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HomeMy WebLinkAboutMinutes - 199505311 APPROVED 8/3./95 MINUTES ORANGE COUNTY BOARD OF COMMISSIONERS ORANGE COUNTY PLANNING BOARD AND CARRBORO BOARD OF ALDERMEN MAY 31, 1995 The Orange County Board of Commissioners, Orange County Planning Board and the Carrboro Board of Aldermen met in joint session on Wednesday, May 31, 1995 at 7:30 p.m. in the OWASA community meeting room, 400 Jones Ferry Road, Carrboro, North Carolina. COUNTY COMMISSIONERS PRESENT: Chair Moses Carey, Jr., and Commissioners William L. Crowther, Alice M. Gordon and Don Willhoit COUNTY COMMISSIONER ABSENT: Commissioner Stephen Halkiotis BOARD OF ALDERMEN PRESENT: Mayor Eleanor Kinnaird and members Jay Bryan, Jacquelyn Gist, Michael Nelson and Frances Shetley ORANGE COUNTY PLANNING BOARD: Chair William Waddell and members Paul Hoecke, Karen Barrows, Joan Jobsis, Elizabeth Walters, Cheryl Howie, Cherie Rosemond, Margaret Brown, Arnie Katz, Leo Allison and Larry Reid A. OPENING REMARKS FROM THE CHAIR Members of the two governing boards were introduced. B. PUBLIC CHARGE Chair Carey dispensed with the reading of the public charge. NOTE: ALL ITEMS WERE PRESENTED BY THE PLANNING BOARD CHAIR WILLIAM WADDELL ALL BACKGROUND INFORMATION IS IN THE PERMANENT AGENDA FILE IN THE CLERK'S OFFICE. C. ORANGE COUNTY BOARD OF COMMISSIONERS/CARRBORO BOARD OF ALDERMEN PUBLIC HEARING a) Z-4-95 Donald Keith Godwin 1. Amendment to Carrboro Zoninq Map and Orange County Zoning Atlas Planner Mary Willis presented this item so that public comment could be received. The rezoning was requested by Donald Keith Godwin for property owned by Thomas Walker and Gail Harris. This request involves an amendment to both the Orange County Zoning Atlas and the Carrboro Zoning Map and will need approval of both the Orange County Board of County Commissioners and the Carrboro Board of Aldermen. Ms. Willis outlined the process that will be followed. Lisa Pruitt, Carrboro Planning Department, presented the staff report and recommendation as included in the agenda abstract. The total area is 13.539 acres and is located on the north side of Tallyho Trail and west of Rogers Road. The petitioner is seeking a change in zoning to Carrboro R-20, Residential with 20,000 square feet minimum lot size which allows a maximum density of 2.1 dwelling units per acre. 2 THERE WERE NO COMMENTS OR QUESTIONS FROM MEMBERS OF THE TWO GOVERNING BOARDS OR THE ORANGE COUNTY PLANNING BOARD AT THIS TIME PUBLIC COMMENTS Gloria Faley, member of Stop Overcrowding Schools (SOS), said that while this is a small area of land, this is a reminder again that when it comes to school overcrowding, each drop is too much. The bucket is overflowing and they will either need to build a bigger bucket or lose more water. She does not want to lose a child. She asked if this rezoning is really worth it. Since a plan to correct the overcrowding has not yet been adopted and implemented, she asked if rezoning to a higher density is really necessary and wise to do at this time. She asked that the governing boards make the right decision for all of the community. Donald Godwin, who requested this rezoning, said that during the year long process the owners thought that this property was in a Transitional II zoning area instead of Transitional I. The density on this property will consist of 15 to 18 units. This is the last remaining Transitional I tract on Rogers Road with everything north of this area Transitional II. Nancy Salmon, who lives in the Highlands development downhill from the property, said she is against this request. Her motivation is primarily personal. She fears that her house will be flooded by stormwater runoff from the property in question. Her lot has a large flat side yard bounded at the far edge by a drainage gully which leads to a pipe culvert that runs under the road. If the culvert was not there or blocked, Claymore Road would act as a nine or ten foot dam to the flow of stormwater runoff. In the late summer of 1993 after Highland Meadows was paved and drainage ditches were constructed, a very heavy rain caused their side yard to be covered almost entirely by water. They have talked with the engineer of the Highland and Highland Meadows developments about how the drainage channel can be reworked to provide a greater runoff capacity and greater protection for their home, but so far no changes have been made. She invited the members of the governing boards to her home to see the situation. She asked for stormwater protection for the homes down the hill from this proposed development. On behalf of the schools and S.O.S., she is against any increase in residential density. She