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Water utility offers 'help' and changes zoning requirements
Feb 27, 2006 12:00 am
February 17, 2006
Sharon Lister never expected to be so close to her new neighbors.
But when construction began on a roughly 4,000-square-foot, two-story house just behind Lister's home in West Wilson County's Cambridge Crossing subdivision in summer 2005, she says she noticed almost immediately the new home seemed a bit too close to her back door.
"We believed it was much too close to our property line, and … when I found out there was supposed to be a 40-foot setback, I knew there was a problem," Lister said.
Under Wilson County zoning regulations, setback requirements for properties zoned R-1 (rural residential) dictate a structure must be at least 40 feet from side, front and rear property lines.
According to Lister's measurements, which she says were later confirmed by Wilson County Planner Tom Brashear and County Building Inspector Kathy Dedmon, the home being built behind her property failed to meet the established rear-setback requirements.
"We knew it was encroaching," she said.
Still, as of this week, construction on the new home in Magnolia Estates subdivision continued with the aid of a public utility that agreed to "help" the home builder – Mt. Juliet-based Landmark Homes – bring the $300,000-plus home into compliance with setback regulations.
The Water and Wastewater Authority of Wilson County agreed to use its power to make the Landmark home's lone septic tank a "public" sewer, therefore reducing the county's setback requirements drastically and cutting county lot-size requirements nearly in half.
It is a tactic water authority officials say they may continue to use in the future, and one that could touch off a debate about the definition of public sewers which could impact planning and zoning statewide.
In August, a representative from Landmark Homes appeared before the Wilson County Board of Zoning Appeals (BoZA) to request a variance permitting the new home on Lot 15 of Magnolia Estates to exceed the rear-setback requirements.
That request was denied, said Brashear, who serves as an advisor to the board.
"We recommended denial based on the fact that … it was a newer lot of record, and there was no hardship that was not self-imposed," the county planner said. "Therefore, we had no ability to really grant the variance or to recommend approval of a variance."
After BoZA voted against the request, Lister said she believed work on the house would cease until the setback issue was resolved. However, construction suddenly resumed last month though the home still did not meet the 40-foot setback requirement.
Concerned, Lister penned a letter to Brashear and Wilson County BoZA Chairman W.J. "Mac" McCluskey on Jan. 11.
"This house is blatantly non-conforming, and I have voiced my reasons and my objections to the current structure of this house before the Board of Zoning Appeals. Since that (Aug. 2005) variance denial, I have not received any indication from the Board that the status of their previous decision has changed or been modified," Lister wrote. "I am questioning why significant work – work that will now enable this house to be completed in its current non-conforming state – is allowed to proceed."
Two days later, Lister received a written response from Dedmon stating the plat for Lot 15 had been amended Jan. 5, when the Water and Wastewater Authority of Wilson County (WWAWC) agreed to act as the "public" sewer service provider for the new home.
As Lot 15 was then technically served by a public sanitary sewer system, Dedmon explained the rear-setback requirement was no longer 40, but 30 feet.
"Each lot served by a public water and sanitary sewer system there shall have a minimum lot area of not less than 15,000-square-feet … For principal structures, served by sanitary sewer, there shall be a rear yard of not less than thirty feet," Dedmon wrote. "A survey of the property was brought in to this office, and it meets all county requirements. They were given permission to proceed with building the home."
When served by a standard septic tank rather than public sanitary sewer, the minimum lot area for R-1 property is 40,000-square-feet, according to county zoning regulations.
"All we're trying to do is help a guy out."
With construction again in full swing on Lot 15, the Tennessee Department of Environment and Conservation Division of Ground Water Protection took action.
In January 2004, according to TDEC's Britton Dotson, the state signed the original plat for Magnolia Estates. A year later, a builder applied to construct a standard septic tank sewage disposal system on Lot 15, and TDEC issued a permit for the new, four-bedroom home.
When state officials learned the amended plat, signed by WWAWC Executive Director Eddie Harris, had been filed, the permit issued in 2004 was rescinded.
"In essence, when they recorded that amended plat, that invalidated our previous approval of that lot," Dotson said.
Despite the lack of a state permit, however, the WWAWC's decision to oversee the installation and maintenance of the septic tank on Lot 15 as a "public sewer" essentially negated the state's role in the process, he continued.
"Whenever that new plat was recorded, we ceased to have a role in that lot, because we don't have statutory authority where public sewer is available," Dotson said. "But, what they intended to do was to put in the septic system, and then call it a public sewer system and, in the end result, be able to qualify for the closer building setback."
Harris, who said Thursday a septic system had yet to be installed on Lot 15, said Dotson's assessment was on point.
"The reason we were asked to manage this sewer system was to make that lot be on public sewer. When we manage it, that makes it a public sewer system. That also changes the setback lines on the lot," Harris said, adding Landmark Homes had requested the WWAWC maintain the septic system on Lot 15. "All we're trying to do is help a guy out. Whoever laid the house out made a mistake, and we're trying to help them correct the mistake."
Harris added the utility has never taken such action but may make similar moves in the future.
"No, sir," Harris replied when asked if the WWAWC maintained other septic tank systems in the county. "But, we're going to. We are looking at doing more."
A call to Landmark Homes of Tennessee President Gary Wisniewski was not returned Thursday. According to information available on the company's website, the home under construction on Lot 15 has been sold. A record of the property transaction had yet to be filed with the Wilson County Register of Deeds Thursday afternoon.
The Heart of the Debate
Lister, who has referred to the actions of Landmark Homes and the WWAWC as "a blatant effort to circumvent zoning requirements," plans to again address Wilson County BoZA today to ask the board to nullify the building permit for Lot 15.
"This is an insult to BoZA. They are undermining their authority," Lister said.
But the county may be unable to terminate the permit, Brashear said.
"They (WWAWC) have signed off that they are providing sewer service to the site, and until such time as they say they are not serving it, then the building inspector doesn't really have an ability to legally cease building, if you will," he said. "If she (Dedmon) does, then a court of law might throw it out."
Wilson County Attorney Mike Jennings was unavailable for comment Thursday. A call to WWAWC Attorney Robert Rochelle was not returned.
Ultimately, differences between the WWAWC's definition of a public sewer and the state's perception of what constitutes a public sewer rest at the heart of the debate, Dotson explained.
"When it says on (the plat) that public sewer is available, then basically, we're out of the picture … Their interpretation of a public sanitary sewer appeared to be a system that was managed by a public utility, whereas I think our definition, the state's definition, would come closer to a system that was designed to serve multiple households," Dotson said. "There's just a variation, I guess, in that definition."
Staff Writer Brian Harville can be reached at 444-3952 ext. 16 or by e-mail at firstname.lastname@example.org.