ONARCHITECTURE- Twilight zoning: BZA procedure trumps reality

November 30, 1999: Lucile Branham Watson's ashes are scattered in the pasture behind the Timberlake-Branham house by her daughter, Jane Leitch. "We absolutely thought that the entire seven acres would always be protected," says Dorothy Hesselton, Leitch's cousin.
PHOTO COURTESY JANE LEITCH

A hotly contested recent meeting of the Board of Zoning Appeals was attended by a crowd of Woolen Mills residents, several lawyers, and one elephant. That elephant was the designation by City Council back in 1993 that the Timberlake-Branham property, a parcel that includes an 1890 farmhouse (now home to the Mary Williams Senior Center), was historic and should be protected.

As former City Councilor and Woolen Mills resident Kay Slaughter recalled in a March letter, when Council voted for the designation, they considered the entire seven-acre property historic, not just the portion where the house stands. However, when scrap-yard owner and BAR member Preston Coiner, who bought the property in 1996, proposed building the Woolen Mills Self Storage facility in 2000, City staff appears to have overlooked the property's historic status.

The issue didn't erupt until late last year after Coiner proposed another development, this time a 12-14 unit Planned Unit Development on the remaining property. This time, however, neighbors acknowledged the elephant. In fact, in e-mails to Coiner, one City planner wondered how Coiner erected his Woolen Mills Self-Storage– an apparently lucrative business in a largely residential neighborhood– without BAR review.

It turned out that, according to zoning administrator Read Broadhead, it was Coiner's subdivision of the property and the City's failure to update the zoning maps that allowed the giant pachyderm to lumber through Woolen Mills unnoticed.

"Everyone agrees a mistake was made," said Erik Wilke, lawyer for some Woolen Mills residents. "It's a typo mistake; why not fix it?"

However, in an apparent first for this body, the BZA hired a lawyer of its own to sort out its role in the controversy. And the BZA's lawyer pushed the matter over to Council.

"If a zoning mistake was made, the BZA does not have the authority to fix it," said the lawyer, Anne Cosby, during the May 17 meeting. "The BZA has no authority to go behind City Council."

"I have to agree... reluctantly," said BZA chair Kevin O'Halloran, giving the evening's only nod to the elephant, as public comment was not allowed.

Of course, Cosby's recommendations couldn't have been better news for Coiner's lawyer, Fred Payne, the only one in the room insisting there was no elephant, as he likened the arguments surrounding the case to "shooting woodcocks on a windy day, because the target keeps moving." He agreed with Cosby that the BZA had no authority to do anything.

"The statement that everyone agrees a mistake was made is absolutely wrong," said Payne, responding to Wilke. "We don't agree with that at all." However, moments later Payne said, "The only mistake that was made was that the city assessor didn't mark the parcel." 

That's something the decedents of Lucile Branham Watson, who owned the property when it was a farm, might contest. When Branham Watson's ashes were scattered on the property by her daughter Jane Leitch in 1999, it was assumed the property was protected.  "We absolutely thought that the entire seven acres would always be protected," says Dorothy Hesselton, Leitch's cousin, who says she spent her growing up years on the farm. "That's what my aunt had always wanted done with the property. If fact, she had hoped there would be a walking park there."  

"We're considering our options," says residents' lawyer Wilke, citing "pretty good evidence" that City Council wanted to protect the whole property.  "I think we'd have a pretty good shot it circuit court."

Still, Wilke admits a case like that could be expensive for Woolen Mills residents, and it's questionable what exactly would be gained. Another idea, says Wilke, is to petition City Council and see if they might be interested in correcting their mistake.

As the evidence suggests, its unlikely that Coiner would have been able to build his Woolen Mill Self Storage facility if the project had gone under BAR review. With 525 storage units that rent for $70 to $155 per month, it's a business that possibly generates between $40,000 and $70,000 a month in gross income.

Local real estate wags note that such storage parks make an excellent "place holder" for future development, as they can be quickly dismantled to make way for more ambitious developments. In the meantime, Coiner has a plan to build a PUD development on the land directly behind the Timberlake-Branham property, and as a result of the recent BZA determination, he will not be required to face the BAR.

As for the Woolen Mills residents, they have more late-night meetings and a potentially expensive court case to look forward to.

While an April 24 Daily Progress editorial let Coiner off the hook because he "wasn't the one who made the error," he certainly seems to be the one benefiting the most from it. 

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