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HomeMy WebLinkAboutAgenda - 02-22-1999 - d1bORANGE COUNTY BOARD OF COMMISSIONERS PUBLIC HEARING AGENDA ITEM ABSTRACT Meeting Date: Februa►y22, 1999 Agenda Abstract Item # n 1 (h) SUBJECT: ZONING ATLAS AMENDMENT - Z -01 -98 Armin Lieth DEPARTMENT: PLANNING PUBLIC HEARING: X Yes No BUDGET AMENDMENT REQUIRED: Yes X No ATTACHMENTS: Staff Findings Application Vicinity Map Staff memorandum Agency Comments Certificate of Mailing INFORMATION CONTACT: Karen Lincoln, Extension 2583 PHONE NUMBERS: Hillsborough 732 -8181 Mebane 227 -2031 Durham 688 -7331 Chapel Hill 967 -9251 9 i PURPOSE: To receive evidence and citizen comment on the proposed rezoning of portions of two lots in the White Cross community, Bingham Township, from R -1, Rural Residential, to LC -1, Local Commercial, and NC -2, Neighborhood Commercial. The applicant is proposing to rezone 4.0 acres of an 11.5 acre lot (PIN 9749 -50 -8084) from R -1 to NC -2; to rezone 2.5 acres of that same lot from R -1 to LC -1; and to rezone 1.5 acres from another 11.5 acre lot (PIN 9748- 59 -4995) from R -1 to LC -1. BACKGROUND: The subject property is owned by Armin Lieth and is located on the south side of N.C. Highway 54 West approximately 0.28 mile west of Butler Road (SR 1951) and approximately 0.265 mile east of White Cross Road (SR 1952). As previously indicated, the property is zoned R -1, Rural Residential. The southern halves of the two lots are zoned HAW -PW, Haw River Protected Watershed Overlay District. Approximately 2.0 acres of the area proposed to be rezoned to LC -1 is within the HAW -PW Overlay District. None of the NC -2 NEIGHBORHOOD COMMERCIAL ZONING DISTRICTS Date Zoned Zoning Case Acreage Zoned 9/02/1881 Township Zoned (6.30.713) 9/02/1881 Township Zoned (6.30..20 9/02/1881 Township Zoned (6.30..15) 4/07/1986 Vernon P. Davis (6.30B..p /o 8) 8/01/1989 Whisnant & Phillips (6.30..p /o 8) 8/05/1991 W.E. Blackwood (6.30B.p /o 13) TOTAL: 0.36 ac. 1.01 ac. 0.99 ac. 1.00 ac. 1.00 ac. 0.65 ac. 5.01 ac. 193 In December, 1995, a proposal to rezone a 4.71 acre lot within the White Cross Rural Community Node from an Agricultural Residential Zoning District to an Agricultural Services District triggered opposition from surrounding property owners who opposed increasing commercial uses in the area. Minutes from that meeting also indicate that "this area was. studied several years ago with other economic development districts because it was reaching its maximum" (maximum allowed area zoned for commercial uses). "The sentiment from the residents was that no changes were wanted that would provide for more non - residential development. Thus, that area was eliminated when proposed economic development districts were recommended." The Planning Board recommended "the establishment of a small area planning group to work with the property owners and residents in and around the White Cross activity node to prepare a land use plan for the node." The Orange County Sheriff's Department commented that the Sheriffs Department presently provides patrol services to the area and that office sees no need for an increase in personnel or equipment to continue that service (if the property is rezoned). The Orange County Fire Marshall has commented that fire protection to the property is provided by the White Cross Volunteer Fire Department and emergency medical services are provided by Orange County Emergency Management; that the impact on those emergency response agencies cannot be determined until a specific development is proposed since requirements for staff and equipment are based on quantity, size, type and' occupancy of buildings. RECOMMENDATION: Article 20.3.3 of the Orange County Zoning Ordinance requires that the Zoning Officer's recommendation be presented 195 BASED ON THE APPLICATION MATERIAL SUBMITTED, THE PLANNING STAFF RECOMMENDS THAT THERE IS EVIDENCE TO SUPPORT THE FOLLOWING FINDINGS AS REQUIRED BY THE ORANGE COUNTY ZONING ORDINANCE: Article XX, Section 20.3.2 of the Orange County Zoning Ordinance state that applications for amendments to the Zoning Atlas , without limiting the right to file additional material, shall contain at least the following. PLANNING STAFF EVIDENCE SUBMITTED TO PLANNING BOARD FINDINGS BASED SUPPORT FINDINGS RECOMMENDED ON SUBMITTED FINDINGS APPLICATION 20.3.2a) Map showing As part of the application, the Yes No affected property at a scale of applicants have submitted a not less than 1" =100' nor plat of the subject property at more than 1 " =20'. X Yes No 1 " =60' scale. 20.3.2a) Legal description of As part of the application, the Yes No property. X Yes No applicants have submitted a legal description of the subject property. 20.3.2 c) Explanation of The application does not allege Yes No alleged error, if any, to be that there is an error in the corrected by proposed Zoning Atlas. amendment. Yes X No 20.3.2d) Changed conditions, The application states that the No if any, which make population of Bingham Township amendment reasonably has grown an average of about 3% necessary to promote public annually since the 5.0 acre min. for health, safety and general X each commercial zone was welfare. Yes established; that traffic on both NC Hwy 54 and Old Greensboro Rd. have increased significantly because area residents must drive an average of 20 miles (10 miles each way) to the nearest convenience store. Population projections prepared by the Orange County Planning Dept. in June, 1992, using the Community Analysis and Planning Computer Program indicate a 30 -year average annual growth rate of 2.91% - the highest for any township in Orange County using that method. Population estimates from April, 1997, using a composite estimate which 197 ARTICLE 4 - DISTRICT STATEMENTS OF INTENT AND APPLICATION CRITERIA Article 4.2 identifies the criteria which will normally be used to determine the application of a zoning district designation. The applicant has applied for a Local Commercial -1 designation. The criteria for that district are set forth in Article 