It is September 4th, 2025.

Good evening and welcome to the September 4th meeting of the town council's Board of Adjustment.

It's now a little after 6:30, so the meeting will come to order.

In uh Mr.

Lagou's absence, Miss Charnica Harrell is serving to staff to the board this evening.

And our board attorney is Mr.

James Baker.

Ms.

Harrell, could you please call the roll?

Yes.

Mr.

B.J.

Warshaw.

Miss Judith Mueller.

Mr.

James Bartow?

Present.

Mr.

Emilio Garza?

Present.

Mr.

Alan Fishkin?

Present.

Mr.

Joe Weiner?

Present.

Dr.

Thomas Wortman?

Here.

Mr.

Tom Grasty.

Present.

So that's six members present.

The chair declares that a quorum exists for the conduct of the board's business this evening.

The first item on our agenda is the approval of the agenda.

The agenda everyone has in front of them was out was mailed out to them on Friday, August 29th.

I hope everyone's had a chance to look at it.

And if so, are there any objections or amendments to tonight's agenda?

Move to approve.

We have a move.

Second.

We have a move to approve and a second.

May we have a roll call, Ms.

Harrell?

James Bartow.

Approve.

Emilio Garza?

Approved.

Alan Fishkin?

Approved.

Joe Weiner.

Approved.

Thomas Wortman.

Aye.

Tom Grastey.

Approved.

With the unanimous approval.

The motion to approve the agenda for tonight's meeting has been carried and the agenda is adopted.

Next, are there any announcements this evening?

Okay.

I have just a small quick announcement.

First, um, this is a point of clerical.

Uh Taz has noted uh that Benjamin's name is on our agenda and some of our uh materials.

He is obviously no longer serving on the board.

He's going to uh work with the clerk's office to have that stricken.

So if anyone had seen that and it was an issue, it is being resolved.

Second, as everyone is aware, Andrew Strata and Benjamin uh McAvoy Bickford and James Farron all have rolled off the board.

So that places us at uh it aid members uh with two alternates.

And two of they are both here this evening.

Uh I'd like to welcome one here on the dais, uh Joe Weiner Weiner, my apologies, and David Nam is out here.

So thank you both for your service.

Um one of you is doing more service tonight than the other, but thank you for coming down.

It's very much appreciated.

Um third, in light of the excused absences of Judith Miller and BJ Warsaw.

Uh Mr.

Weiner will be serving, as I just said in their place, and uh Mr.

Nam will be observing.

Um are there any petitions before the board this evening?

Okay.

Seeing none, we will now proceed to approve the minutes of our last meeting, which was June 5th of this year.

Um are there any objections to the minutes as drafted?

Move to approve.

We have a move to approve.

Second.

Second.

Um Ms.

Harrell, would you please take the roll?

Uh James Bartow.

Approve.

Approve.

Alan Fishkin.

Approve.

Joe Weiner.

Approve.

Thomas Portman.

Aye.

Tom Grastey.

Uh yes, I approve.

Uh unanimously, it is the prerogative of the chair to say that this motion is carried.

And the minutes from our last meeting on June 5th, uh meeting of the town of Chapel Hill's Board of Adjustments have been added to the official record.

Okay.

So with all of our housekeeping stuff out of the out of uh the way in the agenda behind us, there's just one piece of old business before the board.

Um I need to sign at some point.

We don't have to do it now.

The resolution that we passed on June 5th.

If you all brought it, I'll be happy to sign it when we complete tonight's meeting.

So now we'll turn to new business.

Um there is only one piece of new business in front of us this evening.

Um it is an after-the-fact variance, uh dimensional variance.

Tom.

I think you have to vote on the written decision for adjusting, please.

Oh.

We do.

My apologies.

Um move to approve the uh decision document.

Second.

We have a motion to approve in a second.

Can you call the roll, please?

Thank you, Ms.

Harrell, for correcting me.

Um James Bartow.

Approve.

Emilio Garza.

Approved.

Alan Fishkin.

Approve.

Joe Weiner.

Approve.

Thomas Wortman.

Approved.

Tom Grastey.

Approve.

Okay.

Now we're back to the main event.

The after-the-fact dimensional variance for 105 timberlane court.

Ms.

Harrell, would you like to present the staff's report?

Is that monitor working?

Okay.

It is.

Hello again.

I'm Sharonika Harrell with the planning department.

Before I begin the presentation, I ask the chair to enter my presentation and all materials previously shared with the board into the record for this case.

So ordered.

The case before you this evening is a request for an after-the-fact dimensional variance for a property located at 105 Timberline Court.

The subject property is located in a single family neighborhood south of Weaver Dairy Road.

It's outlined here in red.

The property includes a single family home and an accessory building in the backyard.

And this accessory building is the subject of tonight's hearing.

The property is subject to uh 14-foot interior setbacks.

And the applicant requests a variance to reduce the setback to 10.9 feet so that their accessory building can be cleared for use and occupancy.

As usual, you can vote on one of two resolutions.

Resolution A will direct staff to draft an order granting the variants.

And resolution B will direct staff to draft an order denying the variance.

So with that, I can hand it over to the applicant.

Wonderful.

Thank you, Ms.

Harrell.

Before the applicant speaks, I just want to remind the board.

First of all, I just want to make sure that has everyone had a chance, that they wanted a chance to see the property in question.

And does anyone have any conflict of interest that they'd be aware of or had any expart conversations?

Wonderful.

Please.

Excellent.

