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Board upholds zoning order

The Erwin Board of Zoning Appeals met for its October meeting on Wednesday, Oct. 22, with the main subject on the agenda being the fate of the Hillbilly Butts & Brisket BBQ food trailer located on Main Street.
The food trailer was found to be in violation of a city ordinance in late August. The violation in question is an ordinance regarding the permissibility of the use of mobile food units in the B-2 Arterial Business District.
“It is my decision that the mobile food unit does not conform to the uses provided in Section 705,” said Erwin Building Inspector Michael Borders at the meeting.
The ordinance indicates that the piece of property in use by the trailer is designated for hotel, retail or other commercial use. Borders also said that the fire marshals had some concern with the setup of the operation.
Ross Phillips, planner with the First Tennessee Development District, explained to the board that they were voting on whether or not to uphold Borders’ decision. Phillips said that it would take a unanimous decision to overturn the ruling while only a majority would be needed to uphold the decision. In essence, the default ruling would be to uphold the decision.
Before the decision was made, in conjunction to discussion amongst the commissioners, various individuals received an opportunity to address the board including Lewis Carsten, owner of Hillbilly Butts & Brisket BBQ.
“Folks, if the city had told us there was any kind of problem, we would not be here,” said Carsten. “We didn’t come here looking for trouble. We didn’t come here looking for a fight. We’re retired … we came here to sell a little barbeque and make some more friends.
“I think it’s an injustice. Not one time did anyone say there would be an issue with zoning.”
Erwin resident Michael Baker confronted the board with his concerns.
“It’s like you’re just picking one business and just telling them to get out,” said Baker. “Can you just explain why?”
Upon the calling of a vote, the board voted unanimously to uphold Borders’ decision. The food trailer has 30 days as of Oct. 16 to move from their current location.
Following the meeting, City Recorder Glenn Rosenoff shed some light on the town’s decision.
Essentially, the Board of Zoning Appeals is not a forum for debating ordinances; the board is simply in place to enforce them. The board has no recourse in their decision-making. As Rosenoff put it, “it’s either a violation or it’s not.”
Rosenoff also said that Hillbilly Butts & Brisket BBQ was allowed its current location based on the grounds that the business would be looking for a permanent “brick and mortar” location.
However, Rosenoff said that there was “no indication whatsoever” that the business was seriously looking to establish at a permanent location. They had even said, according to Rosenoff, that they were looking to stay in the trailer over the winter.
City building inspector Michael Borders was just doing his job by issuing the violation, the city recorder also said.
“The violation had been going on long prior to [Borders] accepting that job,” said Rosenoff. “We thoroughly examined that zoning violation.”
Borders was hired as Erwin’s building inspector in August.
Rosenoff said that his staff has plans in the future to look at the current ordinances and potentially make adjustments.
All things considered, it is little consolation for Carsten and his family.
“They absolutely blindsided us,” said Carsten.
Lindsie Depew, the daughter of Carsten who helps with her family’s business, was devastated following the decision.
“I feel heartbroken for my parents,” said Depew. “They loved it here. The people have been great. Our request was for the town to let us get enough money to find a building but I guess they just didn’t have the patience for it.
“We loved it here. We invested everything we had into that trailer.”
Despite the outcome of the day, Carsten walked out of town hall saying he planned to continue selling barbecue.
“Hey, I’m gonna cook barbeque and I’m damn good at it,” said Carsten, smoking a cigarette with a slight smile on his face. “I believe that if one door closes, the good Lord will open another one.”
Carsten said that there was “zero” possibility that he will remain in Erwin. He did hint at the idea of setting up in Jonesborough if the situation can be facilitated.
• • •
On Friday, Oct. 24, Rosenoff offered further clarification to The Erwin Record on the issues surrounding Carsten’s food trailer.
Rosenoff said the area where the barbecue trailer is currently located is zoned B-2 (Arterial) Business District. According to the town ordinance Section 705 “the intent” of this zoning district is “to establish business areas that encourage groupings of compatible business activities, reduce traffic congestion to a minimum and enhance the aesthetic atmosphere of the Town of Erwin.”