realizes that this proposal is not for many houses. However, since the schools are over capacity for existing residents, she sees no excuse for increased residential densities of any size. She said that the lots in the Highlands are approximately 1/2 acre lots. In answer to a question from Bill Waddell, Ms. Salmon said that the only suggestions made to divert the stormwater is to have a wider and deeper channel. The flooding is caused by the speed of the runoff which is affected by impervious surfaces, clearing, etc. They have lived there three years and the flooding started with the development of Highland Meadows. Mr. Godwin said that in talking with staff about this proposed development, there are no perennial streams of any type on this property or any channels of any sort except possibly in the lower area where they intend to provide a buffer in their final plan. They have not reached the stage of doing any engineering. This is purely a rezoning at this time. 3 He does understand Ms. Salmon's concern. Another concern is that there is an older structure on the property which a number of neighbors are afraid of because of the children playing in and around it. He will donate this house or remove it from the property. Commissioner Willhoit asked about the provision of water and sewer and was told by Carrboro's Planning Director Roy Wiliford that the OWASA line goes behind the low area where the pump station is located. OWASA will be running a sewer line out to serve the Hogan development and from there it will go to Stacy Heights and probably from that point over to this property being rezoned. Mr. Godwin said that currently there is a service directly across the street from this property where they will tap on. He will be required to continue water service in a 12-inch main throughout this property. Commissioner Willhoit asked about Carrboro's process for stormwater management or a remedy for any problems created by previous development. Mr. Wiliford said that they do have a buffer requirement for existing subdivisions that the Highlands was approved under as well as Highland Meadows. That is a 15-foot buffer on both sides of the stream which is meant to keep the homes out of the immediate channel area. Beyond that, they require that stormwater management calculations be done for each subdivision to show that the rate of runoff will be controlled so that it is no greater after the development than before. The rate of runoff is a performance standard that must be met. There is no remedy for a problem that happened before this time. Karen Barrows asked if this area was included in the small area planning process. Roy Wiliford said that the small area planning process would be a policy process where the work group will make recommendations to the Board of Aldermen which will eventually result in zoning for that area. The town has a conditional use permit which they use to review and approve specific developments provided they meet the zoning regulations. A motion was made by Commissioner Gordon, seconded by Commissioner Crowther to refer the proposed rezoning to Carrboro and after action by the Carrboro Board of Aldermen, refer the proposed rezoning to the Orange County Planning Board meeting of July 17, 1995 for a recommendation to be presented to the Orange County Board of County Commissioners no sooner than August 3, 1995. VOTE: UNANIMOUS D. ORANGE COUNTY BOARD OF COMMISSIONERS PUBLIC HEARING 1. Amendments to the Orange County Zoning Atlas a) Z-1-95 James Travis Rives Planner Jim Hinkley presented information on this item. The proposed zoning lot is located on 18.7 acres owned by James Travis Rives at 1134 White Cross Road. The zoning designation requested is for AS Agricultural Service. Normally, the maximum amount of land zoned for agricultural services purposes is no more than 10 acres. All surrounding properties lie within Orange County's jurisdiction and are zoned AR Agricultural-Residential. 4 THERE WERE NO QUESTIONS OR COMMENTS. b) Z-2-95 Robert D. McBroom Jim Hinkley presented information on this item. The proposed zoning lot is located on the 5-acre tract owned by Robert D. McBroom at 1709 NC 86 North approximately 1,600 feet north of the southern entrance to Coleman Loop Road. The lot proposed for rezoning contains approximately 2.98 acres which is currently zoned AR Agricultural- Residential. The zoning designation requested is for I-1 Light Industrial. Access to the proposed zoning lot is from the east side of NC 86 North. The proposed rezoning would be consistent with the Comprehensive Plan. COMMENTS OR QUESTIONS FROM THE BOARD OF COUNTY COMMISSIONERS OR PLANNING BOARD Commissioner Gordon