4.2.8b) as follows: 1. Site is located within areas designated by the adopted Comprehensive Plan as either a Commercial Transition Activity Node, a Rural Commercial Activity Node or a Rural Neighborhood Activity Node. PLANNING STAFF FINDINGS BASED ON SUBMITTED APPLICATION X Yes No EVIDENCE SUBMITTED TO SUPPORT FINDINGS The proposed sites are within the White Cross Rural Community Activity Node. 2. Uses would serve a market The application indicates area population confined to the increased commercial area is immediate area and would needed to serve the entire generally not serve commuters township. or persons outside the surrounding neighborhood. Yes X No 3. Lot size for individual uses shall be appropriate to the method of water supply and sewage disposal. X Yes No 4. Normally, the maximum amount of land zoned LCA at any node shall not exceed nine acres, but 5 acres shall apply in rural areas where population density is lower and distributed more widely than in the Transition area. Acreage limitations shall not apply to property zoned Existing Commercial -V (EC -5) or planned developments. Yes X No 5. All sites designated LCA shall have direct access to a street classified either as an arterial or collector as designated by the adopted Comprehensive Plan. X Yes No The application indicates that engineering reports indicate the ability to treat up to 8,000 gallons per day of septic waste on site. Staff finds that all proposed zoning lots are greater than 1.0 acre in size which should be sufficient size to locate septic systems. The application indicates that population density in this area is comparable to that within transition areas. Staff finds that there are 5.00 acres of land within the node zoned for LCA uses - the maximum allowed within a rural community. Proposed zoning lots have frontage on N.C. Hwy. 54 W. PLANNING BOARD RECOMMENDED FINDINGS Yes Yes Yes Yes Yes 2M m No No li•M December 31, 1998 Mr. Gene Bell, Director, Orange, County Planning Dept. 306 -F Revere Road Hillsborough,-NC, 27278 Dear Sir: all r Attached please find the Applicatimfor. Change- of Zoning-that-we. discussed before the holidays. I have included a check for $255.00 to cover the application fee. Since the. septic area will serve the- whole site's septic need-(both residential and commercial) through a single system, and septic disposal is allowed in RI zoning, I have not requested-rezoning thatarea_ but _indicated_the_area_tabe-used on the, plan. Sincerely, Armin Lieth 201 Statement of Justification TM 6.308..9 + 10 PIN 9748 -59 -4995, 9749 -50 -8084 1) The subject-property is-in the. White.Cross_activity node__ The Zoning-Ordinance allows for the NC 2 Zoning in the White Cross node. Although normally 9 acres would-be_ allowed, in the- past the_populatiunamund_themode has. been. considered low and distributed more widely than in the Transition areas. Therefore, the total acres of NC2_inthe_node washeldta 5_ The_ . ment taincludethe septic- ateaip the commercial area has reduced the usable acreage even further. 2) The populati.onofRing am ownship.isnaw over UQ0..residents_and has gmwn an average of about 3% annually since the inception of the 5 acre maximum. Traffic on both Hwy_ 54 and Old Greensboro Rd have, increased significantly due too -,the fact that residents of the area must drive on average 20 miles (10 each way) to get to the "comer" store to buy a gallon of milk_ Each of these trips will be reduced bX at.least 12 miles per trip for every need provided locally. Modern trends of telecommuting further support this and indicate that there will be less strain on transportation arteries if the required services are available locally. The positive environmental benefit of less miles traveled is obvious. 3) Recent public hearings and discussions of the White Cross Small Area Plan support and even significantly expand the future commercial area and function of the node. All public hearings on- the plan- have indicated a need for additional commercial services in the White Cross node. However, work has been suspended on the Small Area Plan due to a shortage of planning staff This request would start to meet the needs of the area until the Small Area plan can be studied further. 4) The site has direct access to Hwy. 54 and engineering reports indicate the ability to treat up to 8000 gal per day of septic waste on site. 5) The site is bordered by commercial operations on both sides. Piedmont Feeds to the west and Sturdivant Tires on the east, and is therefore in the middle of the current commercial activity. The 75 ft setbacks between residential and commercial use is currently not observed on either side. 6) Public hearings, density, and growth of Bingham Township, and the demand for additional services clearly supports the White Cross node be defined as a "Normal" "Rural Community Activity Node" as outlined by section 4.2.9 b)1&4; and therefore this request for rezoning should be granted. Rnmtw Now emcgusT . owwz mAm Lt 572— Ur- V75-f-r- Currervt 1et81 nU"*C Of a=M*__.Z_3 CQ=e4t )ANd U88 Typa of roxouftg requested t-roposed. land awe_ Tax 3UP I—L—B1 Oct 0_2.2�MNvaber of lots -210-10- --Proposed Water Supply: Public Cos unity .- Individual PrOPOSed Sewage Treatments Public Community individual sept-le tank Access auto state mad OPUYS4 Average daily traffic count on the star* road /O3 Desevibe existims critical areas: Flood prone areas &gV_cr -6, A &===—Z Poorly dralmed areas, m_.��GT__ -L, *bar sensitive areas 0*04*110a land wen in: Ceseval Area AdJ6606t, PUCCOU Of Lad Aid 5�P� Tk�_ ck� I C-C r- M White Cross Rural Community Node Request for Zoning Atlas Amendment (Z- 01 -99) 205 Area proposed to be zoned LC-2 El Area proposed to be zmd NC -2 El pww CMxn Uwq Node ORANGE COUNTY PLANNING DEPARTMENT 306F REVERE ROAD HILLSBOROUGH, NORTH CAROLINA 27278 F�� iT iJ�l Kt' (mow MEMORANDUM TO: ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ORANGE COUNTY PLANNING BOARD FROM: ORANGE COUNTY PLANNING DEPARTMENT DATE: FEBRUARY 22, 1999 SUBJECT: Z -01 -98 ARMIN LIETH GENERAL INFORMATION Applicant: Armin Lieth Location: The property is located within the White Cross Rural Community Node on the South side of N.C. Hwy. 54, approximately 0.28 mile west of Butler Road (SR 1951) and approximately 0.265 mile east of White Cross Road (SR 1952), Bingham Township. Lot size: 4 acres to be rezoned from R -1 to LC -1: [1.5 acres out of an 11.5 acre lot identified in Orange County Land Records Office by PIN 9748 -59 -4995 (tax map reference 6.30B..9); 2.5 acres out of an 11.5 acre lot identified in Orange County Land Records Office by PIN 9749 -50 -8084 (tax map reference 6.30B..10). 