It&squo;s unclear now what Barbara Schuvart can do with the garage that was built at her Rockwood Lane home in Tryon.

The Polk County Zoning Board of Adjustment denied Tuesday by a 3-2 margin Schuvart&squo;s request for a variance relating to the location of the garage. She had to request the variance because the garage encroaches about three feet into the required 25-foot side yard setback.

If the garage had been built four feet further away from the side property line, she wouldn&squo;t have any problem. But now she has 30 days to rectify the zoning ordinance violation or face fines.

&dquo;Merry Christmas,&dquo; was Schuvart&squo;s final response after hearing the board&squo;s decision and her options.

Zoning board members said they were sorry for the hardship their decision imposes on Schuvart, but they are bound by the requirements of the zoning ordinance.

The board had to find that the variance request meets seven specific requirements outlined in the ordinance. Two zoning board members, Karen Day and Betty Hill, found that the request did meet those requirements. But the other three members, Frank Monterisi, Preston White and board chair Paul Weidman, found that it fell short on two requirements.

Specifically, the ordinance requires the board to find that the special circumstances leading to the variance request are not the action of the applicant. Monterisi, White and Weidman said circumstances were the result of actions by the applicant or the applicant&squo;s agent, the contractor who built the garage. They said they consider any action of an agent of the applicant to be an action of the agent.

To consider the agent&squo;s actions otherwise, they said, would allow any landowner to free themselves from responsibility by blaming any problems on builders. Ultimately, they said, the property owner has to be responsible.

Day and Hill contended that allowing the variance would not be injurious to immediate neighbors or the neighborhood. They said allowing the garage to sit three feet into the 25-foot setback would still allow sufficient space between Schuvart&squo;s house and neighboring houses, and would avoid &dquo;undue congestion&dquo; given that Schuvart&squo;s house is on 5.4 acres and there are other large lots in the area. They noted that Jim Cooper, an adjoining property owner, said the encroachment &dquo;is of not practical consequence to him,&dquo; and no one testified in opposition to the variance request.

The ordinance also requires zoning board members, before granting a variance, to find that &dquo;there are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography that are not applicable to other lands or structures in the same district.&dquo;

Day and Hill said they thought there were such exceptional conditions because Schuvart faced numerous contraints when selecting a site for the house. Day said the placement of the garage was dictated by the house placement, which was dictated by soil perk requirements and the location of rock, streams and a septic tank.

The other three zoning board members said they think such conditions are not unique to Schuvart&squo;s land.

Schuvart&squo;s builder, Tim D&squo;Oyen, said he believes the garage was moved into the setback area largely because the orientation of the house was rotated approximately 30 degrees counterclockwise from the original plan.&bsp; D&squo;Oyen testified that it was his mistake not to re-measure the setback distances for the garage after the house was rotated.

Zoning board members said the building and zoning compliance permits were issued by the county prior to the rotation.

Zoning board chair Weidman acknowledged that this case was difficult for the board because it was only three feet and adjoining property owners did not object. He noted that in other cases the board was asked to approve a variance when a structure was 24 feet into the 25 feet setback, and that clearly could not be allowed.

But Weidman said the zoning ordinance clearly states that if the board determines, as it did, that any of the seven requirements for a variance is not met a variance cannot be issued.

&dquo;I wish that it could be different,&dquo; said Weidman. &dquo;We&squo;re just pretty tightly bound to make sure all the conditions are met before we can grant a variance.

&dquo;I think this is extremely unfortunate because you have in good faith relied on the builder to meet the building and zoning requirements.&dquo;

Schuvart asked the board what she should do now. Weidman said it is outside the scope of the zoning board to suggest ways to resolve the issue. But he said she should go back to the builder since she relied on him for the location of the garage.Weidman added that she could, as previously suggested by county planner Cathy Ruth, go to adjoining property owners and try to obtain three feet of land&bsp; in the area immediately around the garage.

Zoning board members said Schuvart would need only a small slice of land from the adjoining properties, and that seemed like an easy solution. Schuvart said one of the adjoining property owners wouldn&squo;t have a problem with that, but she&squo;s not sure about the other.

Ruth previously attempted to negotiate an alteration of the property boundary to avoid the setback violation, but the arrangement &dquo;proved infeasible.&dquo;

County officials also said Schuvart can appeal the zoning board&squo;s decision within 30 days to Superior Court.