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HomeMy WebLinkAboutORD-2012-039 Ordinance Amending the Zoning Atlas - Rezoning and Class A Special Use Permit Modification – Spence Dickinson Ordinance #: 2012-039 AN ORDINANCE AMENDING THE ORANGE COUNTY ZONING ATLAS WHEREAS, Spence Dickinson has initiated an amendment to the Orange County Zoning Atlas, as established in Section 1.2 of the Orange County Unified Development Ordinance (UDO), to rezone a parcel of undeveloped real property, approximately 4 acres in area, located north of intersection of Blackwood Mountain Road (SR 2258) and Pathway Court: From: Rural Buffer(RB) and Planned Development Housing Rural Residential (PD-H-R1) To: Rural Buffer(RB) and, WHEREAS, the parcels are further identified through the following legal description: BEGINNING: at an iron pipe, the north west corner of the Common Land, Heartwood at Blackwood Mtn., Phase I as recorded in Plat Book 58 Page 151, Orange County Registry, said point being also in the center line of Pathway Court, a 50' private road right-of-way as recorded in Plat Book 53 Page 172, OCR; thence with the center line of Pathway Court, a curve to the left with a radius of 192.00', a length of 132.14' to an iron pipe; thence a curve to the left with a radius of 125.00', a length of 71.99' to a point; thence North 74 degrees, 01 minutes, 56 seconds West 53.29' to an iron pipe in the center line of Pathway Court and in the center line of a 20' septic easement as shown on a plat recorded in Plat Book 90 Page 181, OCR; thence with the center line of said easement, North 08 degrees, 38 minutes, 57 seconds East 147.30' to an iron pipe; thence North 23 degrees, 01 minutes, 18 seconds West 107.40' to an iron pipe; thence North 78 degrees, 01 minutes, 27 seconds East 219.70' to an iron pipe; thence North 78 degrees, 00 minutes, 32 seconds West 89.00' to an iron pipe in the east right-of-way of the aforementioned Pathway Court; thence North 06 degrees, 48 minutes, 34 seconds East 160.00' to an iron pipe; thence South 78 degrees, 00 minutes, 56 seconds East 157.88' to an iron pipe; thence North 06 degrees, 48 minutes, 34 seconds East 241.88' to an iron pipe in the line of the Waldorf Educational Association of North Carolina; thence with the Waldorf property South 83 degrees, 11 minutes, 31 seconds East 200.00' to an iron pipe; thence with Waldorf property South 06 degrees, 48 minutes, 34 seconds West 419.97' to an iron pipe; thence South 83 degrees, 11 minutes, 26 seconds East 116.40' to an iron pipe; thence North 69 degrees 38 minutes 10 seconds East 102.48' to an iron pipe in the Waldorf line, the north west corner of the Spence Dickinson property as recorded in Plat Book 61 Page 123, OCR; thence with the Dickinson property South 05 degrees, 02 minutes, 44 seconds West 440.11' to an iron pipe in the north line of the aforementioned Common Land, Heartwood at Blackwood Mtn., Phase I; thence North 78 degrees, 11 minutes, 22 seconds West 44.45' to the point and place of beginning and being all of Lot 31, Heartwood at Blackwood Mtn., Phase II as recorded in Plat Book 90 Page 181, and containing 4.003 Acres, more or less. and WHEREAS, the requirements of Section 2.8 of the Unified Development Ordinance (UDO) have been deemed complete, and WHEREAS, the Board has found the proposed zoning atlas amendment to be reasonably necessary to promote the public health, safety, and general welfare. BE IT ORDAINED by the Board of Commissioners of Orange County that the Orange County Zoning Atlas is hereby amended to rezone the aforementioned parcel to Rural Buffer (RB) consistent with the applicant's request. BE IT FURTHER ORDAINED THAT this ordinance be placed in the book of published ordinances and that this ordinance is effective upon its adoption. Upon motion of mi oner seconded by Com issioner the foregoing ordinance was adopted this day of , 2012. I, Donna S. Baker, Clerk to the Board of Commissioners for Orange County, DO HEREBY CERTIFY that the fo going is a true copy of so much of the proceedings of said Board at a meeting held on , 2012 as relates in any way to the adoption of the foregoing and that said proceedings are recorded in the minutes of the said Board. WITN e nd and the seal of said County, this day of VJWU�,., 201 ®� e t S ° Clerk to a Board of Commissioners 9. /F--/ z 6. Public Hearings a. Rezoning and Class A Special Use Permit Modification — Spence Dickinson The Board received the Planning Board recommendation, closed the public hearing, and considered a decision on a request submitted by Mr. Spence Dickinson to rezone a 4.003 acre parcel of property to Rural Buffer and modify an existing Class A Special Use Permit (hereafter 'SUP') for the Heartwood at Blackwood Mountain Planned Development by removing the subject property from its provisions. Chair Pelissier explained the purpose of the item is to receive the Planning Board recommendation for Spence Dickinson. Michael Harvey: Good evening. Tonight's request is to receive the Planning Board recommendation, close the public hearing, make a decision on the request submitted by Mr. Spence Dickinson to rezone an approximately four-acre parcel of property; to rezone the parcel of property from Rural Buffer to Planned Development Housing and remove this parcel from the confines of the existing Class A Special Use Permit for the Parkwood at Blackwood Mountain subdivision. As part of the attachments for the siting, you have the July 11, 2012 Planning Board abstract, the excerpt from the approved May 290' Quarterly Public Hearing notes; an excerpt from the approved July 11, 2012 Planning Board regular minutes; responses from the applicant regarding conditions associated with this project. In Attachment 5, the Planning Board recommended the Findings of Fact. Attachment 6 is an Ordinance Amending the Orange County Zoning Atlas. Attachment 7 is an Ordinance Denying an Amendment to the Orange County Zoning Atlas. Attachment 8 is a Resolution of Consistency for the 2030 Comprehensive Plan. Attachment 9 is a Resolution of Inconsistency for the 2030 Comprehensive Plan. Chair Pelissier declared the public hearing re-convened and asked staff to make their presentation. Michael Harvey: You also have a script that was produced by staff, providing you with an outline of the actions that staff will be taking this evening and to aid you in