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No variation: BZA approves Evolve variance for 2nd time

July 1st, 2014 10:34 pm by Nathan Baker

No variation: BZA approves Evolve variance for 2nd time

Amber Floyd Lee reviews her notes as she addresses the Board of Zoning Appeals Tuesday afternoon. (Nathan Baker/Johnson City Press)

A distinct feeling of déjà vu descended on the Johnson City Municipal Building Tuesday evening, as the Zoning Board of Appeals again passed a variance from city zoning code for a Walnut Street property pegged for 216 units of multifamily apartments.

The board again voted 3-1 to exempt the Model Mill and Mize Farm & Garden Supply properties from a city parking code, functionally allowing parking spaces to be built between structures on the property and State of Franklin Road.

The variance was previously passed in March, but challenges to the notification process raised in a lawsuit filed in June prompted the property’s prospective developers to return to the board.

The legal action, filed by attorney Amber Floyd Lee against the city board and Evolve Development, the North Carolina company hoping to build the apartment complex, in-part claims signs posted at the property advertising the variance hearing did not include the reason for the variance request, nor the time and location of the meeting at which the variance would be considered, all of which are required by Johnson City Zoning Ordinance Article 15.3.3.

In approving the exemption, the majority of the board members affirmed their previous decision and again approved city Planning Department staff recommendations, saying the properties in question suffered from hardships presented by the 100-year floodplain along Brush Creek.

BZA member Jenny Lockmiller was again the lone dissenting vote, and questioned the developer’s motivations for requesting the legal exemption.

“If they’re still going to build in the floodplain once they get the variance, why would we give them a variance?” she asked. “If that’s the reason they needed it, the variance should mean that once they get that, they don’t have to build in the floodplain. It feels as if they’re just trying to get parking on State of Franklin, and that’s what they’re using.”

Lee, a member of the Southside Neighborhood Organization and a vocal opponent of the development, said the do-over of the variance was an instance of the city stepping on the toes of the Chancery Court judge who agreed to hear her suit.

“I wish we had a different outcome tonight, but that’s just the way it is sometimes,” she told the board. “I look forward to working with you in the future.”

A hearing date has not yet been set, but Lee said she intends to actively pursue it, hoping to get the BZA decision overturned.

Lee’s lawsuit also raises challenges to the legal authority of the board to grant the variance and asks the judge to reverse the decision.

Since the issue was first raised in March, Evolve’s representative, attorney Tom McKee, has contended that the allegations of the improper application of state zoning law are unfounded.

The meeting notification challenges were valid, however, so the company decided to voluntarily take the issue back to the zoning board to preemptively correct the misstep, he said.

“I apologize for having to bring you back here, this is the second time,” McKee said to the board. “But since that was a clear violation of the ordinance, we felt the best thing to do was simply re-file the matter and correct that situation — which we’ve done — and then allow the city to address the other issues that were raised about the sufficiency of the hearing.”

McKee said defending the BZA’s actions would be a task for the city, not the developer, to take up in court.

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