Madison approves 2nd variance to ridge top setback building as county forms focus group

MARSHALL - The Madison County Board of Adjustment approved a second variance application to its 50-foot setback requirement for building on protected ridges, but this Flat Branch Drive project caused the county to change its building application after a misstep.

In its Jan. 22 meeting, the Board of Adjustment deliberated for nearly three hours before voting to approve a variance to Matt Nowicki, who owns property at 82 Walnut Ridge, in the Seven Glens development on the county line in Weaverville.

In that project, the board issued Nowicki a variance for a reduction in the Mountain Ridge Protection Ordinance's setback from 50 feet to a range of 25-45 feet. At the time of the application, Nowicki said he planned to build a home, and had already incurred more than $100,000 in construction costs after laying footers on the property.

As such, the board wrestled with a number of the criteria, including the issue of whether Nowicki's hardship was self created.

But according to Development Services Director Brad Guth, one of the extenuating circumstances that led Nowicki to request the variance was because the county inspections department granted Nowicki permits.

A similar scenario played out in the Board of Adjustment's April 22 meeting, in which the board deliberated for more than five hours about whether to approve a variance for a property at 1496 Flat Branch Drive.

Monica Toole is the property owner. Anthony Willis is Toole's contractor. Willis, the applicant, was represented by Larry Leake.

Chris and Tahne Flaherty live nearby in the East Fork community.

According to Chris Flaherty, their current East Fork home is their dream home, adding that they searched for roughly two years to find the perfect home for viewing sunsets and moonsets in the mountains.

But with the construction of the 1496 Flat Branch Drive home, the Flahertys said those majestic views along the mountain ridges, which were protected by county ordinance before they moved here, are now marred by the new construction.

Chris Flaherty told The News-Record & Sentinel the family will likely sell their home as a result of the board's vote April 22.

The Flahertys, as well as their neighbors, Barbara Pautz and Van Hutchins, applied to be granted standing to participate in the quasi-judicial hearing. But all four, as well as a separate applicant, Walnut resident Laura McCune, were denied standing in separate votes by the board.

"I don't know if we should allow for emotional damages," Board Chair Robert Briggs said.

Vice Chair Hart Barnhill said he felt like the Flahertys had alleged special damages, and voted to approve granting special standing to Tahne Flaherty.

Background

According to Guth, the project came to the attention of the county after Chris Flaherty alerted the development services department about it being in violation of the county's Mountain Ridge Protection Ordinance, a 2010 ordinance that mandates a 50-foot setback requirement for building at elevations 3,000 feet or higher.

Madison County is the lone county in the state with a setback requirement for building on ridges. In December, the Madison County Planning Board voted to scrap the setback requirement after developer Russell Blevins applied to have the requirement removed, as Blevins said he planned to build a cabin on his property for his children and grandchildren, and that building on the top of the ridge affords him the most stable soil.

The next step is for the Madison County Board of Commissioners to vote on whether to remove the setback requirement or keep it in place.

More: 1st ridge top variance approved Madison board approves variance in first request since recommendation to scrap setback

More: Board votes to nix setback Madison planning board votes to nix 50-foot setback requirement; plans ridge focus group

On April 16, Guth said he was told the county had formed a ridge top focus group/committee for the purposes of determining the best option moving forward.

The reason the 1496 Flat Branch Drive project came before the Board of Adjustment was because the county overlooked the fact the property, which sits at roughly 3,800 feet according to Willis, would be subject to the Mountain Ridge Protection Ordinance, according to Guth.

"We want to be protect our land, the beauty it has, the lights of the neighbors, but there are circumstances which arise where people unintentionally violate, and the property's made worthless if they can't get a variance," Leake said.

"That's what's happened here."

Joshua Jenkins, a qualifying agent working with Willis, said he was the one who took the application to the county inspections department.

Jenkins said he did not check the box for "protected ridge," and that the box would have been checked by a member of the Madison County inspections department.

"I generally take a permit down there for any stuff to get their take on that application - is it R/A, is it in a floodplain, is it on a protected ridge. This is the first time I've dealt with one of those. The Madison County inspections department are the experts on that," Jenkins said.

In response to questioning from Barnhill, Guth said the building permit application was changed in January to include the home site's elevation. As such, the onus is no longer on the applicant to determine ridge top regulations.

"We changed it for that purpose to make sure that we followed up to confirm the elevation of the properties," Guth said, adding that Flaherty informed the county about the mix-up in October 2023.

Jenkins said he submitted the zoning application in 2022.

Board attorney John Noor reminded the board of its criteria for granting a variance, which includes undue hardship, peculiarity to the parcel, the result is not due to the fault of the applicant.

"I think moving a house off of the ridge onto a steeper slope absolutely violates the nature of the ordinance," Barnhill said. "The fact that you move a house even 10 feet down the slope, you're going to need retaining walls, you're going to need a foundation."

Willis estimated that Toole had spent roughly $600,000 on the Flat Branch Drive home.

Ultimately, as with the Seven Glens home, the board felt that the applicant would be given undue hardship if they were not granted the variance.

Johnny Casey has covered Madison County for The Citizen Times and The News-Record & Sentinel for nearly three years. He earned a first-place award in beat reporting in the 2023 North Carolina Press Association awards. He can be reached at 828-210-6074 or jcasey@newsrecordandsentinal.com.

This article originally appeared on Asheville Citizen Times: Madison County approves 2nd variance to ridge top setback building