4 acres to be rezoned from R -1 to NC -2 out of an 11.5 acre lot identified in Orange County Land Records Office by PIN 9749 -50- 8084 (tax map reference 6.30B..10). Existing Land Use: Undeveloped. Surrounding Land Use: North: R -1, Rural Residential: residential uses with commercial uses to the northwest South: R -1, Rural Residential and HAW PW, Haw River Protected Watershed: residential uses and undeveloped areas. 207 2 0:) MEMORANDUM Z- 01 -99, Armin Lieth February 22, 1999 Page 3 1. Site is located within areas designated by the adopted Comprehensive Plan as either a Commercial Transition Activity Node, a Rural Commercial Activity Node or a Rural Neighborhood Activity Node. 2. Uses would serve a market area population confined to the immediate area and would generally not serve commuters or persons outside the surrounding neighborhood. 3. Lot size for individual uses shall be appropriate to the method of water supply and sewage disposal. 4. Normally, the maximum amount of land zoned LC -1 at any node shall not exceed nine acres, but 5 acres shall apply in rural areas where population density is lower and distributed more widely than in the Transition area. Acreage limitations shall not apply to property zoned Existing Commercial - V (EC -5) or planned developments. 5. All sites designated LC -1 shall have direct access to a street classified either as an arterial or collector as designated by the adopted Comprehensive Plan. Permitted and Special Uses allowed within the LCA zoning district are listed below. Day Care Facility, other than Large Day Care Home Day Care Home Dwelling, Single - Family, w /wo efficiency apartment Dwelling, Two - Family Dwelling, Mobile Home Family Care Home Group Care Facility (requires Class B Special Use Permit) Rehabilitative Care Facility Accessory Uses to Principal Uses Botanical Gardens and Arboretums Bus Passenger Shelter Church 211 MEMORANDUM Page 5 Z- 01 -99, Armin Lieth February 22, 1999 Permitted and Special Uses allowed within the LC -1 zoning district (cont.): c) all operations are conducted entirely within a fully enclosed building with no outside storage. Studio (Art) , Special Events (Less than 150) Provisions of Article 4.2.9 of the Orange County Zoning Ordinance are as follows. The purpose of the Neighborhood Commercial -II (NC -2) District is to provide appropriately located and sized sites for limited commercial uses designed to serve a population at the neighborhood and rural level with convenience goods and personal services. Performance standards will be used to insure the absence of adverse impacts beyond the lot boundaries of the use. This district will usually be applied where the following conditions exist: 1. Located within areas designated by the adopted Comprehensive Plan as either a Commercial Activity Node or Rural Neighborhood or Rural Community Activity Node. 2. Uses would serve a market area population confined to the immediate area and would generally not serve commuters or persons outside the surrounding neighborhood. 3. Lot size for individual uses shall be appropriate to the method of water supply and sewage disposal. 4. Normally, the maximum amount of land zoned NC -2 at any node shall not exceed nine acres, but a maximum of 5 acres shall apply where population density is lower and distributed more widely than in the Transition areas. Acreage limitations shall not apply to property zoned Existing Commercial -V (EC -5) or planned developments. 5. All sites designated NC -2 shall have direct access to a street classified either as an arterial or collector as designated by the adopted Comprehensive Plan. 21 1s MEMORANDUM Z- 01 -99, Armin Lieth February 22, 1999 Permitted and Special Uses allowed within the NC -2 zoning district cont.): Page 7 Offices & Personal Services that attract few customers or clients on premises other than employees, that generate low traffic volumes, and have no adverse impacts beyond the space occupied by the building Offices & Personal Services that generate medium traffic volumes, and have no adverse impacts beyond the lot boundaries. Recreational Facilities (non - profit) (requires Class B Special Use Permit) Golf Facilities; Golf Course requires Class A Special Use Permit) Repair Service, Electronic & Appliance Research Facility Restaurants, Carry Out Restaurants, General Retail Trade, Sales & Rental of Durable and Convenience Goods, Merchandise & Equipment, Including Mail Order Houses, where no adverse impacts occur beyond immediate space occupied by the building where: a) operations are designed to attract & serve few customers or clients on premises other than employees of the principal use; b) use creates low volume traffic generation (0 -200 trips /day); c) all operations are conducted entirely within a fully enclosed building with no outside storage. Retail Trade, Sales & Rental of Durable and Convenience Goods, Merchandise & Equipment, Including Mail Order Houses, where no adverse impacts occur beyond the boundaries of the lot where the use is located and the use creates low volume traffic generation (200 - 800 trips /day) Studio (Art) Special Events (Less than 150) To: Eddie Kirk Orange County Planning Department From: Sheriff Lindy Pendergrass Date: January 15, 1999 8e: Re- :aning of residental property. Location: Hwy 54 West (Nhitecross) Tax map 5:30 H lots 9& 20 ( these two Lots are located between Sturdivant Tire and Piedmont Feeds). The Orange County Sheriff's Office has been asked to write a letter regarding our ability to provide law enforcement services for the proposed rezoning site. We presently ,provide patrol services to this area and see no need for an increase in personnel or equipment to provide this service. Should any further information be needed please contact our office. Armin Lieth PO Sox 4752 Chapel Hill, NC 27715 919 - 958 -9854 215 ORANGE COUNTY PLANNING DEPARTMENT 306F REVERE ROAD HILLSBOROUGH, NORTH CAROLINA 27278 7 `��.