Also, permitted uses in this district are: any use permitted in a B-1 neighborhood business district; hotels and motels; auto and mobile home sales; restaurants; offices; places of amusement and assembly; funeral homes; public and semi-public buildings and uses; travel trailer parks; and lodges and clubs. Mobile food trailers are not included in the ordinance.
Rosenoff said he was told the food trailer was brought to Erwin on a temporary basis.
“I understood it was temporary,” he said. “My planning and zoning experience kicked in and I questioned it. On May 22, I went to the then-building inspector (Brian Hensley) and said ‘I think it’s a zoning violation.’
“I was told the trailer was temporary and they were looking for somewhere to set up as a permanent business. and I thought, ‘That’s great’.”
Rosenoff said as time passed, he continued to be under the impression that the barbecue trailer was a temporary until a permanent location could be found. He said he asked Hensley to research the town’s zoning ordinance in regards to mobile food trailers.
Because Hensley resigned in June and Borders was not hired until August, there was a gap in time where no building inspector was on staff to research and enforce zoning issues.
“Between June 20 and Aug. 18, I contracted with a building inspector to only do building inspecting duties while I went through the hiring process,” Rosenoff said. “… I asked Michael to pick up the torch on researching the zoning in regards to the food trailer and to continue to work with Ross Phillips, our contracted planner through the First Tennessee Development District.”
He also said Borders and Phillips were instructed to meet with Carsten about the possible ordinance violation and their ongoing research into the issue. Rosenoff said eventually he, Borders and Phillips all independently concluded that the barbecue trailer violated the town’s zoning ordinance and was not a permitted use in the B-2 zone.
“Zoning is the law of the land for the entire Town of Erwin,” Rosenoff said.
However, according to Rosenoff, Carsten was not told to immediately cease operations after officials determined the barbecue trailer was not permitted in the B-2 zone. He also said town officials met with Carsten on several occasions to discuss the future of the food trailer.
“Michael (Borders) approached them to have a sit down,” Rosenoff said. “He didn’t do a stop order. He didn’t say cease and desist. He didn’t say leave town. He said, ‘We want to talk’. … With a zoning violation he had every right to say, ‘stop’, but he didn’t. He let them continue.” This meeting, according to Rosenoff, took place on Sept. 4. “We were transparent,” he added. He also said the town offered to help Carsten find a permanent location for the business.
“We offered to evaluate any building they had in mind to give them an assessment for meeting codes so they wouldn’t waste time looking for a building,” Rosenoff said. “As far as I know we haven’t been taken up on that. We told them that on Sept. 4.”
Also during that meeting, according to Rosenoff, he was asked about a time frame for the trailer to remain at its Main Avenue location.
“I didn’t give them a specific time frame,” he said, “but, I did tell them that administratively I would have to draw boundaries.”
Earlier this month, Borders issued the letter officially notifying Carsten that the trailer had to be moved within 30 days. According to Rosenoff, Borders also notified Carsten that he had the right to appeal to the Erwin Board of Zoning Appeals (BZA), which would hear the zoning case.
“We did extend due process to them,” he added. “I wanted to show our hand and say there is a place for them to appeal the administrative decision.”
Rosenoff described the role of the BZA a “quasi-judicial” panel. “They are limited in their powers under administrative review to decide if there is a zoning violation or not,” he added.
Also, according to town ordinances provided by Rosenoff to The Erwin Record, the powers of the BZA are, according to Article XI, Section 1104: “Administrative review. To hear and decide appeals where it is alleged by the appellant that there is error in any order requirement, permit, decision, determination or refusal made by the building inspector or other administrative official in the carrying out or enforcement of any provision of this ordinance.”
The appeal took place during the Oct. 22 meeting described above.
In response to critics who say the Town of Erwin is not business friendly, Rosenoff pointed to the town’s efforts to revitalize the downtown area, the recent openings of new businesses such as Tractor Supply, and plans for chain restaurants Taco Bell and Bojangles to locate in the town.
“The town is investing in it’s future,” he said.