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If

it looks like a deck, and walks like a deck … one might conclude it’s a deck.

Oriental’s Town Board used more complex language Tuesday night, but that was the upshot of the Board’s unanimous vote to deny a Special Use Permit for a deck at an Oriental West condo building on lower Midyette Street. The deck had been widened so that it extended in to the 7 foot setback from a neighbor’s property line, a violation of Oriental’s Growth Management Ordinance.

Grace Evans listens as Bob Baskervill addresses the Oriental Town Board regarding a deck at a condo he and his wife rent out at Oriental West on lower Midyette Street. Evans lives next door and complained that during Hurricane Irene repairs, the deck was improperly moved closer to her property line. That was over 2 years ago. The Town Board vote Tuesday denied a retroactive Special Use Permit to the condo association.

The Town Board vote came after more than an hour of public hearing and discussion. With the SUP denied, the widened deck remains out of compliance with Oriental’s Growth Management Ordinance. (The GMO sets standards on development issues, such as leaving adequate space between structures and a neighbor’s property.)

Oriental West condo association president Bill Minchin and Missy and Bob Baskervill, who own one of the condos in question, spoke before the Board Tuesday night. The Baskervills claimed that the widened part of the deck area, — three feet closer to neighbor Grace Evans’ property line than it used to be — and at the same plane as the rest of the deck was not actually deck.

Instead, they said, that was a walkway.

On Tuesday night – and in papers filed earlier – the Baskervills and condo owners association argued that for years there had been a wooden walkway, close to ground level, sitting in the setback area. (Because it was there before the GMO was passed a decade and a half ago, the walkway at ground level in the setback area had been grandfathered in as a non-conforming use.)

Missy Baskervill at the dais, pressing her case to the Town Board.

The controversy started when the one-story condo building was elevated after Hurricane Irene, and the deck was extended those 3 feet in to the setback area. That’s how neighbor Grace Evans saw it and why she complained to the Town, two years ago. The Baskervills were asking the Town Board to see it 90 degrees differently. It wasn’t that the deck extended outward, in their view, but that the walkway simply had been elevated several feet in to the air.

The Baskervills claimed that it was a walkway because they didn’t allow deck furniture or anything to sit on those last three feet of the deck.

The SUP hearing attracted more attendees than usual to an Oriental Town Board meeting. In foreground, former Town Commissioner Al Herlands who called on the Town to reject the SUP. In background, in orange shirt, police officer Ben Barnett who testified against it as well. In the row behind Herlands were three members of the Planning Board which earlier voted against recommending the SUP.

Two members of the audience made the case for denying the retroactive Special Use Permit. Part-time Oriental police officer Ben Barnett, who was also at one time the Emergency Management Coordinator for Pamlico County and a volunteer firefighter and EMT, said that with the deck going three feet in to the setback, emergency vehicles could no longer pass thru that side of the property.

Former Town Commissioner Al Herlands took issue with the claim that the deck extension was a walkway. Herlands said he hoped the Town Board “has enough common sense to realize there’s a difference between wood on the ground and an upraised deck.”

While Herlands may have appealed to the board to call a deck a deck, he also turned to the language he knew the Board would have to use when making its quasi-judicial decision about the special use permit. “When they expanded the deck,” Herlands said, “they expanded the non-conformity.”

One of the criteria for rejecting an SUP is whether it would make a property more non-conforming than before. The Town Board found that to be the case. The Board also found the application failed another test — that granting the SUP would “adversely affect public safety and neighboring property.” The board then voted 5-0 to reject the SUP.

Commissioners David White and Barbara Venturi as Missy Baskervill makes her case. Baskervill, an Arapahoe resident, owns an Oriental West condo whose deck was extended in to the setback in violation of the GMO.

In the audience Tuesday night were three of the five members of Oriental’s Planning Board. Two weeks ago, the Planning Board voted 4-0 against granting the SUP. One issue of concern there had been that the Special Use Permit was being sought after the fact. At least one planning commissioner said that it would have set a precedent about enforcing the GMO.

Grace Evans, who had notified the Town two years ago when she noticed the deck of the neighboring Oriental West condos were encroaching on the setbacks set down in the GMO, listens Tuesday night at the SUP hearing. Behind her, Bob and Missy Baskerville who own one of the condos with the extended deck; they claimed the extra three feet were not deck but “walkway.” The Town Board rejected their request for a Special Use Permit.




In other action Tuesday night, there was a meet and greet for new Town Manager Diane Miller. She was sworn in before the public as the meeting started. (Miller had been sworn in two weeks ago before a smaller group at the Board’s retreat and has been on the job since.) Also, the Board decided to meet twice next week – on April 8 and April 10 – to start going over the budget. The meetings will be from 4-6p and are open to the public.

Posted Wednesday April 2, 2014 by Melinda Penkava