� CERTIFICATE OF MAILING ZONING ATLAS AMENDMENTS ORANGE COUNTY, NORTH CAROLINA I, Karen Lincoln, Zoning Officer, Orange County, North Carolina, DO HEREBY CERTIFY that on or about February 12, 1999, 1 mailed, by certified mail, postage prepaid, a Notice of the Public Hearing to be held on the request for rezoning of 4.0 acres of property in Bingham Township (1.5 acres from property idenitified in Orange County Land Records Office by PIN 9748 -59 -4995 and 2.5 acres from property identified in Orange County Land Records Office by PIN 9749 -50 -8084) from Rural Residential to Local Commercial -1 and the request for rezoning 4.0 acres of property in Bingham Township (from p rope rty_identified in Orange County Land Records Office by PIN 9749 -50 -8084) from Rural Residential to Neighborhood Commercial -II to each property owner as required by Article 20, Section 20.6.3 of the Orange County Zoning Ordinance. The notice mailed specified the date, time, place and subject of the Public Hearing on the zoning classification change. WITNESS my hand, this the 16th day of February, 1999. KAREN LINCOLN ZONING OFFICER ORANGE COUNTY PLANNING DEPARTMENT 306F REVERE ROAD HILLSBOROUGH, NORTH CAROLINA 27278 `��•sr u e u sx MEMORANDUM TO: Orange County Board of County Commissioners FROM: Karen Lincoln, Planner III DATE: February 17, 1999 SUBJECT: FYI - Article on Types of Zoning Decisions For your information, I am enclosing the article by David Owens (with the Institute of Government) that explains the difference between legislative and quasi-judicial zoning decisions. Since you have indicated that the article was useful in preparing for the November 23, 1998, public hearing, I will continue to forward this article with future public hearing agenda packages. - The proposed Zoning Atlas Amendments for Lawrence Park and Armin Lieth as well all proposed Comprehensive Plan Amendments are legislative decisions. The proposed Lawrence Park development also involves a Special Use Permit for a Planned Development which is a quasi-judicial or evidentiary decision. The following excerpt from the article outlines key differences between the two types of hearings. Popular Government Spring 1993 Zoning Hearings: Knowing Which Rules to Apply David W. Owens http:1/ ncinfo .iog.unc.edu /planning/pgsp93.htm This material is copyrighted by the Institute of Government Any form of copying for other than the individual user's personal reference without express permission of the Institute of Government is prohibited Further distribution of this material is strictly forbidden, including but not limited to, posting, e- mailing, fazing, archiving in a public database, redistributing via a computer network or in a printed form. ._._ .............__._. Armed with petitions, lapel pins, and lawyers, 200 agitated citizens crowd into the courthouse to voice their objection to a proposed rezoning. They have been writing and calling the county commissioners ever since the notice of the hearing appeared in the local paper a few weeks ago. How should this hearing be conducted? Must everyone be allowed to speak for as long as he or she wants? May the board consider the strong personal opinions it is about to hear? What about the petitions and the calls the commissioners got last week? If the board decides on a compromise that gives petitioners only part of what they want, is another hearing required? When it comes time to make a decision, does the board have to justify its conclusion? Consider another situation. On the same night, a few miles away, a city council is holding a hearing on a special -use permit application for a controversial project. This hearing room is also packed with angry neighbors, and the council members have to struggle with most of the same questions, plus a few more. Does everyone who speaks need to be under oath? Does there have to be a transcript of the hearing? Since the city's zoning ordinance calls for this decision to be made by the city council instead of a board of adjustment, can informal procedures be used? The answers are different in these two situations. They illustrate the two different types of zoning hearings, which have different purposes and rules of conduct. Because both types are commonly called "public hearings," the difference is confusing to those attending as well as those conducting the hearings. Zoning decisions can profoundly affect landowners, neighbors, and the entire community - -often with a significant impact on property values, the character of neighborhoods, and even the future quality of community life - -so the law imposes special requirements to assure the opportunity for full and open discussion of proposed zoning decisions. These requirements go well beyond what is required for most other city and county ordinances. This article distinguishes the two main types of zoning hearings and lays out the ground rules for how each should be conducted.M Types of Zoning Decisions Local governments are called upon to make myriad zoning decisions, ranging from a planning board's decision to recommend adoption of an initial zoning ordinance to a zoning enforcement officer's decision to issue a notice of violation when the terms of the ordinance have not been followed. Two types of zoning decisions - -legislative and quasi judicialM -- require formal public hearings. Legislative zoning decisions affect the entire community by setting general policies applicable through the zoning ordinance. They include decisions to adopt, amend, or repeal the zoning ordinance (including the zoning map). Quasi-judicial