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ZBA upholds decision against two-lot combo

Request motivated by septic situation

POSTED: October 4, 2013 12:24 a.m.
 

A Forsyth County resident still won’t be allowed to combine lots from different subdivisions after the zoning board of appeals denied his request to overturn a planning department ruling.

The board voted 3-2, with Jim Kinsey and Ed Kroell opposed, on Tuesday to deny the appeal by Robert Windsor.

Windsor hoped to merge two other lots he owns with his home on Casaroga Drive, but the request was denied by planning director Tom Brown based on a section of the county’s unified development code.

The code states: “An existing lot line forming the boundary between two lots located within the same subdivision may be removed or eliminated.”

Two of the properties in question were platted in the Casaroga on Lanier subdivision, but another adjacent lot was shown in the Beaver Cove plat.

Windsor’s home sits on one acre on Casaroga Drive, and the other parcels total about 1.2 acres. The expansion was intended to support the septic system, according to a neighbor during the public hearing.

Phil Friduss, an attorney representing the planning department, said the code could be read only one way.

Lots platted in a subdivision must be within the same one to be eligible for combination, he said.

“You can overturn the decision if you so please, but you may only do so if Mr. Brown’s decision was clearly erroneous in interpretation, administration or enforcement,” Friduss said. “Frankly, the question of whether this is a good idea to combine these lots isn’t really before the board this evening.”

Attorney Ethan Underwood, representing Windsor, argued that Brown’s decision was an erroneous interpretation that read something into the code that isn’t there.

Georgia law favors property rights, he said, and limitations on use of property must be expressly prohibited in zoning code to be denied.

“The code section regulates only the combination of lots in the same subdivision,” he said. “The UDC says nothing about combining lots in separate subdivisions.”

Neither neighborhood has a homeowners association or covenants any longer, though both were platted subdivisions, Underwood added.

Board member Jim Kinsey agreed with Underwood’s reasoning, making the first motion to overturn Brown’s administrative decision.

“Laws do have to be clear,” he said. “We can’t just make them up as we go.”

Member Debra Bradley said the question wasn’t the right of the property owner, but whether Brown acted correctly within his authority, which she felt he had.

Chairman Jack Shoemake agreed with Bradley, making the counter motion to uphold the planning department’s determination.

“People have property rights, but it’s not within our power to rewrite the UDC if it is specific,” Shoemake said, “and to me, it is specific.”

Several of Windsor’s neighbors cheered after the vote, though Shoemake assured them it was a code interpretation and not “a popularity contest.”

The neighbors opposed the combination of lots, which they said would allow septic to be pumped along Casaroga Drive past their wells.

Windsor first applied for the minor plat in 2011, but agreed to stay the request until litigation with neighbors was settled.

In March, that suit about the septic field concluded, and in April the county denied the combination of lots.

Windsor bought the Beaver Cove lot in 2010 after discussions with the county on the need to increase lot size, according to Underwood.

Underwood added that Windsor bought the other parcels he wanted to combine in 2011 to increase the size of the septic field.

 

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