Jackson Board of Adjustment
June 17, 2015
UNOFFICIAL UNTIL APPROVED
Draft June 18, 2015
Members in Attendance: Frank Benesh, David Matesky, Dave Mason. The Alternate attending the meeting was James Gleason. Hank Benesh is the videographer; Martha D. Tobin is the Recording Secretary.
Chairman Frank Benesh called the meeting to order at 7:03 p.m. after establishing that a quorum was present.
Approve the Minutes of April 15, 2015 The minutes were tabled as the members were not prepared to approve them tonight.
Consideration of Motion for Rehearing – Tin Mine Road - Owner Caldwell, Map V10, Lot 33-A Chairman Benesh will briefly go through the document presented by the Caldwell’s attorney, Chris Meier, and the rationale presented for consideration.
Chris states the substantial justice argument should consider the loss to the property owner as the cost to remove the porch and roof versus no harm to the public; that loss is significant for the owner. Chairman Benesh noted it’s inappropriate to count the removal of the porch as it was illegally constructed; the appropriate comparison would be building the porch from scratch.
The second argument is regarding the orientation of the house; the Board dealt with that in discussion.
Chris notes the Board made an agreement that the house looked better with the porch. The Board made no determination about this and Chairman Benesh is not sure it’s relevant.
Chris argues that the Board proceeded with different members and the applicant was not given the opportunity to proceed with the same members. Chairman Benesh noted the applicant doesn’t have the ability to request the same members and it wouldn’t have been possible since one of the original members resigned. The new members had the opportunity to review the video and Minutes.
Chris states that members were provided with information outside a meeting. Chairman Benesh noted there was a meeting with the Board’s attorney that didn’t need to be noticed; this isn’t relevant.
Regarding Hardship, Chairman Benesh feels that Chris is reiterating arguments that have already been made by the applicant and there is nothing new.
Regarding the disability accommodation, Chris makes the argument that the Board is misinterpreting the law. Chairman Benesh noted it is not absolutely necessary for the Board to find the porch is a reasonable accommodation. There is a disability but there are ways to provide a ramp that provide adequate, and the same level of, access as the illegally constructed porch they have now. Dave agrees the Caldwells can provide access without violating the setback; it’s not necessary to waive the Zoning Ordinance to make reasonable accommodations. The Board members made four separate site visits to the land and looked at the feasibility of building the ramp legally.
On page 3 Chris argues the Board voted on March 25th that the applicant met the Substantial Justice prong and then on April 15th the Board found that it did not meet that prong. Chairman Benesh noted this is because between March 25th and April 15th the Board made site visits and got more information including the redesign from the applicant. On April 15th there were different members attending that meeting with different views as well as having the opportunity to deliberate more. At the April 15th meeting the discussion about Substantial Justice was more focused on the cost of the loss to the individual to not have the ramp in the position they want it versus other ways to legally provide one. The Board found there was no loss to the individual to
have the ramp in a compliant manner.
David noted the memo submitted by Chris doesn’t present anything new; it’s just rehashing previous discussions. There may be some points of law he tried to make which the Board’s attorney disagrees with. This was discussed during a separate meeting.
David Matesky, seconded by Dave Mason, made a motion that there is no new evidence presented to indicate the Board was in error in denying the variance in accordance with the law. The motion passed unanimously (Benesh, Mason, Matesky, Gleason).
Chairman Benesh noted there is no further business for this evening; there may be another variance application and the Board will need to meet in the next month or so to approve the Minutes.
Dave Mason, seconded by David Matesky, made a motion to adjourn at 7:13 p.m. The motion passed unanimously (Benesh, Mason, Matesky, Gleason).
Respectfully submitted by:
Martha D. Tobin
Recording Secretary
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