And uh good evening, Chair Grastey.

Do we need apologies?

Do we need to swear him in first?

I was actually going to mention that, and I would assume your testimony would also be sworn.

Yes.

So do you solemnly swear that the information you're about to provide is to the best of your knowledge the truth, the whole truth, and nothing but the truth.

I do.

Great.

Go ahead, please.

Thank you.

All right.

No problem.

My name is Neil Ghosh.

I'm an attorney at the Morning Star Law Group at 700 West Main Street in Durham.

And I'm here tonight representing the owners of the property, the elders, in this request for a variance.

Let me first start by thanking Ms.

Harrell for the presentation on the application.

To be honest, there's not a whole lot here to flesh out, but I think it's worth going over the sequence of events that leads us here tonight.

The elders wanted to build an accessory structure in their backyard.

There's nothing controversial or novel about that.

They may have had some bad luck when they selected their initial contractor.

Of course, they did not know that at the time.

Unbeknownst to the elders, this is actually where the problem started.

Ultimately, the relationship between the elders and the initial contractor wasn't working.

There was a lack of effective communication, and the elders decided to move on from that contractor and hire a different one.

By that time, the initial contractor had already uh installed the slab for the structure.

And what's more, the town had conducted slab inspections and the slab pass.

This happened despite the fact that at that time the slab was installed in the wrong location, encroaching into the setback.

No.

Well, I understand that slab inspections would not typically include verification of placement.

The elders had no reason to think otherwise.

And at that moment, they didn't really have a general contractor either.

They are not general contractors.

They're not real estate professionals.

They're not involved in construction and development.

They reasonably assumed that there was no issue because the slab had passed inspection.

The elders hired a different contractor to finish out the work.

The new contractor built the structure correctly, but on the encroaching slab.

I believe the structure passed other inspections, including the final building inspection.

The encroachment issue actually did not reveal itself to the elders until sometime in June when they failed the zoning inspection on account of the encroachment issue, which was evidenced by the as built drawings submitted for that inspection or sign-off.

And that I believe that's in your uh agenda packet.

So this is the unfortunate set of events that brings us here tonight.

I noticed that the staff report characterizes this as an after-the-fact variance, which is apt.

Our argument here is not that a conforming structure would not fit on the space.

Instead, the hardship here is that despite the town and the elders acting in good faith at all times, this encroachment issue slipped through the cracks, which allowed the structure to come basically all the way to completion.

Um without detection of the encroachment issue.

So at this point, strict adherence would require tearing down the building and excavating the existing slab because that is where the encroachment is under the circumstances.

That seems like a harsh and unfair result, especially so because the elders went and spoke with their neighbors about this issue when they learned of it.

The owners of the property adjacent to the encroachment side have provided affidavits and signed statements.

Some of those are in your packet.

Uh I actually have to sign affidavits here.

Um, that uh that they were not bothered by the structure and that they would request this board to allow the structure to remain in place as it is.

And I think more than anything, that demonstrates that the requested variance is consistent with the spirit, purpose, and intent of the ordinance.

The structure is up, albeit in the wrong location.

This is the result of an honest mistake, or perhaps a few honest mistakes.

Uh, but it does not pose any risk to life, limb, or public safety, and it does not disrupt the harmony of the neighborhood.

I think this is a very understandable set of facts, a very unfortunate set of mistakes, and a very reasonable request.

And I hope you all will agree.

I want to thank you for your time and consideration tonight, and I'll be happy to try to address any questions you may have about this request.

Thank you.

Thank you very much.

It's Mr.

Ghosh, correct?

Correct.

Okay, great.

Uh and you will be uh addressing, uh we'll ask some questions.

Are the elders going to speak at all tonight?

I I I hope not.

Uh, I just was wondering if we needed to swear them in and oh no, no, I'm not planning on that.

I I hope I'll be able to answer your questions.

Okay, great.

Um, so does any member of the board have any questions for the elders' attorney, Mr.

Gush?

Please address them.

Hi, uh Mr.

Ghosh, thanks for being here tonight.

Uh just a couple of quick questions for you.

Um, the slab that was constructed, this was constructed by the elders originally, or was this by previous ownership?

The initial contractor.

So the initial contractor hired by the elders.

Correct.

Okay, thank you.

Um and one further question uh under the hardship section that was that was filled out.

Uh the the this it was noted that the setback would be costly and destructive.

Can you elaborate a little bit on the destruction?

Well, uh, so I mentioned earlier at this point, strict adherence to the code would require them to tear the structure down, sure.

So that they could excavate the slab.

Okay.

So let me the distinction I'm trying to make here is if the slab were built in the right location, not encroaching the setback, sometimes you might have framing that overhangs and encroaches.

This goes all the way down to the foundation.

It was installed incorrectly initially, and so everything else is also encroaching.

Um so to correct this issue at this point would require you to tear the structure down and then excavate at least a portion of that foundation.

Um and so that would be quite destructive.

Thank you.

Yep.

No further questions for me.

Okay.

Anyone else have a question?

Just to make sure I understand the slab inspections.

There were two of them.

Sorry, there were slab inspections.

There were two of them.

There were multiple, I believe there were two of them.

It and I'm it's under under each contractor.

No.

Both slab inspections occurred with the original contractor who was being non-responsive and ultimately fired around the same time.

The slab did pass inspection, but and and your staff might be better suited to answer this.

Is my understanding there that inspection is an inspection of the quality of the construction, not the placement.