decisions involve the application of zoning policies already established in the ordinance to individual situations- -for example, variances, special- and conditional -use permits (even if issued by the governing board), appeals, and interpretations. Quasijudicial decisions Popular Government Spring 1993 http:// ncinfo. iog.unc.edu /planning/pgsp93.htm When to Apply Both Sets of Rules Local governments imposing special- or conditional -use district zoning must be especially attentive to these differences, because such district zoning involves simultaneous application of a legislative zoning decision (the rezoning to a new zoning district with no permitted uses, only special uses) and a quasi-judicial zoning decision (the decision on the special -use permit for a particular project). Therefore both types of hearings are required, and the local government must exercise particular care in observing whichever rules apply to each stage of its decision making. Rules for Zoning Hearings Informal Public Meetings A local government may decide that it is advisable to hold informal public meetings on zoning issues prior to conducting the required legislative or evidentiary hearing. These may be held for a variety of purposes: to gather public opinion prior to an update of the zoning ordinance or the land -use plan, to discuss potential policy changes, to explain a new provision of the ordinance, or to discuss a particularly controversial project or policy. They may be conducted by the governing board, the planning board, staff, or a neighborhood advisory group. An informal public meeting is just that. It is not a formal hearing; it is not mandated by statute. While it needs to be conducted in a fair and reasonable manner, it is not subject to the legal restrictions that apply to the legislative and evidentiary hearings discussed below.M So the local government is free to set whatever reasonable ground rules it chooses for publicizing and conducting these public meetings. Legislative Hearings As mentioned above, state statutes and court decisions have established some detailed rules for hearings on legislative zoning decisions, which must be followed whenever a zoning ordinance is adopted, amended, or repealed. The requirements for notice of the hearing, its speakers, the information presented, and when an additional hearing is required are set out below. Requirements for a Hearing Since its adoption in 1923, North Carolina's zoning enabling statute has mandated a formal public hearing prior to the adoption or amendment of a zoning ordinance, as well as prior to repeal of zoning.M This hearing must be held by the governing board; a hearing by the planning board alone is not sufficient.M The hearing may be conducted as part of the governing board's regular meeting or it may be held as a special meeting at a separate time and place. The planning board may also hold formal public hearings, but it is no longer required by state law to do so.j6l Newspaper Notice A local government must publish notice of the governing board's required public hearing on the proposed adoption, amendment, or repeal of a zoning ordinance. G.S. 160A -364 for cities and G.S. 153A -323 for counties require that the notice be published in a newspaper of general circulation in the community once a week for two successive calendar weeks, with the first notice being published not less than ten nor more than twenty -five days prior to the hearing. The advertisement is usually run as a legal ad in the classified section of the newspaper, but some local governments purchase larger display ads to provide more prominent notice. While news stories about forthcoming zoning hearings are also common, they cannot take the place of the formal advertisement. Likewise, publication in a homeowners' association newsletter or other informal publication is permissible but may not substitute for newspaper publication. State statutes do not require posting of a sign on the site of a proposed rezoning, although a number of zoning ordinances add that requirement. The published notice must be sufficiently detailed to allow a citizen to determine what is being proposed and whether he or she would be affected. M This does not mean that it must contain a legal description Popular Government Spring 1993 http://ncinfo.iog.unc.edu/planning/pgsp93.htm outside of the hearing, and the like - -need not be observed. After all, with these hearings the governing board is receiving comments, not hearing evidence. The general statutory guidance for legislative public hearings is G.S. 160A -81 for cities and G.S. 153A -52 for counties. The statutes allow the governing board to adopt reasonable rules governing the conduct of the public hearing, including but not limited to rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing. Therefore reasonable rules can be established to limit the number of speakers and the amount of time each speaker is given, provided that the hearing is conducted in a fair and reasonable fashion. An example is provided in Freeland v. Orange County, 15 in which 500 citizens attended the required public hearing on the adoption of zoning for the Chapel Hill township. The chair allotted one hour each to the proponents and opponents of the zoning ordinance, with each side also having fifteen minutes for rebuttal. Some sixteen proponents and fifteen opponents were heard. By a show of hands, it appeared that those at the hearing were opposed to the adoption of zoning by a four -to -one ratio. About 200 persons indicated that they wished to speak but were not allowed to because of the time limitation. The court upheld this procedure, ruling that the legislative intent was to mandate a hearing and provide a "fair opportunity" for those in attendance to present their views. The governing board is allowed, however, to establish an "orderly procedure" for the hearing, as "[t]he General Assembly did not contemplate that all persons entertaining the same views would have an unqualified right to iterate and reiterate these