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Pawleys Island: The 50 percent rule: Hearing reveals rift on home remodeling limit

By Charles Swenson
Coastal Observer

A dispute over a deck and a set of steps could cause the town of Pawleys Island to change the way it treats structures that don’t conform to its zoning rules.

For 25 years, the town has said owners can’t spend more than 50 percent of a structure’s value on improvements without bringing it into compliance. That’s a major issue in a town where the lots are narrow, many buildings are old and structures often stray into the mandated setbacks.

The Georgetown County building officials who are contracted to interpret and enforce the town’s zoning and issue building permits say the town’s interpretation is wrong. The conflict was brought to light last week when a south end resident appealed the certificate of occupancy issued to a neighbor who renovated his house and who added on to a set of stairs and a deck that encroach on his lot’s building setback.

After a three-and-a-half-hour hearing, the Board of Zoning Appeals ruled that Thomas L. Davy Jr. has to remove the stairs and deck. But it left standing the conflict over the so-called 50 percent rule. The appeals board revoked Davy’s certificate of occupancy because he increased the size of the nonconforming deck and stairs when he added a floor to his house.

“I do not think you can take a small set of steps and turn them into a porch and an upper deck,” board member Frank Robinson said in his motion. The vote was 5-0.

As to the 50 percent rule that was the subject of debate by three attorneys during the course of the hearing, Robinson said, “the statute is inartfully drafted.”

Davy will wait until the board issues a written order to decided his next step, said his attorney, Bob Moran.

Carolyn Camlin appealed the certificate of occupancy. The steps on the Davy house extend to her property line, taking up the full 15-foot setback on the Davy lot.

At the appeals board hearing, where about two dozen people packed Waccamaw Library’s conference room, Camlin testified that Davy told her he was aware that the steps and porch were in the setback and told her, “I will take care of it.” When the structure was repaired and expanded, she filed a complaint with the town.

She said Davy threatened to use the house to put up bands that perform at the Hot Fish Club, which his family owns. “He shook his finger at me,” Camlin told the board.

Davy testified that, “I told her I would make an effort with planning and zoning and through my contractor to move those steps. I didn’t want them there either.”

Jack Scoville, the attorney for Camlin, questioned Davy about the cost of the renovation. On the checklist that was submitted to the town before the building permit application, Davy showed the house was valued at $139,000 and the estimated project cost was $64,000, or 46 percent.

The building permit issued by Georgetown County in October 2009 on behalf of the town showed the value of new construction was $69,200, or 49.78 percent.

“Does that not indicate you were well aware of the 50 percent rule?” Scoville asked.

“I understood I could not go above 50 percent,” Davy said.

Building inspectors said the value of the work exceeded the original permit amount, and in April Davy upgraded his permit by $55,800, bringing the total to $125,000.

The town attorney, David DuRant, wrote the county zoning administrator in June that for any property where the cost of new construction appears to exceed 50 percent of a structure’s value the owner must submit a sworn statement from the builder about the actual cost. The value of the existing structure was to be based on county tax records or an appraisal.

Davy’s builder, Claude Parsons, submitted an affidavit saying the construction cost was $65,363. That was also signed by Davy. Parsons submitted another statement that put the costs at $71,200.

Davy submitted an appraisal that showed the value of the house was $148,720, making the renovation worth 47.875 percent. The certificate of occupancy was issued by the town.

In her appeal, Camlin claimed all the costs of improvements were not included in the statements Davy submitted.

Under questioning from Scoville, Davy said the amount on the affidavit was wrong. He was doing work on the house, a house in Litchfield Plantation, a house in Camden and the Hot Fish Club and preparing to leave for Washington State where he has been working as a management consultant at a nuclear power plant. “I thought it was accurate at the time,” he said.

He said he couldn’t offer an exact amount. “I might have spent $115,000,” he said.

Davy was also questioned by Worth Johnson, an appeals board member, about the costs listed on the affidavit.

“Where did you buy nine doors for $612,” Johnson asked. “I would love for you to have been my buyer.”

Davy said the doors came from another house and were in storage in Camden.

He also told the appeals board he was told by county building officials that not all the costs of renovation needed to be included, particularly those that were related to safety, such as porch steps.

He said he felt he had been singled out. Everything was “business as usual,” then “all of a sudden, here I am sitting in the chair tonight,” he said. “Treat me the way all these other people have been treated.”

The appeal process uncovered “gray areas” in the town zoning ordinance, he said. “I’m really offended,” Davy told the appeals board. “I’m being called a thief and a liar.”

Under questioning by Moran, the attorney for Davy, Robert Cox, the county’s chief building official, testified that the 50 percent threshold for bringing a nonconforming structure into compliance only applies when a structure is damaged or destroyed. For renovation, if the cost exceeds 50 percent the structure must comply with federal flood regulations.

Davy’s house met the flood rules, Cox said. If it hadn’t Davy would not have received a building permit.

He said the affidavit of costs was irrelevant. “He could have spent a million dollars,” Cox said.

This was the first time since the county took over permitting for the town that the 50 percent issue has been raised, he said.

“Were you informed early on that there was heightened scrutiny of this building?” Moran asked.

Cox said he heard some discussion in the Building and Zoning office. He said he also got a call from Mayor Bill Otis asking “that I look into this particular structure.” Cox said he gave it the same scrutiny he gives to all projects.

Scoville challenged Cox’s interpretation of the 50 percent rule. He pointed to DuRant’s letter to the zoning administrator requiring a sworn statement of cost.

“That’s the town’s position,” Scoville said. “You’re hired to interpret the town’s ordinance, is that not true?”

Cox said the letter represented DuRant’s interpretation, which he believes is at odds with text of the town ordinance.

“You did not follow the town’s position,” Scoville said.

“I followed the law,” Cox replied.

DuRant also addressed the board. He said the town doesn’t have a position on the appeal, but added “it is the town’s position and always has been the town’s position … you have to comply with the 50 percent rule if you are renovating on the island.”

That standard has been applied to every case since he became town attorney in 1995.

“Mr. Davy was well aware of that rule from the outset,” DuRant said. “It defies belief that he comes in here tonight and acts like he didn’t know the rule.”

The only issue before the board was whether the cost exceeded 50 percent of the value, he said.

But the appeals board drew its decision from a comment by the county zoning administrator, Joanne Ochal. Questioned by Robinson about whether a nonconforming use can be expanded she said an owner could not enclose a deck and, “I would not agree that you can continue to add to a deck.”

Moran noted that the footprint of the porch and steps never changed due to the renovation.

“They’ve got the whole thing cluttered up like a carnival,” Johnson said.

But the footprint didn’t change, Moran said.

“You must be blind,” Johnson said.

“If anything is extended beyond where it was in 2009,” Moran said, it will be moved in 72 hours.

“I am very sorry,” Moran told the appeals board. “The man you hired to interpret and enforce the law interpreted it correctly.”

Scoville said Cox’s “personal views don’t amount to a hill of beans.” DuRant’s letter stated the town’s position “for about as long as the town has had zoning.”

In any case, Davy had demolished the structure by removing the siding and the roof during the renovation, he said.

And he highlighted Ochal’s remark about increasing a nonconforming structure. “The certificate of occupancy should not have been issued,” he said.

The board agreed.

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