So it wouldn't have they wouldn't have picked up the fact that it was in the wrong location anyway.

The point I was making earlier is, and the elders wouldn't have known that.

So they were just unaware that what a slab inspection entails.

And they also were all obviously unaware that it was encroaching.

As was the town, I think is is maybe more to the point.

Nobody knew it was encroaching at that moment.

But normally a slab inspection wouldn't uncover this.

So it's a good thing.

That's correct.

Yeah, that's correct.

Okay.

Does anyone else have a one else have a question?

Yeah.

My question, I think basically would be related to the procedure.

Um we have to make, I think, four findings.

Uh the second of those findings is that the hardship results from the conditions that are peculiar from conditions that are peculiar to the property, such as location size or topography.

Can you sort of um expand more on how this particular condition is uh met given the facts of this case?

Yeah, so so again, this is as is pointed out in the staff board a an after-the-fact um variance request.

So I want to I want to make clear we're not suggesting that a compliance structure could not have been built.

Instead, this is after the fact, it is encroaching in the setback.

Um and from that set of facts, the question you've asked, or the finding you've asked about is how does the dimensional aspect of it relate to the hardship?

The and and I guess it to me that's actually exactly what the hardship is, because it's in the setback, it would it strict compliance would require us to move it, but in order to move it, you'd have to tear it down.

Right?

So dimensionally, that is the problem.

If if if they were required at this point to strictly adhere to the code, it would be one, because of the dimensional encroachment, and two, there's no way to do it other than tear it down.

It's not like you can just like a trailer, you couldn't just pick it up and move it.

That's not what this is.

If I could build off of what I think James might be asking, um, just to further clarification, could this same issue have happened to any other property that used the same contractor that was acting maybe prematurely.

So I don't want to speculate on why this happened because to be honest with you, I don't know.

Right?

The initial contractor is out of the picture, right?

They're the ones that actually installed the slab in the incorrect location.

Um I'm I'm not intimately familiar with the town's processes for um uh issuing permits and and uh inspection, but I am familiar with those things generally.

This could happen to anybody who is using a contractor that is not quite good.

If I if I will if I can just think of it that way.

Anyone else?

Yep.

Sorry.

Uh another quick follow-up.

Um it's been sort of a long time since I dealt with any sort of or rather dealt with many issues regarding like agency and um employment of agents and whatnot, but that's sort of I do have a question for you.

Um, and it relates to element three, the hardship did not result from actions taken by the applicants or the property owner.

Um I was wondering if you could sort of explain to me normally when you hire somebody that sort of creates a relationship of their being your agent or something.

Um could you s tell me sort of explain to me how it sort of cuts that away so that it isn't the actions of the contractor aren't necessarily implied.

Imputed to imputed to, yes, exactly.

I think I think uh the way that I think about it in this context is again through the lens that this is an after-the-fact variance, not suggesting that he couldn't build it you know outside of the setback.

It could be built outside of the setback, but that didn't occur here.

What occurred here was a series of mistakes from the contractor.

I would argue the elders didn't actually make a mistake except for hiring maybe the wrong contractor.

But they they would have never known or could have known where the property line was.

The town also did multiple inspections.

I'm not suggesting it was the town's responsibility to make sure the thing was placed right at any of the those times.

They have their own process in place.

But the elders also just could not have known otherwise.

Right?

So yes, I'm I'm I would not suggest that the actions of the contractor are not imputed to the owner.

That that's not what I'm saying.

What I'm saying is there was a series of mistakes, not all of which fall to the owners, that led to now there is a structure in place.

Maybe the the contrasting scenario would be had anyone anyone mentioned the slab issue before the thing were framed up or built or the siding was on, well, it could have been corrected, you know, in a in a much more economical fashion, if that makes sense.

But there the checks and balances didn't work in this scenario for a variety of reasons, um, not all of which would be imputed to to the elders, the owners of the property.

Thanks.

Thank you.

Anyone else?

I have a quick question.

Um so I'm to your knowledge, and if not, maybe your elders can answer this.

When they hired the second contractor.

When they hired the second contractor, did they in any way change the footprint of the slab?

Specifically, no.

The the slab.

The the whole point with the new contractor was to find someone who would work on the slab that that contractor did not install.

So they didn't coming in after the fact and using the slab that was installed.

So they didn't increase the size of the slab.

No.

Well, it's interesting because I'm looking at the as built survey, and that structure is noticeably larger than the survey that you included in your applicant materials, which was done in 2023.

The initial survey hold on.

I will turn to it.

Is this is this the one you're referring to?

I think I can't quite see that, but if it was in the packet, then yes.

It was uh Yeah, it's in the packet and it shows a proposed office that is obviously outside the setback.

Yeah, okay.

That one?

Yeah.

That was actually prepared by the elders.

That had the contractor didn't prepare that survey.

That was prepared by the elders before they ever had a contractor.

Uh it's included in the packet here, well, because the elders included in their packet.

But if you go through the uh the the plans, uh-huh, those are that's what was submitted to the town.

Okay.

And then in fact, the town may have seen the survey, but this is the this structure is what was built um, you know, that that's what was permitted, that's what was built.

And that permit, to my knowledge, was not was not altered.

So it should not have been the footprint should not have been altered either.

But that if you're looking at that original survey, that original survey actually wasn't prepared by any contractor.

Oh, the elders just had a survey done.

Yeah, by on their own volition in preparation for this.

I mean, essentially they said, here's what we want to do.

Here's what we want to do.