asked about other businesses in the area and Jim Hinkley said that he is only aware of Major Business Forms. Commissioner Crowther asked about the business license mentioned in the application and Mr. Hinkley said that Mr. McBroom was asked to renew his business license and that is when they discovered that he was in violation of the Zoning Ordinance and the only way it could be brought into compliance was to rezone the property. Commissioner Willhoit asked what kind of provisions are there for setbacks and if there are further rezonings what kind of provisions are there for adequate buffers, right-of-way or space available for a turn lane. Jim Hinkley said that the minimum requirements for this type of use in the comprehensive plan is that the road needs to be a rural minor collector and N.C. 86 meets that requirement. The frontage required for an I-1 zone is 200 feet. Commissioner Willhoit questioned if all the property in that area was developed as industrial type property, would they be served by regular driveway cuts. Jim Hinkley said yes. Also, there is no restriction ~n the amount of acreage that may be rezoned. Planner Mary Willis explained that in the Rural Industrial activity node there is not an acreage limitation. There is a radius limitation which she believes in a quarter mile from the intersection. In the Rural Commercial activity node there are acreage limitations. MOTION FOR BOTH D-1 (a) (b) A motion was made by Chair Carey, seconded by Commissioner Willhoit to refer items D-1 (a) and (b) to the Planning Board for a recommendation to be returned to the Board of Commissioners no sooner than August 3, 1995. VOTE: UNANIMOUS c) Z-3-95 Marion He r Wilson, Jr. and Na c; Wilson Planner Mary Willis presented information on this item as contained in the agenda. In summary, on November 2, 1993, the Board of County Commissioners approved the rezoning of a .92 acre portion of a 6- acre lot located on the west side of Ferguson Road between Old Greensboro Highway and Jones Ferry Road, from Rural Buffer to Existing Commercial. This was done on the basis that it was determined that the operation had 5 been in place prior to the adoption of zoning and should have been zoned EC-5 Existing Commercial at the time the township was zoned. This decision to rezone was appealed to Superior Court. The Court ruled that the evidence submitted during the public hearing was insufficient to justify the rezoning of the property and sent the case back to the Board of County Commissioners for further consideration. The purpose of this hearing is to provide an opportunity for any new information to be submitted regarding the use of property when the township was zoned in September, 1981. The staff does not have a recommendation. If based on new evidence received at this hearing, the Board of County Commissioners find that there was a commercial use allowed in the zoning district and that use existed on the property September 2, 1981, then the Zoning Officer would recommend that the current zoning of EC-5 remain. If there is not new evidence presented at this hearing that would show that the commercial use was in place on this property at that time, the staff recommends that the property be rezoned back to Rural Buffer. County Attorney Geoffrey Gledhill clarified that the Board can consider the information that is in this packet even though the Court deemed it to be insufficient. However, the Board will need additional information on which to base their decision. THERE WERE NO COMMENTS OR QUESTIONS FROM MEMBERS OF THE BOARD OF COUNTY COMMISSIONERS OR THE PLANNING BOARD NOTE: THE VERBATIM TRANSCRIPT OF THE FOLLOWING COMMENTS IS IN THE PERMANENT AGENDA FILE IN THE CLERK'S OFFICE. THE COMMENTS LISTED BELOW ARE SUMMARIZED. Marion Henry Wilson, Jr., present owner of the property, said that the business they run is not a salvage yard but a small automotive repair shop. He presented for the record pictures of his property, the property adjacent to his and pictures of other businesses in the area. Mr. Daryl Farrell, next door neighbor, said he owns the land on the right side of Mr. Wilson. Personally, he does not have a problem with this business being next to him. He feels Mr. Wilson is a very good neighbor and conducts his business in a matter which he thinks he should. In answer to a question, Mr. Farrell said he purchased his land in March, 1994. He also responded to another question saying that he had knowledge of Mr. Combs prior to graduating from high school. He had been out there looking for old parts when he was in high school and he remembered talking to Mr. Combs. He did not have his parts but he thinks they were working on cars