views in endless repetition. "j161 Given that the purpose of a legislative hearing is to broadly solicit public opinion, there is no problem with receiving petitions, hearing personal opinions, or with board members' talking to members of the public about the issue prior to the hearing. This is an important distinction between a legislative hearing and an evidentiary hearing. Also, unlike evidentiary hearings, no written findings of fact or explanation of the decision is required. Additional Hearings A question frequently arises as to whether readvertisement and rehearing are required if changes are made in the proposed ordinance at or after the hearing. The general rule is that an additional hearing is required only if there are substantial changes in the proposal after the initial notice. A 1971 case, Heaton v. City of Charlotte, set the standard for determining whether an additional hearing is required. The court held: Ordinarily, if the ordinance or amendment as finally adopted contains alterations substantially different (amounting to a new proposal) from those originally advertised and heard, there must be additional notice and opportunity for additional hearing. However, no further notice or hearing is required after a properly advertised and properly conducted public hearing when the alteration of the initial proposal is insubstantial. Alteration of the initial proposal will not be deemed substantial when it results in changes favorable to the complaining parties. Moreover, additional notice and public hearing ordinarily will not be required when the initial notice is broad enough to indicate the possibility of substantial change and substantial changes are made of the same fundamental character as contained in the notice, such changes resulting from objections, debate and discussion at the properly noticed initial hearing. lj_7,1 In this instance, the court noted that the notice was broad enough to indicate that changes might be made, the changes were consistent with the fundamental character of the noticed proposal, and the changes were made as a result of comments received at the hearing. This led the court to conclude that an additional hearing "could have resulted only in repetitive statements by the same parties or parties Popular Government Spring 1993 Speakers and Evidence http://ncinfo.iog.unc.edu/planning/pgsp93.htm The principal difference between legislative and evidentiary hearings arises in how speakers and evidence are handled. Since the purpose of an evidentiary hearing is to carefully gather relevant facts to aid in decision making, restrictions on what can be heard and how it can be heard are applied to these hearings. These standards apply to any board making a quasi-judicial zoning decision, even the governing board. This places a particular burden on city councils and county boards of commissioners, which are usually more accustomed to conducting less formal hearings on legislative matters. In the leading case on this subject, Humble Oil & Refining Co. v. Board,of Aldermen, which involved the denial of a special -use permit for a gas station by the governing board in Chapel Hill, Justice Susie Sharp set forth the key requirements for an evidentiary zoning hearing: Notwithstanding the latitude allowed municipal boards, ... a zoning board of adjustment, or a board of aldermen conducting a quasi-judicial hearing, can dispense with no essential element of a fair trial: (1) The party whose rights are being determined must be given the opportunity to offer evidence, cross - examine adverse witnesses, inspect documents, and offer evidence in explanation and rebuttal; (2) absent stipulations or waiver such a board may not base findings as to the existence or nonexistence of crucial facts upon unworn statements; and (3) crucial findings of fact which are "unsupported by competent, material and substantial evidence in view of the entire record as submitted" cannot stand. 22 If critical factual findings in a quasi-judicial zoning matter are based on unworn testimony or hearsay evidence, the decision may be overturned by the courts and the matter sent back for a new hearing. r231 If all the parties agree, however, the right to have witnesses under oath may be waived. 24 A question arises occasionally as to whether attorneys need to be under oath when making a presentation in an evidentiary hearing. If the attorney is just summarizing evidence presented by others and making legal arguments for his or her client, there is no need to be under oath. On the other hand, if the attorney is offering evidence directly, he or she would need to be sworn like any other witness. The court tolerates but strongly discourages an attorney from serving both as a witness and an advocate in the same case.1225 Likewise, if the city or county staff is presenting evidence to the board in an evidentiary hearing, they should also be under oath. Oaths for witnesses testifying at these evidentiary hearings may be administered by the chair of the board or any notary. [261 Witnesses may affirm rather than swear. All individuals likely to testify can be administered the oath together at the beginning of the hearing in order to expedite matters. If this is done, each witness should be reminded of the oath at the outset of his or her testimony. Additional rules apply to assure that evidentiary hearings are conducted fairly. All of the parties to an evidentiary hearing have a right to know all of the evidence being considered by the board. Therefore it is improper for a board member to discuss the case or to individually gather evidence outside the hearing. If a board member has prior or specialized knowledge about a case, that should be disclosed to the rest of the board and the parties during the hearing.LZ71 Also, it is inappropriate in an evidentiary hearing to consider nonexpert personal opinions or hearsay testimony. At the conclusion of an evidentiary hearing, the board making the decision must adopt written findings of the facts upon which it is basing its decision. This