Okay.

Did they share that with the contractor?

Yes.

Okay.

Um let me see.

That's all I've got on that.

Let me see if there's some anything else.

Um I saw that you had quite a few.

You didn't you all included quite a few uh testimonials from the neighbors?

Mm-hmm.

Um, which is always wonderful to have.

Do you have anything?

And I may have missed it, so pardon if I did.

Do you have anything from the town that substantiates any of these back and forths and things were approved and not approved?

Or any anything like that?

I did not bring a record of the inspections that were passed, if that's what you're asking.

Although I do think that is a matter of public record.

They I mean the slab did pass inspection, the permit did a new contractor was hired.

That's all uh reflected in the permits that that were used to complete this job.

Right.

Um I don't thank you very much.

I don't have any other questions.

Does anyone else did something pop into their head while we were talking?

An observation on the timeline.

Maybe we want to make sure I'm understanding this.

The survey that was done by the elders, they hired a this creedal engineering extated January and May.

So that was before that fit in with the rest of the timeline.

That that was before actually doing all the other inspections.

Yeah, yeah.

That yeah, that that's what I was suggesting earlier.

That the in that survey prepared by Credal.

There was no building.

Yeah.

They they didn't they didn't have uh any kind of architectural drawing for a building.

They were doing a plot plan to say this is what we want to do.

We want to put an accessory structure back here.

That's what that survey is.

It isn't reflective of anything that actually was built or anything that actually was engineered.

It was a plot plan to show the concept, if that makes sense.

That's what it was.

But it's not, I mean, I would say it's a little bit of a of a red herring in in the information.

It is something that was in the mix.

But before there was a building, if that makes sense.

Yeah, it does.

There's a landscape.

Yeah, Alan.

Yes.

It makes sense.

We're good.

Yep.

Well, if we don't have any further questions, then I would be happy to entertain a motion from anyone here uh that we close the evidentiary portion of the hearing and begin uh board deliberations.

I motion to close the evidentiary hearing.

We have a motion.

Second.

We have a second.

Ms.

Hale, could you please call the roll?

Uh James Bartow uh yes.

Emily Ogarza?

Yes.

Alan Fishkin?

Yes.

Joe Weiner?

Yes.

Thomas.

Thomas Wortman.

All right.

Tom Grastey?

Uh.

So with six eyes, that's unanimous.

We're going to uh pass that motion passes, and we'll now begin our deliberations.

But we'd like to keep the evidentiary hearing open in case members have clarifying questions for the applicant.

Um who would like to kick us off?

I will.

Good.

Um I mean uh so forgive me if I do this wrong because this is my first meeting.

But I I have concerns over a couple of the points and um James, you touched on this too.

Uh the specifically whether or not this was caused by the actions of the applicant.

And I maybe we need clarification on this and insofar as to how agents hired by the applicants are impacted by these rules.

But I think if if we hold the agents to the same standards that we would hold their employers to, then I I'm I'm struggling to find the route to approving the variance.

I think that's my number one roadblock.

Is anyone else having a problem?

Does anyone else share that concern or have another concern or a reason that they anything else they'd like to share?

Uh I do have a question to the town staff uh if this is an appropriate time.

Go ahead.

Um I wanted to ask kind of the the spirit behind and maybe the institutional knowledge behind the setback requirements, particularly aside setback requirements, if the town has any commentary or knowledge to that effect.

We do not with regard to this hearing.

The idea is that you accept the ordinance and setbacks as promulgated by town council.

Okay.

Does that answer where you were what you were trying to get to?

Yes.

Okay.

Um anyone else?

Well, just a quick feedback on your point around their agents they're representing feedback around your point.

Um you're hiring agents with a presumed level of expertise that you don't have.

So in fair in fairness to the elders, you know, you wouldn't be anyone in that situation unless you yourself have that skill.

There's an implied level of trust that you're paying for.

And you're essentially paying for that expertise.

Okay.

So that makes sense.

Thank you.

You don't have to agree with him.

He's just telling you that.

Just gave me my just my my feedback.

No, I I appreciate the the um perspective.

That's yeah.

No one else.

Um you do.

I can just I mean I I don't know like whether I would come out on one way or another.

I can just sort of go through my thought process on this.

Because I don't I feel like there's some legal questions I don't really a hundred percent know the answer to, and I mean I guess we could always come back to it.

But sort of here's my thought.

It's basically I think number uh I always sort of try to go by the elements, and I think elements one and four are not issues for me.

I think they're pretty much satisfied.

It's pretty clear that there's a hardship.

And I think the variance is consistent uh with the spirit and purpose and s and intent of the ordinance.

Um just because of stuff I generally know about town policy and ADRs and like if it was a mistake, then there's a sort of desire to encourage that.

Um but what sort of I'm wondering about is sort of three three things.

And I'm like I said, I don't know what the answer is to them, is number two, the hardship results from the conditions that are peculiar to the property, such as location size or topography.

Um if you take the hardship of the structure is here and we're gonna have to move it, and it's not their fault that it strikes me as incredibly clear that that ordinance is met because basically you have a non-conforming structure you're not responsible for, and um that nonconforming structure being in the setback is very peculiar to that particular property.

But then it gets to the hardship did not result from the actions of the applicant or property owner gets to the sort of question of employment of agents, and then there's the question of an after-the-fact variance versus a not a not after-the-fact variance, and I'm not quite sure, at least on my knowledge, that there's really a difference between the two and how we're supposed to consider it.

