Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 18, 1993 TAG: 9307180087
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: MARK MORRISON STAFF WRITER
DATELINE: LENGTH: Long
The pool is off by less than 2 feet.
But that was enough for Jewel Markham to complain. She didn't want a swimming pool intruding into her back yard in the upscale Ivy Lake subdivision in Forest.
The pool does not intrude into her yard, however. It sits more than 13 feet back from her property - but violates Bedford County's 15-foot setback rule on pools and buildings.
So, Markham's neighbors, Van and Meredith Marks, asked the county Board of Zoning Appeals for an exception to the 15-foot requirement on the pool, which already was finished.
The board would not grant the exception.
What happened next has escalated into a dispute between the Board of Zoning Appeals and Board of Supervisors that could lead to a legal battle with implications beyond Bedford County.
After refusing to grant the exception, the Board of Zoning Appeals looked to the county to enforce its decision. In other words, the pool owners would have to move their pool or face a possible fine and future complications if they sell the property.
But the supervisors would not back the ruling, leaving a debate over who has the final authority to decide these kinds of zoning issues.
Is it the supervisors, who enact and enforce the setback restrictions and who spend the tax dollars to take violators to court? Or is it the Board of Zoning Appeals, which is appointed by the court specifically to mediate these boundary questions?
In the end, it may be the courts that decide.
In a series of executive sessions, the Board of Zoning Appeals decided to hire a Lynchburg lawyer, Arelia Langhorne, to prepare a lawsuit against the supervisors. The lawsuit would ask the court to require that the supervisors enforce the Board of Zoning Appeals rulings on setbacks.
A preliminary draft of the lawsuit has been sent to the supervisors, who also have discussed the matter in closed-door meetings. The lawsuit has not yet been filed with the court.
Discussions involving possible litigation are legally exempt from the state's open meeting law. However, they already have involved a seemingly bizarre expenditure of public money.
Langhorne's initial legal fees were $1,532 - and she was paid by the Board of Zoning Appeals, which gets its money from the supervisors. This means the county essentially has paid to have a lawsuit prepared against itself.
And should the lawsuit end up in court, that would mean additional legal fees for Langhorne that also would come out of the county's own pocket.
Further, if the potentially precedent-setting case is appealed to the Virginia Supreme Court, the final costs could be high. This type of action has never been taken to the state Supreme Court, according to County Attorney Johnny Overstreet.
County officials hope the conflict doesn't get that far.
In fact, the supervisors question whether the Board of Zoning Appeals has the legal authority to file such a lawsuit.
Langhorne insists the zoning board does have the authority. She said it is a "legal entity" just like a school board or the supervisors, and it can "sue and be sued."
Again, it may be the courts that ultimately decide.
However, officials all around said they hope to avoid even taking that issue before a judge. No one said they wanted to go to court.
"Certainly nobody relishes going through a legal action," said John White, the Board of Zoning Appeals chairman. "We all take that as something negative."
White downplayed the dispute.
"It's not any kind of a power struggle at all," he said.
Rather, he insists that the Board of Zoning Appeals merely wants an interpretation of what the county's enforcement duties should be.
Right now, the two boards disagree on those duties.
The Board of Zoning Appeals believes the supervisors should enforce its rulings to the letter. The supervisors believe some common sense needs to be applied, and that it would be silly to make someone move a swimming pool less than 2 feet.
"Some of them aren't worth fighting," said Montvale Supervisor Gus Saarnijoki. He said there are other questions to consider beyond the black and white of the law.
"What really is affected by it? Does it hurt the public to have this situation or doesn't it?" Saarnijoki also pointed to the potential cost of enforcing every setback violation.
At the same time, he said he understands if the Board of Zoning Appeals feels frustrated. He just questions whether it warrants a lawsuit.
"It's a tough situation to make a ruling and then have someone come along and say we're not going to enforce it. But that's the facts of life, I guess."
Stewartsville Supervisor Dale Wheeler compared the enforcement situation to speeders and state troopers. He said it would not be practical for them to stop everybody who drives over the speed limit.
"It's called picking and choosing." Wheeler said the county should have the option of "going after the big ones and forgetting the little ones."
He said the supervisors were shocked and angered at receiving a preliminary draft of the lawsuit, and he called it a "sledgehammer" approach to the issue.
"If we were having that much of a problem," Wheeler said, "I don't understand why my member didn't pick up the phone and call me."
The supervisors have discussed one option to stop the lawsuit from going any further - by taking away the Board of Zoning Appeals budget money. Said Saarnijoki: "It's kind of silly to give someone money to sue yourself."
But Chairman Tony Ware dismissed this tactic.
Instead, the supervisors hope to meet with the Board of Zoning Appeals to work out a solution "before things go too far," he said.
Yet, that didn't work once before.
White, the Board of Zoning Appeals chairman, earlier this year met with the supervisors in a closed-door meeting to voice his objections to the county's enforcement stance.
Nothing was accomplished.
White said he would meet with the supervisors again. Still, he appears ready to pursue the lawsuit. "It is a gray area, and it shouldn't stay a gray area," he said.
And if the dispute heads to court, he isn't apologizing. Legal questions about government typically get resolved by the courts, he said.
"It's just normal business."
by CNB