back then. This was back in 1979. Larry Reid asked for clarification in that the attorney said that they have to have new evidence for the rezoning situation. He asked if they were looking for receipts during the years 1980 and 1981 to prove that there was a business actually being conducted there. He stands firm that there was a business there. He is not sure if it was being conducted in a way that it is perceived to be conducted today. But if it is a matter of digging up receipts, then he believes he can do that to verify that Combs did some work on a vehicle of his. 6 Geof Gledhill clarified that any new evidence can be considered including receipts or anything else that proves that there was an existing commercial use on this property prior to 1981. Karen Barrows asked for clarification and Geof Gledhill said that the EC-5 zoning district has to do with commercial permitted uses. There was no evidence, for example, that a bank, financial institution, etc. existed and since there is no evidence that any of these uses existed, then this property cannot be zoned EC-5. Larry Reid said that the argument that came before the Planning Board was that it was not presented correctly. He understood that there had to be a business existing there at the time the area was zoned. He did not understand it had to be a permitted use specified for the EC-5 area. Geof Gledhill said that if the claim is that there was a body shop there, then there must be evidence that there was an auto body shop there. If the claim is that there was a bank there, then there must be evidence that there was a bank there. Mr. Reid's testimony last time was not sufficient and there was not any other evidence to prove what was there. A salvage shop is not a body shop. In answer to a question from Chair Carey, Geof Gledhill indicated he does not know how storage of goods is defined in the ordinance. The use table was developed in 1967 and the Zoning Ordinance was codified in 1981 and it was changed somewhat. It was not developed by going around to see what uses existed. Grainger Barrett, Counsel who argued this case for the people that made the appeal, asked to reserve the right to come back. He said he directed the court's attention to a provision in the Ordinance that expressly said that uses which are not permitted in a particular district are expressly found to be incompatible with that district and the evidence before the court basically resolved that this business was a salvage yard which is not permitted in the EC-5 district. The judge said that taking parts off of a car is a junkyard use and therefore he sent it back here tonight to find out if there was other evidence that Mr. Wilson and Mr. Combs could present on some use that was permitted in the EC-5 district. Donald Wayne Combs, previous owner of the property, said he sold the property to Mr. Henry Wilson. He bought the property from Mr. J. B. Martin and at one time he worked for Mr. J. B. Martin. J. B. Martin owned the property and had cars out there, restored wrecked cars and worked on cars. When he owned the property he did away with the salvage yard and had it rezoned to commercial. He sold it to Mr. Wilson. There were cars worked on and stored there before there was any zoning in the township. In answer to a question from Commissioner Willhoit, Mr. Combs said he sold the property two years ago. In answer to a question from William Waddell, he said that there were cars parked there that were wrecked. There were motors taken out of cars and put in other cars and fenders taken off of cars and put on other cars as well as rearends, transmissions, etc. Mr. Waddell asked if there was any recollection of Mr. Combs taking parts off of cars that were there and transporting parts to another place and Mr. Combs said he put the parts on right there. Mr. Martin also had another little garage on Farrington Road where he worked on cars. If one was out there wrecked and he needed the motor, he would go out there and pull the engine out of the wrecked car and put it in another car and at that time he was working for Mr. Martin. That was in 1976 or 1977. Commissioner Crowther asked if Mr. Martin received money for this and Mr. Combs said yes. Commissioner Crowther asked if there were any receipts available. Mr. Combs said that Mr. Martin is dead and he has no idea. Commissioner Crowther asked if Mr. Martin had a business license and Mr. Combs did not know. Mr. Smith, attorney for Mr. Wilson asked if they used cutting tools to cut apart cars and Mr. Combs said yes. Mr. Combs was asked if he had receipts and records when he owned the business and he said yes. Mr. Robert Smith, attorney for Mr. Wilson, said