It just sort of is my understanding, and I could be wrong, is that a variance is uh variance, and we sort of ignore, I guess, what what's happened to get us to that situation.

If I'm not mistaken.

Um just it's we we sort of don't necessarily consider whether it's after the fact or before the fact.

We just have to sort of consider the elements.

So I'm struggling to see how that fits in there as well.

And that's sort of my thoughts.

And like I said, I haven't come out either way on that.

I've just sort of am thinking about it because I don't really know if I know the answer.

And that was a long-winded way of saying it.

And I'm not sure if this is going.

I have a question for the town.

Um actually let me hold off on that question for a minute.

Is anyone else have any other comments at all?

Dr.

Wardman?

Nothing.

Okay.

It's very unusual.

Um my question then to the town.

Um, and if you can't answer this, that's fine.

This is not going to impact my my thinking.

But I am curious, it were we to deny this after-the-fact variance.

What happens next?

Would they be required?

Well, just tell me what happens next.

There wouldn't be a zoning compliance permit.

And with that, it would be a violation.

They'd be subject to town enforcement.

Um that would continue until the violation were remedied, uh, either of the destruction of the structure or a modification of it.

Okay.

Thank you.

Did everyone hear that?

Okay.

I just want to make sure everyone understands the implications of kind of what's cooking.

Um I have one other point.

You raised you had a question on points two and three of kind of four.

We're going to come over there.

I'm sorry.

Um The attorney for the elders pointed out that the inspection of the slab.

They're not the town is not looking for the setb for setbacks.

You're just looking at the quality of the materials.

They're not they weren't checking when they were inspecting the slab itself, they weren't.

A slab inspection is looking at uh the depth of the concrete and that type of thing that th those aspects are.

Not compliance in terms of like, hey, you meet the setback rules.

I'm unaware of really any municipality that has on an inspector by inspector basis the ability to confirm where a property line is.

Okay.

You know what I mean?

So like that's why that part of the doesn't exist.

But it sounds like if the process did include review of the inspection, it would have caught it, and then this would have this meeting wouldn't be happening because it would have been resolved when the slab was taken care of.

We don't know what would have happened in that instance.

I know I'm engaging in a hypothetical.

It's a process then.

Yeah, there's two different types of inspections.

So we're talking about a building inspection and a zoning compliance inspection.

And it's the zoning compliance inspection at the end that showed that there was not zoning compliance because of the setback issue.

So it's it's a it's a different sort of inspection in terms of checking the boxes.

All right.

Thank you.

And if I could add the town also didn't have the ability to do the zoning inspection to determine where that slab was the elders or their contractor, rather.

For the for the zoning inspection, the town didn't actually go out and independently verify where it was.

What happened is the contractor, as would be required anywhere, the contractor provides an as-built survey that the town bases their zoning part of their zoning inspection on.

The as built survey is what identified that the slab is out.

Point being how is anyone supposed to know where the slab is?

You know, they hired a contractor to to do the work.

They assumed that the contractor was a good one.

And that may have been a bad assumption, but you know that that is how it's supposed to work, and then that zoning compliance comes in at the end, and that's when it was found out.

Had this been revealed to the elders at any point prior.

We'd we'd be in a much different situation.

Right.

That's that's where the hardship is.

Sorry, thank you.

Yeah, thanks.

I I'll just offer my my thoughts before we uh move forward.

Um it's interesting.

Um we haven't been confronted with this specific issue in the past, necessarily, you know, all this facts lining up this way.

But we've been presented with similar scenarios.

And um I know we're not supposed to look back on that, so I I won't necessarily, but I uh can concur with your concern that the town approved.

But I have a hard time getting around number three, which is the hardship did not result from the actions taken by the applicant a property owner.

Um I I know that they're not engineers and they're not can I know they're not any of those things.

But there does there exists a you know setbacks.

And those setbacks need needed to someone needed to at least look for them.

And the fact that nobody looked for them or looked for them and ignored them, to me is suggests that the hardship was for uh was on the part of the applicant.

That's kind of where I'm coming down on this.

If anyone would like to comment on that or elaborate, or we can, you know, I can entertain a motion to move forward.

I suppose I can speak to my thought process because I am also and I I think three seems to be a common hang up.

My thought process is that in my understanding.

No statement of fact.

The applicants took the action to bring on a contractor that took an action to have a preliminary site inspection done that uh applicant material uh 10 of 18 per the PDF that we have in front of us.

The action to hire the initial contractor resulted in an error, in my opinion in the execution of the desired action.

An action go back to the variance.

If the result of if if the result is an effect of the error, not so much the intended action by the property owner.

That's where I find myself maybe a little bit more on the fence, leaning toward yes than no.

Um leaning toward granting as opposed to denying, if I if I frame it this way as a an error in the execution of an action rather than a deliberate action made by the uh made by the property owners to place the place the foundation or the slab in the uh position that is violating ordinance and requiring a variance.

That's where my head's at.

I think there's a lot of talk about errors and I believe mentions that it was an honest mistake.

And I just want some clarification on this.

That do we grant variances to sort of forgive these mistakes, or do we grant variances when there's unavoidable hardship?

We don't we don't cure mistakes.

Thank you.

Well that killed the conversation.

I'm feeling that our deliberations may have concluded.

Is there a motion to that effect that perhaps we um close the hearing?

The deliberation hearing.

Move to close the hearing.

We have a motion to close.

Second.

We have a second to close.

