue like that but I have to say that I think that we have a very scope of view here and perhaps an injustice was done, perhaps there was a mistake, but I don’t think this group here can reach that determination. I think it is outside of our (???)
Ms. Roudabush: Well, I agree with what everyone has said so far and Mr. Fink’s comments about the actual approvals and things that have happened on the property over the years. And it is clear that the original parcel had two zonings on it.
Zoning lines don’t change when you sub-divide property, they stay where they are. You can add to property and take away and those zoning lines stay in the same place. That certainly goes along with this designation. But it is somewhat perplexing to me that property that was zoned for Industrial land would have been protected. That is very, doesn’t necessarily make a lot of sense, I don’t know quite what, if that was the intent, and that is unfortunately the situation we are in, what was the intent? Was everyone aware at that time of all the circumstances? This was one property in a series of properties. It wasn’t looked at individually, maybe, for some details that should have been looked at the time. I certainly agree with Mr. Garrett that our focus is narrow and that we need to be careful as to what we do consider.
Mr. O’Halloran: On your one point, I think it is important to clarify that an Individually Protected Property doesn’t mean that nothing can happen to it, it means that the BAR has to review whatever happens to it, so that even if it is zoned M1 or whatever, you can still have BAR review, it doesn’t mean that the status quo has to be maintained forever.
Ms. Roudabush: And was that, was the development that occurred in 2001, was that reviewed by the BAR?
Mr. O’Halloran: I think not.
Ms.Roudabush: So, so that is a very perplexing issue there because that occurred prior to the 2003…
Mr. O’Halloran: …Zoning ordinance. And then again in 2005 there wasn’t that…
Mr. Wilke: The error was discovered in 2006
Mr. O’Halloran: Thank-you
Mr. Garrett: If I might add, I am looking at a chronology provided, looks as though, December 22nd, 2006, Burgess Lane Properties filed a petition to remove the historic overlay from .2 acres of land. And, it looks as though it was that action…
Mr.O'Halloran: What page are you on?
Mr. Garrett: I am sorry, this is a bound. The page before
Mr..Fink The page before number 203…
Mr. O’Halloran: At the beginning at the middle at the end?
Mr. Garrett: There is a chronology, it’s called the Timberlake Branham timeline. And I see that at that point in time, Burgess Lane was attempting to…
Ms.Johnson: Do we know who prepared that document?
Mr. O’Halloran: Laura Covert
Mr. Garrett: What I am saying is that at this point in time it looks as if Burgess Lane was trying to change IPP status of a portion of the property and it sounds like that was what alerted everyone to look at this afresh.
And certainly, for Burgess Lane to want to remove a historic overlay and stuff like that it has to go through issues I mean he was following what needed to be done, I think that is what alerted…
Mr. O’Halloran: Well, it also suggests that they are, that they are acknowledging that there is an overlay.
Mr. Garrett: Exactly (???) What I am saying. This one, it’s not in dispute that it is within the IPP overlay. I guess what I am saying is that this is what brought it to bear. That is why I again say in 2001 and 2005 these issues were raised they weren’t brought up .You know, I just see that this, this gave them an opportunity, gave people an opportunity,to do that, like there would have been previous opportunities as well. I am troubled by the fact, that, that is why we have time limitations on things, people relying on past decisions or things that were made and, I can’t read anyone’s intent, I mean anyone, But I think that the current owner, I think his, this testimony here, saying what he did and what his intentions were, we are going to have to take it at face value, take the record for face value.
Mr. O’Halloran: I still have real procedural questions, the basic question of whether this body ought to be reviewing this case or not is one that we have to acknowledge.
There is also the question of intent and how much we can get into it. By that I mean what the Planning Commission in 1993 and the City Council in 1993 intended.
I don’t know, we now have the minutes that Mr. Wilke provided us just this evening. I don’t know whether it would be appropriate to bring those into our discussion. One option of course we have before us is to continue this.
We do have an awful lot of material that we reviewed before this meeting. We were presented with Mr. Payne’s material quite late. We were presented with some more material by Mr. Wilke tonight. And of course we have heard testimony from a number of individuals tonight.
We need to remember that we have the option of continuing this until next month, if we think that is an appropriate thing to do.
Maybe you can all help me to think through whether it would be fruitful or even appropriate to look back at 1993 and the decisions that were made then. Whether we can try to clarify whether the entire parcel was supposed to be designated as an historic overlay district, or, an IPP rather, or, whether it was just the subdivided parcel.
Mr. Garrett: I think that would be interesting, except for the fact, lets say, that we do find, that it is clear from the record that all of the parcels were incorporated into that. We still have at issue though, can we, as a Board of Zoning Appeals, then go and fix that kind of mistake.
Mr. O’Halloran: After 2003…
Mr. Garrett: I think that might be, if any of us are of the idea that we can take that kind of action, we could research that. But if we, as a board, think that is outside of our authority then there is no point of even looking at it.
Mr. Wilke: I’d like to point out that as a board you could always seek legal counsel in this action as to that issue, but independent legal counsel, not the City counsel.
Mr. O’Halloran: Yes, and I do think that it is important for all of us to remember that Mr.Brown does not represent this body. I know that John, on the Planning Commission or on City Council, people turn to Mr. Brown for advice, he does represent the Planning Commission, he represents City Council, but this is a different kind of body.