he was at the public hearing at which the property was eventually rezoned for Mr. Combs. At that hearing they focused basically on the salvage yard because that is what Mr. Combs was doing at the time. He honestly felt that there was sufficient evidence that cars had also been worked on but obviously the judge felt different. Part of the problem is that there is an unusual set of definitions in the Zoning Ordinance. There is a category called motor vehicle maintenance and repair which sounds like the more traditional working on cars but is somewhat defined more like a body shop. There is another category in the Zoning Ordinance which sounds more like the traditional working on cars which says motor vehicle repair garage which includes major mechanical repairs, engine overhaul and transmission work. For some reason, that is not in the permitted use table. He feels that it was probably intended to be part of the EC-5 but it was not. Mr. Reid has mentioned that he may have receipts which may prove some of this activity. He also talked with Mr. Reid's brother who stated he was also familiar with this property. He will submit testimony later either by affidavit or letter. Larry Reid said that his brother Michael and a friend David Nickinson both had hotrods or race cars and Mr. Martin's son was also a race driver and they swapped parts pulling parts off of one car and putting on another. He is almost positive that he has the receipts. He had several parts replaced on his car. He said that he guarantees that money changed hands. He was asked if his brother could have swapped a part and Mr. Reid said no. He paid for some parts but he is not sure which parts. Barton (Buz) Lloyd said that he owns land adjoining to what was then Mr. Combs' operation. He feels there are two or three basic issues. One is the definitional issue, namely, did the activities alleged to have taken place on the property up to and since 1981 constitute what is required to justify an EC-5 zoning. Before Mr. Wilson purchased the property, Mr. Lloyd made it clear to the real estate agent who listed this property that he intended to appeal the rezoning decision. His concern is that the piece of property that he developed and invested in adjoins a piece of land which, by consensus of an attorney representing either Mr. Combs or the previous owner Mr. Martin and the staff of the Planning Department of Orange County, was a nonconforming use. He was motivated to file the complaint only when Mr. Combs clear-cut an additional acre of land and through a barter arrangement had the topsoil striped in return 8 for the grading and clearing of the land and proceeded to fill up this additional acre with more motor vehicles. He summarized some of his concerns with the original rezoning which was based largely on the testimony from Mr. Combs. It is in the record from previous hearings and meetings that Mr. Combs operated his business lacking the appropriate licensing to do so. To the best of his knowledge, he never filed to pay a business tax in Orange County. There is no public record that he operated a business there at all. Mr. Lloyd mentioned a building permit in which Mr. Combs stated that the structure was estimated to cost $2,000. Mr. Lloyd said that he hopes all parties concerned, the Planning Board and the Commissioners will remain focused on the issues and the definitional issues and not get sidetracked by the pleas for personal sympathy. In answer to a question from a Planning Board member, Mr. Lloyd said he was not sure he discussed the uses in great detail in the discussion he had with Mr. Collins and Mr. Gledhill. Although he thinks the presumption among them was that they were talking about something that would allow continuation of Mr. Wilson's business, what they focused on were possibilities that would allow Wilson to continue the business for a finite period of time and at the end of that time, the use would stop. Geof Gledhill said, so that everyone would know the context in which these discussions took place, this case was referred to arbitration and mediation. They spent about a half day in mediation in an attempt to reach an agreement on how to resolve this situation. Mr. Lloyd's recollection of the offer is accurate. It was to allow Mr. Wilson to continue his present use of his property for some period of time. Geof Gledhill said that any proposed mediation agreement would have had to come back to the Board of County Commissioners for consideration if there had been an agreement and there wasn't. It has nothing to do with whether the property ought to be or ought not to be rezoned. Grainger Barrett said that the context of this basic issue is