If there's no further discussion or comment, would anybody like to propose a motion on the matter at hand, which is this after the fact variance, and we have uh two routes we can go.

Point of order.

I don't think there was any action taken on that motion to close the hearing.

And I also wanted to ask if there was an opportunity for the property owner to speak.

Well let's let's remedy that first question first.

Sure.

I apologize for the oversight on that.

Um we have a we have a uh a motion to close in a second.

Would you please take the uh the roll?

James Bartow.

Um to vote.

I think this is to close the hearing.

Or the deliberation, right?

The evidentiary deliberations or evidentiary portion.

Deliberations.

Have we already closed the point?

Just we could already close the evidentiary portion of the hearing?

Yes.

Okay.

Uh then yes.

Okay.

Thank you for for the procedural comment.

Emilio Garza.

Yes.

Alan Fishkin.

Yes.

Joe Weiner.

Yes.

Thomas Wortman.

Uh yes.

Tom Graste.

Yes.

Um passing unanimously, we have a motion to close the deliberations.

Yeah, Mr.

Graste.

The attorney asked to have the homeowners speak, but we've already closed the evidentiary hearing.

Are you suggesting we reopen it?

Um I would like to, if they would like to have an opportunity to speak, I'd like to give it to them.

I'll move to reopen the if I'm if I closed it prematurely, then we can reopen.

Let's let's do that.

I'll second.

Okay.

We have a second.

So we are gonna this is a vote uh to reopen the evidentiary.

My apologies for having to do this twice.

Could you please take the vote?

James Bartow.

Uh yes.

Emilio Garza.

Yes.

Alan Fishkin?

Yes.

Joe Weiner.

Yes.

Thomas Wortman.

I.

Tom Grastey?

Yes.

So uh we are back open.

So yes, if you would like to have the uh either of uh the elders speak, I think they need to be sworn in.

Yeah, they wouldn't and then uh happy to hear what they have to say.

Beth.

Beth Elder would speak.

Um you can stay at the podium.

Do you solemnly swear that the information you're about to provide is to the best of your knowledge, the truth, the whole truth, and nothing but the truth.

Okay.

Can you answer that verbally?

Yes.

Can you speaking to the mic?

Yes.

Thank you.

So uh if I may, this is Beth Elder.

Um her parents, the elders.

Hello.

Um that own the property.

Um they are the ones who uh who live here who we're talking about who be impacted by your decision tonight.

I thought it would be useful to have uh Beth speak to the purpose of the structure, their intent, and well not to rehash the facts.

I think we've gone gone through that.

But I I do think it's important that for the board to understand you know what they're up against and what it would mean uh for them, if you would.

Hi.

Um thank you for this uh variance hearing.

Oh, thank you for this variance hearing.

Um parents are elderly nearing 90, so I've been handling all the work with the contractors and um from the get-go.

And uh not knowing anything, it was my idea.

I anyway, I just got that survey and hired a contractor, and not I was it was my first time, so I just um when they said that when they put the building down, the slab, it's a cement slab.

I was certain I I it I had only to trust that they were because I I just didn't know that I figured the town gives a permit, so I think I assume the town is inspecting, um, and then the town came and inspected the slab.

So all along I'm thinking everything is good because everything passed.

And so also I also thought between the contractor and the town, we're good because everybody's there's checks and balances in play, um, nothing's awry, and um the only reason why I terminate with that contractor is because of miscommunication about other things, and I just felt like I just wanted somebody who we who is more forthcoming with working seamlessly.

So that being said, um when I got the new contractor, I again the permit was valid, so I just thought everything was good, and it never occurred to me in a million years that the town inspections this could go under the radar ever.

Like I I just I thought we I thought if the town inspects, there's nothing questionable what's going on.

So every step of the way, I just figured this we're good, move on, we're good, keep going.

Um I didn't know that I have to go that there were anything loopholes where the town or the contractor might not be covering tracks.

So if I had known there were anything that I had to go behind and check, I would have.

But um I just trusted the process.

So until the very end, and then it was could I ask just a couple clarifying questions?

Not that I think there's really any doubt about what what's going on here, but you you never instructed anyone to build a building on the property that encroached into the setback.

No.

In fact, the the my the survey, I the survey showed where it should be, so I never asked anything.

I just I thought they were gonna do the town and the contractors work together and make sure everything is good.

And the survey that you created ahead of time, you did share with the contractors.

Yeah.

And is my understanding that essentially you said this is the concept.

We want to put a structure in the backyard, as shown here.

Okay.

And you all have seen that survey.

That's in your packet.

That's that's what the homeowners hired someone to do, and what and that is what the person they hired to do failed to do.

Um whether that's imputed to the homeowner, I think is a tricky question, and I appreciate that you all are grappling with that, but I do think it's important to understand that the decisions have impacts on on real people.

I suspect, and I haven't asked my client this, but I suspect maybe I should just ask.

I don't know the answer to this question, which um considered it.

If the variance is not passed, I think you've heard from Mr.

Baker about what that would potentially mean as far as it being non-conforming, there being in uh code enforcement issues, having to correct those issues.

Um as we have reviewed the property.

You can't move this structure, you'd have to tear it down.

The slab itself is what is encroaching, you'd have to excavate it.

I think those things assume those things could be done easily.

Are you going to be able to build this thing back?

No.

No.

And I know.

Yeah, would you speak for the phone?

Oh, I I know that personal hardship is not part of um, but we we wouldn't be able to know.

Yeah, I just know.

