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Magnolia Lot 15 headed back to court
Dec 18, 2006 12:00 am
A homebuilder's request to allow occupancy of a $450,000 house in Mt. Juliet is going back to court Friday.
Plaintiff Landmark Homes is seeking a certificate of occupancy for the house, which as it stands violates county zoning regulations.
Debate over the house, located on Lot 15 in the Magnolia Estates subdivision, began more than a year ago but reached its pinnacle in January when officials determined the structure did not comply with county zoning regulations which mandated the home be at least 40 feet from the rear property line.
In August 2005, Mt. Juliet-based Landmark Homes of Tennessee requested a setback variance from the Wilson County Board of Zoning Appeals. That request was ultimately denied by BoZA members.
Shortly thereafter, the homebuilder requested the Water and Wastewater Authority of Wilson County declare the home's septic tank a public sewer – a change which automatically brought the home back into compliance with zoning regulations. The county's setback requirement for structures served by public sewer is 30 feet.
A contract between Landmark Homes and the Water and Wastewater Authority dictates that, for a monthly fee, the Authority would service the septic tank on the property – in their eyes, constituting a public sewer.
The Tennessee Department of Environment and Conservation later questioned the water authority's power to make such a declaration.
In a Feb. 13, 2006 letter to Mt. Juliet City Planner Bobby Franklin, Division of Groundwater Protection Director Kent Taylor asserted Water and Wastewater Authority Director Eddie Harris – who signed the amended plat – did not have the authority to approve such a change in plans.
Taylor stated all plats must be approved by the TDEC commissioner unless they fall under certain provisions in state law.
"In our view, the purpose of that signature is to show responsibility for operation and maintenance of certain systems," Taylor wrote. "It is not for approval of the plat."
At TDEC's request, Mt. Juliet rescinded its approval of the home's plans, and on March 6, the Wilson County Building Inspector's office issued a stop-work order.
In April, Chancellor C.K. Smith overturned the stop-work order, allowing Landmark Homes to proceed with construction "at their own risk." Upon the completion of the home's construction, however, Wilson County Building Inspector Kathy Dedmon noted she would be unable to issue a certificate of occupancy for the home as it remained in violation of the local zoning ordinance.
Specifically, the suit – which names the Mt. Juliet Regional Planning Commission, Wilson County and the Water and Wastewater Authority as defendants – asks Circuit Court Judge John Wootten to declare the septic tank on Lot 15 to be a public sewer because it would be serviced by the Water and Wastewater Authority.
One of the primary legal questions is whether a single septic tank can be declared a public sewer. State law seems to be somewhat contradictory on this, as spelled out in a report by County Planner Tom Brashear.
He points out there are two different definitions of public sewer system.
The first definition specifically states that a public sewer system "does not include systems for private residences or dwellings."
But the second definition states that any sanitation system "owned and operated by a municipality, utility district or other legally constituted agencies of government" constitutes a public sewer system.
While somewhat similarly worded, Brashear stated in his report that the second definition "can be interpreted in a number of different ways that may per chance include any maintained sewer system being viewed as a public sewerage system."
The two definitions are "different, at any rate," Brashear said.
Because the Wilson County Water and Wastewater Authority has reached an agreement with the would-be occupants of the home to service the septic tank, under one interpretation of the law this could constitute a public sewer system.
The property is zoned R-1 (rural residential). For a lot using a septic tank the minimum setback from the rear of the property is 40 feet. The house encroaches a total of about nine feet past that 40-foot barrier.
However, homes on public sewer system only have to be 30 feet from that property line. If the septic system were to be declared a public sewer, the home would be in compliance with county zoning laws – meaning the family that has ordered the home could receive a certificate of occupancy and move into the house.
The ultimate goal is to bring the house into compliance with county zoning regulations one way or another, Brashear said.
"The crux of the court case is they would like to get the builder released from the need to meet any additional threshold and allow the house to receive a certificate of occupancy where the house lays," Brashear said, "… regardless of what type of sewer system it's ultimately permitted on."
Franklin said it was "common sense" that a single septic tank – regardless of who services it – is not the same thing as a public sewer.
"I think reality has to weigh in here sometimes," Franklin said. "A septic tank in your backyard isn't a public sewer if you can't hook into it, is it?"
Reached by telephone Wednesday, Water and Wastewater Authority Attorney Bob Rochelle declined comment, saying he preferred not to speak publicly about pending litigation.
Dodging zoning or providing a public service?
Depending on who you ask, the actions of the Water and Wastewater Authority of Wilson County constitute an attempt to get around county zoning ordinances.
And while Harris could not be reached for comment Wednesday, a letter Harris published in The Lebanon Democrat on March 10 penned by Harris characterizes the Authority's involvement as providing "additional protection to the owners, the neighborhood and to the environment."
Harris stated that septic tank failure is an emerging problem in Wilson County, and that the Authority's goal is to "find a way to solve the failing septic tank problem in Wilson County.
"Operating and maintaining a new septic tank system is a good starting point with slight risk to the WWA."
Nearby homeowners Sharon Lister and Gary Boyce, whose home in Cambridge Crossings backs up to Lot 15, believe it's an effort to circumvent zoning laws in Wilson County. Lister and Boyce have led the charge against Lot 15 for more than a year.
"They are, in essence, changing zoning, and they have no authority to change zoning," Lister said. "The Planning Commission and the Board of Zoning Appeals are the bodies that decide zoning in Wilson County."
Lister took aim at a statement Harris made to the Democrat, in which he said Landmark Homes came to him for assistance.
"All we're trying to do is help a guy out," Harris said earlier this year. "Whoever laid the house out made a mistake, and we're trying to help them correct the mistake."
But Lister said allowing this precedent constitutes allowing spot zoning wherever the Authority decides to "help" another homebuilder.
"On a pick and choose basis, the Water Authority can help any builder," Lister said. "… It totally alters zoning."
Boyce said another zoning aspect could ultimately be affected by this case. Single lots with septic systems must be a minimum of 40,000 square feet, but those served by sewer need only have 25,000 square feet per lot.
"The setback is the issue in this particular case," Boyce said. "If they say they can service anybody's septic system, there is no more zoning in Wilson County. … There is no more R-1 rural residential in Wilson County. No one would do it. If anyone has a problem, you go see the Water and Wastewater Authority and your zoning changes."
But in his letter to the Democrat, Harris said this was not the Authority's intent.
"The effect of [the agreement between Landmark Homes and the Authority] does not make any changes in any county ordinance," Harris wrote. "It does not affect the size or setback requirements for any other lots in the subdivision."
The case will be heard at 9 a.m. Friday.
Staff Writer Jason Cox can be reached at 444-3952 ext. 45 or by e-mail at email@example.com.