September 8, 2005

Council Grants Variance To Allow Brush Property to be Considered For Rezoning

It took a little less than two hours, but ultimately the Memphis City Council, sitting as the city’s board of adjustment, voted 5-0 to grant a variance to Brian and Cindy Brush. The building permit variance ultimately may allow the couple to place a modular home on their property at 222 Watkins Street.

The property issue has been a point of contention for several months.

Under current city law, a property owner is required to secure written permission from all adjoining property owners before placing a mobile home on a site within city limits.

The Brushes had initially requested a variance from that ordinance after they were unable to obtain all of the required signatures.

That variance was approved at the August 4th city council meeting but was rescinded on August 8th when the city learned it is required to hold a public hearing and offer 15 days notice of the meeting prior to granting a variance.

The issue was slated for a public hearing September 1 held prior to the city council meeting. A number of citizens spoke at the meeting to address the issue.

Brian Brush addressed the board to open the hearing, asking the council to consider granting him the variance to allow him to replace his deteriorating home with a new modular home.

“That house was built in 1890, and it has served its purpose,” Brush said of existing property.

He announced plans to place a 28x60 manufactured home on a block foundation on a cement pad on the existing site of the current residence at the address.

Kim Nicoli, an adjoining property owner testified that she was in opposition to the move stating she was concerned about the impact the change would have on her own property.

Nicoli noted that she was concerned that the council had initially approved the variance without a public hearing.

“You made a decision based on one side of the story,” she said pointing out that the council had granted the variance illegally on August 4th. “The Brushs relied on that variance and began tearing down their house.”

She went on to question whether the September 1 hearing was technically even legal, pointing to an ordinance that required notification via certified mail of all neighbors.

The two sides debated which ordinance the issue was governed by, ultimately agreeing to disagree.

Nicoli believes the issue is a special use permit, which would be governed by ordinance 405.460 and would require more strict notification guidelines. Under her interpretation, all property owners within 185 feet of the Brush property should have received notification by certified mail regarding the issue and should have received similar notification of the hearing.

City Attorney David Peppard noted he believed this was not a rule change but a variance from the rule under ordinance 405.230 and that the city had met its requirements of publishing a notice in the newspaper 15 days prior to the hearing.

Nicoli contended, regardless of the interpretation, that the issue had been misrepresented to the public and she had wrongly been singled out as the lone individual in opposition to the variance.

“You were incorrect to say that one person stood in the way of this,” Nicoli stated.

She noted that there are at least 12 property owners adjoining the Brush site and stated that seven of the 12 had been notified of the hearing and had not given their permission to allow the mobile home to be placed next to their property.

A letter was read from Robin Ahland, an adjoining property owner, stating her opposition to the variance. Another property owner, Jerry Hyde, also was in attendance at the meeting and stated his opposition.

Nicoli presented a list of adjoining landowners, which included 12 owners of the seven adjacent properties. The list stated only five of the 12 property owners had approved the issue.

Jack Delaney, a certified appraiser, testified at the hearing, indicating that in his opinion mobile homes have a negative impact on the value of adjoining properties.

Delaney indicated, that despite the fact the new modular home proposed by the Brushes would be an improvement to the old house currently at the site, it still would have a negative impact on the values of the adjacent homes.

The point was debated by a number of residents in attendance at the hearing.

“I have pictures of 60 mobile homes and manufactured houses in the city limits, and I would have had more but I only had two cameras,” Brush said as he handed out pictures of the sites.

Brush indicated that a representative from the manufactured home industry was unable to attend the meeting to debate the property value issue.

He also questioned why a modular home is prevented by the ordinance, which specifically states mobile home.

Peppard indicated that under current city law, any home that is designed to be transported after fabrication on its own wheels, flat bed, other trailers or detached wheels, is considered a mobile home under the ordinance.

The council members indicated it is their intention to review the ordinance and to redefine mobile home so that the law would not prohibit manufactured homes.

Alderman Lucas Remley stated the council had acted on the variance believing it would better the community.

“When this came up, it appeared to be a no-brainer,” Remley said. Who would object? It’s making the neighborhood better right?”

He questioned why the hearing was focusing on splitting hairs over ordinances and instead was not working toward changing the law so that it would not discourage prospective housing upgrades.

“Right now the way the law reads, I couldn’t build a $350,000 WICK [manufactured] home next to you without all my neighbors permission,” Remley said. “We have to redefine mobile home in the code book.”

Nicoli responded, noting that in her opinion a variance was simply disregarding the law.

“Then change the ordinance, but don’t pick and choose who you apply the law to,” Nicoli stated. “If you are going to override the ordinance in this instance, then you have to override it every single time, even if all the neighbors refuse to sign.”

Alderman Teresa Skinner stated the council was not attempting to disregard the law. She stated her efforts were simply aimed at allowing nice homes in the city.

Alderman Ron Gardner stated he was in favor of the variance, noting he believed that the modular home would in fact raise the property value of the neighborhood. He stated constituents had voted him into office with the duty of improving the community, which he believed this variance would do.

Nicoli warned that the city was establishing a precedent by allowing a variance.

“If that’s how you feel, then change the ordinance,” she said. “But you can’t review case by case and say you’re worthy and you’re not worthy. Unless you are going to allow anyone to place a mobile home anywhere in the city limits, my question is are you going to follow your own law?”

Alderman William Reckenberg moved, and Skinner seconded a motion to issue a variance to Brian and Cindy Brush at 222 Watkins Street. The four aldermen and the Mayor Mike Stone, acting jointly as the city board of adjustment, approved the variance.

The paperwork will now allow Brian and Cindy Brush to apply for rezoning of the property to MA, which designates the property as zone for a mobile home. Notice will be provided and a public hearing will be held on the rezoning issue at later date.

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