I think you and when their zoning, the first zoning inspections, I was just learning about inspections and I I assumed that was the town measured that.

I didn't know.

I when they first doing inspections in July 2023, I thought that meant they're looking at they're measuring, you know, they're they're they're measuring the property line, they're doing all that.

Never occurred to me in a million years that that's they don't do that, they wait until after the fact.

So yeah.

Thank you.

I think I so I think you've heard from the property owner.

I I think I mean we've covered the topics, and I appreciate that there are things that are maybe a little a little bit of a struggle for for the board to understand.

I hope we've made our case um you know as as clear as we can.

Uh it doesn't appear to me that anyone on the board thinks that this the elders had any malintent here or anything like that.

So I don't I don't really want to belabor that point.

But I do think that the impacts c you know to them are significant, you know, if the variance isn't granted, particularly when the variance is reasonable and in the spirit of the ordinance.

The ordinance itself does not promote um economic waste.

That's not the purpose of the ordinance.

The setback issues in this context have are not related to fire safety or anything like that.

Um as as you've seen in the packet and heard from neighbors, they're not concerned about it, which I understand they are not the ones who enforce the zoning code, but I I think it speaks to the harmony of the existing structure with with the rest of the area, which is something that the ordinance is set out to do is to create harmonious neighborhoods.

I think all of that matters in the context of your decision.

Thank you.

Did you have any questions?

Thank you to both of you.

Um does any does anyone on the board have a question from Ms.

Elder?

No.

Thank you.

Thank you.

Yeah, it's a it I'm going to make a motion.

Okay.

Thank you very much.

Move to again close the evidentiary hearing.

Second.

Seconded.

Uh we have a f we have a motion to close the uh evidential hearing and uh a second.

Ms.

Harrell, would you please take the roll?

James Bartow in the Leo Garza.

Yes.

Alan Fishkin.

Yes.

Joe Weiner.

Yes.

Thomas Wortman.

Yes.

Tom Grastey?

Yes.

Uh with six votes unanimous, uh the the uh evidentiary hearing is uh is closed.

Mr.

Chair.

Yes, Mr.

Vice Chair.

This is a smelly stinky uh variance request.

Yeah.

Because of the particular circumstances of the that it involves.

Um it seems as if our role is to be reasonable.

And uh and keep a strong eye on the um keep a strong eye on why we have Luma re Luma reg uh regulations after all, right?

Um given all of that, and given how given the messy timeline of this, I would like to move that we adopt resolution A and ask staff to grant a decision granting the variance.

Seconded.

We have a second.

So just to be clear, we we have uh we're going to be voting here on adopting resolution A, which will grant the after uh the fact uh dimensional variance for 105 timber lane.

Um I have a quick question for the town before we move forward.

Uh we're I know we've done some reconfiguration of the board due to uh the city council.

We need how many votes tonight to pass?

I just want to get that clarified.

Right.

Uh so the board has been reduced to an eight-member board uh in order to adopt a variance.

You need four-fifths of the total board to adopt that variance.

Uh that would be six of eight.

Um I it's a little unusual tonight in that we have um an alternate who is here um but who is absent because they're not part of the dais.

And but yeah, it's ultimately I I believe it is six.

So to state the obvious, we all have to vote in the firm.

Yes, past that.

Okay.

Yes.

I have a quick question about that.

Are you um are you certain it's six or would it be if it's four fifths and you sorry you did my math wrong?

Do I have seven?

I did my math wrong.

That's the issue.

Um let me let me pull up my calculator.

So I think that's a good one.

Well I was thinking I'm glad we're having this conversation.

Thank you.

Yeah.

Eight divided by five times four six point four.

Well, okay.

Wait a minute.

So my thought I'll 6.4 around to six.

No, it doesn't.

Um it doesn't.

Now I will say, and maybe we could take a quick right.

If the chair would call a five-minute recess.

Yeah, I'd be happy to do that.

So um uh we'll go into recess for five minutes.

Thank you.

Thank you, Mr.

Chair.

Uh Mr.

Chair, during that brief recess, I took the opportunity to confirm that one of our alternates who are here tonight is recused uh because they are recused and not absent.

That changes the calculation.

And so it is possible to approve this variance with six member votes.

Can we can we uh could we continue the recess so we can have a discussion with the town attorney?

We had a few quite just a couple of things.

We don't need to go to closed session the other.

You know what?

I don't think we need to do that.

Um I have a do you want to end the recess?

If you if is everyone ready to end?

Yeah, that's at the bottom line.

Okay, so my question for the town so yes, we've ended the recess.

So the question for my town attorney is this there's a motion on the table to adopt resolution A.

If we do not adopt resolution A, what happens?

The request is denied?

The variance fails.

Okay.

Thank you.

And will we need to pass then uh resolution B or are we just done?

For consistency's sake, it would be the recommendation of the board to adopt resolution B for clarity purposes.

Uh with that said, if resolution A fails and the variance doesn't pass, it's not there.

So then do we vote on resolution B based on the voting outcome of resolution?

Like if resolution A fails based on our vote, are we then in basically incentivized to say, well, we have to vote B because it failed, or do we face the same decision just again?

No, you do not have to.

I I would advise you against an inconsistency in terms of moving forward.

It would only take a majority of you to adopt resolution B.

Got it.

Thank you.

Okay.

Well, we'll get to resolution B if we have to.

We have on the table, resolution A, we have uh uh a motion by Dr.

Wortman.

Who was the second?

We have a second.