Mr. Fink: Mr. Chair, if I may, I have read through these minutes a couple of times and I can’t read intent or lack of intent, there is just a designation by address and tax map parcel number. While we certainly could continue this, I mean the facts will not change. I mean, if we revisit it next month. I don’t, I don’t see what we could do retroactively. Given the fact that there has been two publicly noticed applications, one prior to the adoption of the new zoning ordinance, one after the adoption of the new zoning ordinances.
And I believe that, by law, the adjacent neighbors are noticed, individually, if there is any kind of application.
There is nothing I can read in here, there are good facts, but there is nothing that says intent. I mean the facts that we know are that in 1989 the property was subdivided, one parcel was designated M2. And one was uh, one was what, there is X and Y, so the one by the railroad tracks was industrial. We know that in 1993, 1512 East Market Street was designated an IPP along with seventeen other properties. That is all we know.
And we know that since that time we have had applications and site plan submittals, and ample time for public comment. I think that Mr. Garrett’s point, I believe our purview here is relatively narrow.
Mr. O’Halloran: I think for me, I just don’t know the answers, I am not a lawyer, I think there are a lot of questions here, and I think it wouldn’t be a terrible idea to get some counsel on this.
Mr. Fink: How do we go about that as the BZA?
Mr. O’Halloran: What is our budget?
Mr.?? This might be an appropriate moment to get a legal opinion.
Mr. O’Halloran: I feel like we are in the dark here. I can’t, honestly I can’t decide, I can’t tell what to do in this situation because I don’t know what is proper and legal to do here.
Mr..Fink: You mean what our options are?
Mr. O’Halloran: What our options are.
Mr.Fink: Mr. Brodhead, when is the May meeting, out of curiosity, when is the May meeting, do you have that date?
Mr. Brodhead: May 17th.
Mr. Fink: Do you want to see if we can’t get a neutral opinion?
Mr. O’Halloran: Yes, personally I do.
Mr..Fink: Then I’d like to make a motion, I move to defer this hearing until our regularly scheduled May 17th meeting. We can’t appoint Mr. Brodhead to this because he is now… because he is being represented
Mr. O’Halloran: I’ll do this with your help
Mr. Fink: And then we, in the meantime, we secure a neutral legal opinion, and should we plan to have that person at our hearing.
Mr. O’Halloran: We have had the public hearing tonight, we would not foresee hearing from the public or from the parties at that time, but we will, the thought is we will think through everything we have heard tonight and obtain counsel so that we can try to clarify what is, in my mind anyway, pretty muddy waters in terms of what our responsibilities are here and what our purview is.
Mr..Fink: I know that was a long motion Larry, but did you get most of it?
Mr. O’Halloran: Do we have a second?
Mr.?? I second…
Mr. O’Halloran: All in favor?
Mr. O’Halloran: The matter will be then continued until next month, May 17th.
Mr. Payne: Do I understand that we are not going to be allowed any further input?
Mr. O’Halloran: Right
Ms. Roudabush: One piece of information…
Mr. O’Halloran: … We’ve had the public hearing tonight, we have heard from both sides.
Mr. Payne: I understand that, but we are not going to be allowed to know what these legal opinions are… (???)
Mr. O’Halloran: Sure, you can come to the hearing. You can come to the hearing, but we won’t have either side speak at that hearing.
Mr.Payne Could you please note for the record our objection?
Mr. O’Halloran: Sure.
Ms.Roudabush: One piece of information that is not included that has been alluded to and may or may not mean anything but I would be interested in finding out if it is possible to obtain is what the tax map looked like in 1993, if we could have a copy of the City tax map.
Mr. Fink: …Like it was a hand drawn line between the two parcels? As I recall from reading one of these briefs, I don’t know which one
Mr. O’Halloran: But isn’t the issue that it wasn’t shown on the map, that the subdivision wasn’t shown on the map until quite recently. Mr.Herdon is our map expert…
Mr. Herndon The parcel was added in 2001
Mr. O’Halloran: To the map
Mr. Herndon: To the map, to the tax map. It was subdivided by Roudabush in 1989, but the parcel itself was not actually put on the City tax map until 2001.
Mr. Fink: So Jim, when you guys looked at that, it was legally recorded in 1989. Which one outweighs it? I mean if it was legally recorded, does that have bearing in this instance? Because tax maps are said not to be accurate right?
Mr. Herndon: Do I have an attorney here? (Laughter) We had to go, when we looked at the ordinance that we had in 1991, which was the previous ordinance to the 2003 ordinance. In 1991 we looked at that, it was shown on the tax map as one large parcel, all the way to the railroad tracks, and the reason was that the City Assessor’s office, the Commissioner of Revenue does the tax maps, but the City Assessor, for reasons of being frugal, and trying to send out not as many tax slips, changed (?) parcels
even when they are subdivided, if they are owned by the same person, they’ll keep that as one parcel so they only have to send out that one tax ticket. In this case there was two parcels, there was the parcel Y, X, X &Y there was the parcel around the house and then there was the rest of the property but they looked at it as tax map 56-40.4.
So in 1991 we recognized, technically, the entire, the entire thing, in the 1991 zoning ordinance.
When the 2003 zoning ordinance came about, that parcel was designated, that part of land was designated, just that part around the house, 40.4 was only the parcel of land around the house.
So, when the ordinance was adopted in 2003, in the ordinance it was spelled out, tax map 56 parcel 40.4. At that time, on the official city tax maps, was only the area around the house.
Mr. O’Halloran: OK. Alright, so we have decided to continue to the next meeting. Thank you all for coming. The next item on the agenda is the review and approval of the March meeting minutes.