a question of whether there was a manifest error in the Zoning Ordinance when zoning was applied to this township back in 1981. He introduced into the record a copy of the building permit application of 1990 which Mr. Lloyd referred to above. He outlined the events that led up to the time the building permit was issued. He also introduced into evidence certain pages of a deposition of Mr. Wilson in which he states four or five times that he discussed before the rezoning decision with Mr. Combs the sale of this property. In his testimony at the Planning Board meeting, he said this property was used for storing junked vehicles. That is all he said this property was ever used for. He thinks that this kind of testimony is less than substantial when it is given to the Board of County Commissioners in this context tonight. In Mr. Reid's testimony, the reference he makes are that all he ever saw out there were junked cars. He makes clear on page 87 that the actual garage was on Mt. Carmel Church Road where parts for the repair of cars came from the area in question. He agrees with Mr. Smith that there is a definitional issue that the Board will have to confront. He contrasted the definition of a junk yard with that of a body shop. He suggested that working on hotrods was a hobby and not a commercial activity of the type being talked about. 9 Commissioner Willhoit made reference to page 101 of the agenda and the affidavit signed by Mr. Martin in 1984, where he says he stored numerous used junked vehicles on the six acres for the purpose of repairing vehicles and asked for clarification on how that fits. Geof Gledhill said that Judge Stevens' view was that it did not provide evidence that there was the type of work being done on this property. The problem with nonconforming use is complicated. There cannot be a nonconforming junkyard use because under Orange County's Zoning Ordinance, a junkyard is a special use and Orange County does not recognize special uses as nonconforming. Therefore, there is no way to make this use nonconforming under the County's Zoning Ordinance. Mr. Barton Lloyd presented aerial photographs taken of the site at various dates. The first three show no motor vehicles and the last two or three show that there were motor vehicles on the property. He submitted these photographs into the public record. MOTION: A motion was made by Commissioner Crowther, seconded by Chair Carey to refer the proposed Zoning Atlas amendment to the Planning Board for a recommendation to be returned to the Board of County Commissioners no sooner than August 3, 1995. VOTE: UNANIMOUS d) Z-5-95 Piedmont Quality Electric Planner Emily Cameron presented information on this item. The property is located in Cedar Grove Township at the southeast corner of NC Highway 86 North and Walnut Grove Church Road. Adjacent land uses include a County-operated solid waste convenience center, a store zoned Neighborhood Commercial, residential and agricultural land. The County proposes to rezone one acre to Neighborhood Commercial to correct an error in the Zoning Atlas which was discovered by the Planning Staff on April 26, 1995. THERE WERE NO COMMENTS OR QUESTIONS A motion was made by Chair Carey, seconded by Commissioner Crowther to refer this proposed Zoning Atlas amendment to the Planning Board for a recommendation to be returned to the Board of County Commissioners no sooner than the next available Board of Commissioners meeting following the Planning Board recommendation. VOTE: UNANIMOUS 2. Amendments to the Orange County Zoning Ordinance a) Article 8.2 Special Uses Information on this item was presented by Planner Mary Willis. The proposed amendment was initiated and drafted by the County Attorney after reviewing several recent appeals of the Board of Adjustment decisions. The proposed amendment clarifies that the applicant bears the burden of proof to show that a proposed Special Use is in harmony with the surrounding area, and that those opposing approval of a Special Use have 10 the burden of proof in establishing that the use does not satisfy approval requirements. THERE WERE NO COMMENTS OR QUESTIONS A motion was made by Chair Carey, seconded by Commissioner Crowther to refer the proposed amendment to the Planning Board for a recommendation to be returned to the Board of Commissioners no sooner than August 3, 1995. VOTE: UNANIMOUS D . ADJOURNMENT With no further items for the boards to consider, Chair Carey adjourned the meeting. The next regular meeting of the Board of County Commissioners will be on Monday, June 5, 1995 at 7:30 at the Orange Grove Community Center in Bingham Township. Moses Carey, Jr., Chair Beverly A. Blythe, Clerk