And uh I think we can take a vote.

If everyone is okay, is everyone ready to vote?

Yes.

Okay.

The question is.

The question whether to adopt resolution.

Yeah, the question is whether to adopt resolution A.

Uh Ms.

Harrell, can you please take the vote on that?

Uh James Bartow.

Uh yes.

Emilio Garza?

Yes.

Alan Fishkin?

Yes.

Joe Weiner?

Yes.

Thomas Wortman?

Aye.

Tom Grasty.

No.

So if I did my counting right, we have five in the affirmation and one in the negative.

And if uh a previous conversation's whole would do not have unanimous vote, so resolution A would not pass.

Um would you, as the town council, uh is the town uh attorney like us to vote on B?

I would prefer not to if we don't have to.

If we reach conclusion with this, I'd like to end the hearing.

Um the preference is that variance matters be adopted or resolved in a written decision by not uh holding a vote on resolution B.

Um you would not be issuing a written decision.

Uh with that said, um if you were to if the board hypothetically were to deny B, then you don't have written either way.

Um and then I would suggest to this panel a resolution from the floor, perhaps, to draft a resolution or variance decision consistent with the votes of this body here tonight is what I would suggest in that case.

You you are not limited to resolutions A and B.

You could do your own resolution to reflect something consistent with the body of the vote of this body.

And would would you recommend that that be done after we take a vote on B?

Or do we have the option to do that prior to B?

You can do what you would like to do, depending on if any members of this board would like to make a motion.

Okay.

So I will entertain a motion to adopt resolution B.

Sure, I'll move to adopt resolution B, but before uh before anybody seconds that we so for questions for the town attorney.

So for the sake of mathematics, there are seven members on the board.

There are six six of us here tonight, right?

There are eight members on the board.

Well, one is recused.

That's right.

Seven.

Correct.

Yes.

And six votes out of the five votes out of that seven is not enough to pass the resolution, correct?

Correct.

Okay.

It's not enough to correct uh pass the resolution granting the variance.

Understood.

But I think he did say it is enough to pass the resolution denying.

Well then I second the motion.

So we have uh a motion and a second to uh vote on resolution.

Sorry.

We have a uh a motion from uh a motion was was was filed and and seconded to uh vote on resolution B, which would uh instruct staff to draft an ordinance to uh I'm sorry, to to draft an order to deny the variance.

Um Ms.

Harrell, would you please take the roll?

Uh James Barto?

Uh no.

Emilio Garza?

No.

Alan Fishkin?

No.

Joe Weiner?

No.

Thomas Wortman?

No.

Tom Grastey?

Yes.

Okay.

So we have taken the vote.

Five and the negative.

One in the affirmative.

My understanding is that this resolution B has passed.

Resolution A was denied.

When you say passed, you mean denied for resolution B.

Is that correct?

We did not vote to pass resolution B.

That is what I meant to say.

Right.

At this time, if there were someone on the board who were willing to make a motion that staff issue a decision consistent with the uh stating that the variance fails, reflecting the vote for resolution A, that would be appropriate.

Is it required?

And would it clarify matters for the town?

It would clarify matters for the town.

Okay.

So moved.

Second.

Okay.

So we have a first and a second.

Mr.

Baker, tell tell tell me what we are again what we are voting on, so I've got it clear.

And do we need to present that resolution that we're voting on before we vote on it?

It can be done verbally.

What I was stating was if staff wanted to uh excuse me, if this board wanted to grant a resolution directing staff to issue a decision on the variance reflecting the vote stated in resolution A.

Okay.

That motion failed.

Yeah, it would it did fail.

And so it would be a decision reflecting that the variance vote failed, but we would at least be issuing a written decision uh for this body and for the applicants.

Why would you write an order that says that resolution B.

Well, I'm advising this board here today.

Um they can make the motions which they would like to make.

Um could we write uh a resolution or an order basically saying that both failed?

I I don't see any utility in that beyond what's already happened and is reflected in this record.

Okay, thank you.

Yeah, I would uh that's a great question, but I would really recommend that if if he's telling us this is going to clarify and this clears things, I think we should take that directive.

Sounds good.

But it would did we did we got our first and second, I think, to to pass this or to to vote on this.

And if I've got it correct, the we are voting on the board directing staff uh to issue a decision on the vote uh that was stated in resolution A.

Did I get that correct?

Yes.

Okay.

So that is what we are voting on, and if we vote in the affirmative, what have we effectively said?

Just so everyone is clear.

Rendering this decision to writing.

Rendering the decision to writing, which will affirm resolution A's outcome.

It will reflect and recite the vote for that happened with regard to resolution A.

Um is everyone clear on what we're voting on?

A would be considered failed.

Yes.

That's my understanding.

Right.

Um Ms.

Harold, would you like to call the uh roll?

James Bartow?

Uh yes.

Emilio Garza?

Yes.

Alan Fishkin.

Yes.

Joe Miner?

Yes.

Thomas Wortman?

Aye.

Tom Grasti?

Yes.

So the resolu that motion passes.

Uh the board, as we've stated, has directed the staff.

Are you all clear on what you've been directed to do?

Very good.

Um I think this concludes this evening's proceedings.

I want to thank uh Mr.

Ghosh and all of the elders for coming tonight.

Um I appreciate you showing up and voicing your concerns and your opinions, and um.

If this wasn't the outcome which you assert which you wanted, and I have an assumption that it's not, um I'm sorry.

Um with that, I will adjourn tonight's board.