contrasts with legislative zoning decisions, where no findings are required--those decisions are left to the sound discretion of the governing board, and the board is not required to explain why it made a particular decision. But since the purpose of an evidentiary hearing is to -produce well - documented evidence to support a decision, the parties are entitled to know what the board concluded are the facts. Any judicial review of the decision is based on the facts as determined by the board making the decision, so the courts also need to know what the board concluded. This is done by requiring written findings of fact. Since any subsequent judicial review is based on the record established in this hearing, it is important to keep detailed records of evidentiary hearings. Sound recording or a verbatim transcript of these hearings � _r�� Popular Government Spring 1993 http:// ncinfo. iog.unc.edulplanning/pgsp93.htm 5. 5. a zoning classification done as part of adopting a mandated water- supply watershed protection program. Where these five exceptions apply, a substitute notice is required in lieu of the individual mailed notice. The substitute notice consists of both publication of a half -page newspaper advertisement for four successive weeks and the posting of a prominent sign at the site of the proposed rezoning. Also, individual mailed notice still has to be provided to those affected landowners who reside outside the newspaper's circulation area. Also, the Supreme Court handed down a decision in County of Lancaster v. Mecklenburg County, N.C. 1993 N.C. LEXIS 403 (Sept. 10, 1993), after this article was published. In this case the court reaffirmed that evidentiary hearings are required for quasi-judicial zoning decisions. The court emphasized that it is the nature of the type of decision -- rather than what it is called in the ordinance or who makes it - -that controls whether this more formal decision - making process is required. Those zoning decisions that involve findings of fact and application of discretion (typically special- and conditional -use permits, variances, and appeals of administrative decisions) are quasi-judicial. The court in this case also addressed the standard for avoiding conflicts of interest in zoning decisions. The court held that with legislative zoning decisions, "where there is a specific, substantial, and readily identifiable financial impact on a member, nonparticipation is required. Additional considerations beyond these financial interests require nonparticipation in quasi-judicial zoning decisions. A fixed opinion that is not susceptible to change may well constitute impermissible bias, as will undisclosed ex parte communication or a close familial or business relationship with the applicant." Id. at _ Table 1 Key Differences between Legislative and Evidentiary Zoning Hearings Legislative Evidentiary Notice of Both newspaper notice and mailed notice to owners and neighbors are Only notice to parties to the matter is required Hearings required. unless ordinance mandates otherwise. Speakers at Number of speakers, time for speakers can be reasonably Witnesses presenting testimony can be limited Hearings limited. to relevant evidence that is not repetitious. None is required; members are Substantial, competent, material evidence must be put in the record; witnesses are under oath, Evidence free to discuss issue outside hearing. subject to cross- examination; no discussion of the case outside the hearing is allowed. Findings None are required. Written findings of fact are required. Detailed record of testimony is required; clerk Records Regular minutes are satisfactory. should retain all exhibits during period of potential appeal. Table 2 Summary of Requirements for Mailed Notice of Proposed Zoning Classification Actions Triggered by: ironing classification action Sent to: Owner of parcel and abutting parcels, as shown on county tax listing How mailed: First class Exceptions: Not required for total rezonings of entire jurisdiction (but even here must be sent to any property that is put in less intensive zone) Verification:' Certification to governing board of mailing to be provided by person making the mailing - Popular Government Spring 1993 http:// ncinfo .iog.unc.edu /planning/pgsp93.htm 13. Note that a zoning text change that substantially changes the range of permitted uses in a district can have the same practical effect as a map change and in those instances may be covered. 14. Many of the modifications are of only temporary duration. This trend of local modification is continuing. Some thirteen bills were introduced in the 1993 General Assembly to provide mailed- notice exceptions to thirty-three local governments. A bill is also pending that would extend these alternatives to mailed notice to all local governments. 15. Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282 (1968). 16. Freeland, 273 N.C. at 457, 160 S.E.2d at 286. 17. Heaton v. City of Charlotte, 277 N.C. 506, 518, 178 S.E.2d 352, 359 -60 (1971). 18. Heaton, 277 N.C. at 518 -19, 178 S.E.2d at 360. See also Walker v. Town of Elkin, 254 N.C. 85, 118 S.E.2d 1 (1960); In re Issuance of CAMA Permit to Worthy, 82 N.C. App. 32, 345 S.E.2d 699 (1986). 19. Also, G.S. 160A -71(b 1) provides that regular and special meetings of the governing board may be recessed or adjourned to reconvene at a time and place certain (the comparable county provision, GS. 153A -40, contains a similar provision for regular county board meetings). G.S. 143- 318.12(b)(1) in the state's open meetings law provides that if the time and place for reconvening are set in the properly noticed original meeting, no additional public notice is required. 20. See George v. Town of Edenton, 294 N.C. 679, 242 S.E.2d 877 (1978); Nelson v. City of Burlington, 80 N.C. App. 285, 341 S.E.2d 739 (1986); Clark v. City of Charlotte, 66 N.C. App. 437, 311 S.E.2d 71 (1984). 21. Humble Oil & Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974); Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879 (1963). 22. Humble Oil & Refining Co., 284 N.C. at 470,202 S.E.2d at 137 (citations omitted). 23. See, e.g., Jarrell, 258 N.C. at 476, 128 S.E.2d at 879; Brummer v. Board of Adjustment, 81 N.C. App. 307, 343 S.E.2d 603, rev. denied, 318 N.C. 413, 349 S.E.2d 590 (1986). 24. Craver v. Board of Adjustment, 267 N.C. 40, 147 S.E.2d 599(1966); Burton v. New Hanover County Board of Adjustment, 49 N.C. App. 439, 271 S.E.2d 550, cert. denied, 302 N.C. 217, 276 S.E.2d 914 (1981); Carter v. Town of Chapel Hill, 14 N.C. App. 93, 187 S.E.2d 588, cert. denied, 281 N.C. 314, 188 S.E.2d 897(1972). 25. Robinhood Trails Neighbors v. Board of Adjustment, 44 N.C. App. 539, 261 S.E.2d 520, cert. denied, 299 N.C. 737, 267 S.E.2d 663 (1980). See also Rule 5.2, Rules of Professional Conduct of the North Carolina State Bar. This rule prohibits a lawyer from testifying as a witness in a case he or she is handling unless the testimony relates solely to an uncontested matter, is related to legal fees, or if refusal to testify would work a substantial hardship on the client because of the distinctive value of the lawyer in the particular case. 26. A standard oath may be used, such as, "Do you swear (or affirm) that the evidence you give shall be the truth, the whole truth, and nothing but the truth, so help you God ?" 27. Crump v. Board of Education, 326 N.C. 603, 392 S.E.2d 579 (1990). It is important to distinguish personal knowledge, which can be considered if disclosed, from personal bias, which disqualifies a member from participation. Personal bias is present if the member has a fixed opinion that is not susceptible to change regardless of the evidence presented. Also, in Rice Assoc. v. Town of Weaverville Bd. of Adjustment, 108 N.C. App. 346, 423 S.E.2d 519 (1992), the court held that participation of a member with bias does not invalidate the decision if the applicant is not entitled to a permit under any �0 February 22, 1999 TO: Orange County Zoning Board FROM: Anita Solomon, 2814 Butler Road, Chapel Hill, NC 27516 RE: Request for Zoning Atlas Amendment Z -01 -99 Armin Lieth p/q.F ;a97 j �- -- 1 I own the property immediately south of Mr. Lieth's properties. On the map, my property is the one where two creeks meet and then go up to Highway 54 in the center of the area labeled LC -1. I do not oppose the rezoning of the area labeled NC -2 on the map; in fact I welcome the availability of additional services in the area. I oppose the proposed LC -1 rezoning, first, because it is too close to my property, and secondly, because it will destroy a floodplain which is part of the Haw River Watershed and a creek that appears on the US Geological Survey map. The fact that my property is surrounded by the Haw River Watershed, where only a small percentage of the land can be used for building was a major factor in my decision to buy my property. I had every reason to expect that the area will basically remain a wilderness. The LC -1 zone, if enacted, will be only 350 feet from my property and will be at least partly within the Haw River Watershed Zone. The north half of my property and the south half of Mr. Lieth's properties are flooded most of the year, from September to May as well as for a short time after summer rains. In actuality, the two creeks on the map constantly flood and change course, and at the present time actually join on Mr. Lieth's property, not mine as shown on the map. There are many other creeks feeding in, some larger than the ones shown on the map. All of these creeks constantly dam themselves with leaves and sticks. More water actually enters the ground system than moves through the creek to Highway 54. This winter has not been typical. The area was unusually dry last Tuesday, but after approximately 1/2 inch of rain on Wednesday, there was sufficient water on the ground that I ruined a pair of shoes. This floodplain is probably critical to the aquifers for wells in the area. I know of two closeby wells that ran dry last summer, and there are probably more. I believe that any interference with this floodplain will cause many more wells to go dry. As you undoubtedly know, a second function of a floodplain is to prevent alot of runoff from hitting major watercourses at the same time. Interference with this floodplain or the creek might cause flooding further downstream -- in Terrell Creek and the Haw River. Moving now to the narrower LC -I area along the creek, the area is a deep bowl. The land begins to rise in the area labeled NC -2 on the map, such that there is a big slope down to the creek on 3 sides. I am submitting photos that attempt to show the slope down to the creek from the garden center to the west, the NC -2 property to the east, and the highway on the north. I estimate that the creek is piped about 40 feet under the highway. The slope down from the highway on the NC -2 property is also considerable; I would anticipate that Mr. Lieth will add landfill, which will make the slope down to the creek even greater. I understand that a creek on the US Geological Survey map must remain in its natural condition. I frankly can't imagine a desirable LC -1 usage of this property. If Mr. Lieth has thought of a particular commercial usage that would keep the floodplain and the creek intact, I would nevertheless be concerned that once a property is zoned LC -1 that it can be switched to any other LC -1 usage and the area would gradually be degraded by future owners. Beside the creek, near Highway 54, there a number of deep holes and crevices. I fell in a hole about 1 foot wide and at least 3 feet deep. These should not be sealed. Again, I think that more runoff from the slopes around the creek is entering the ground water aquifers than is entering the creek. I therefore request that the Zoning Board consider making the entire area along the creek up to Highway 54 part of the Haw River Watershed, so that a buffer alongside the creek can be required. Thank you for the opportunity to present my position. A ro t _ VC.�t 0&-4 4i4 0 W-T. 44 14, IWO, 4,t �a Aga Jr 'ZI 4,t �a Aga Jr