making your motions. Please remember that this is a two-sphered process. You're going to be taking action of modification to a Class A Special Use Permit, specifically removing this lot as shown on the overhead projector from the confines of an existing Class A Special Use Permit. The second action you're going to take this evening is a legislative action to rezone the subject property to Rural Buffer. As you will remember from meetings past, we have had a new procedure that we had to follow as a result of the State Supreme Court decision on rezoning. Previously, we had combined Statements of Consistency with the Comprehensive Plan for the Ordinance Amending the Zoning Atlas. According to a recent State Supreme Court case, we can no longer do that, which is why you now have two attachments. In this case, I am referring to Attachment 6 and Attachment 8. Attachment 8 states that you are adopting outlining how this project is consistent with the 2030 Comprehensive Plan. Please remember that previous to this, or previous to the last meeting when we looked at the Eno Economic Development District, we put this information in one central resolution. We now have to split it out. The cadence for adoption is also specified by the State Supreme Court and that you must adopt an ordinance amending the Orange County Zoning Atlas first, and then adopt a Statement of Consistency to the Comprehensive Plan. Having said that, what I would like to do this evening is briefly review with you the actions of the Planning Board. As you will note from Attachment 5 of your abstract packet, the Planning Board went through the Findings of Fact and determined that the applicant had met his burden with respect to compliance with the individual requirements of the Orange County Unified Development Ordinance for the approval of this request. They also made specific Findings of Fact on the compliance with Section 5.3.2 (8) 2 a, b, and c, with respect to this project's compliance with the Comprehensive Plan, with respect to this proposed amendment would not have a negative impact on adjacent property, and last but not least, the applicant had met his burden of proof that the proposal was consistent with surrounding land use. The Planning Board is recommending unanimous approval of this process and of the proposed rezoning. The applicant specifically in Attachment 4 has indicated his support for the conditions with one exception —the applicant requests that that the Board not impose a condition about the wooded access from this lot of the Pathway Court. As you will recall from the Quarterly Public Hearing, and this is detailed within Attachment 2 of your abstract packet, concerns were expressed by adjacent property owners about the potential for a road or a drive access from this property and ultimately the existing camp property to the east operated by Mr. Dickinson onto Pathway Court. Staff recommended the imposition of the condition at that time. Staff still recommends the imposition of this condition. The applicant respectfully requested in writing that you not impose it. Unless you have any questions, that is the end of my presentation at this time. Commissioner Jacobs: To the point he just made, do you feel that adequately addressed the concerns of Mr. Lamb that are on page 33 of our packet regarding the impact on the Heartwood development? Michael Harvey: I feel it does and with all due respect to Mr. Dickinson, I take a different viewpoint of why the condition was imposed. As this parcel of property is being removed from the confines of the Heartwood at Blackwood Special Use Permit and is not subject to the conditions of the Special Use Permit or the imposition of fees or other actions by the Heartwood Homeowners Association that is responsible for maintaining Pathway Court, it is my considered opinion that it would not be reasonable for us to allow there to be access onto Pathway Court by the adjacent camp, even though the property has frontage on it and even though there are other lots that were approved after the issuance of the Special Use Permit that have access on Pathway as well. I would argue that the County in hindsight, should have required an amendment to the Special Use Permit to allow for further subdivision activity to occur in the 80's and early 90's, which it did not. We do not need to perpetuate the same mistake, as this property has been removed from the confines and SUP and not subject to the local homeowners control and purview, it is my considered opinion that it should not be allowed to have access on a street that is maintained by that homeowners association. Commissioner Jacobs: Just in reading what Mr. Lamb said, I thought he was concerned that the parcel be restricted for use for the septic field and it says, "and no other activities or services or hindrances along the border of the community." Michael Harvey: As I articulated that evening and spoke with Mr. Lamb later, it is my position that Mr. Dickinson does have the right to go back to the Orange County Board of Adjustment, which is his plan, in seeking expansion of existing camp retreat center that this property has the ability to utilize for other purposes than just a septic system, allowing for expansion of the existing camp retreat center, and I don't feel it necessary at this special use permit process hinder that ability with the imposition of additional conditions on the use of this parcel. The Board of Adjustment is going to go through a similar public hearing process where adjacent property owners would be notified and allowed to present the case on why that specific land uses should not be allowed. I also don't think there's been any evidence submitted into the record at the Quarterly Public Hearing or at the Planning Board meeting that#1, any proposed redevelopment of this will have a negative impact on adjacent lots, and#2, even if there was it would not germane to this request as this request is intended to solely amend the existing Heartwood SUP to remove this lot. I don't believe it's essential for this Board to impose any additional restrictions other than what the ordinance would impose as part of what's customary. Chair Pelissier: As I understand it, the only other person who would speak would be Spence Dickinson. John Roberts: If I can address that. This portion of the hearing, the specific purpose, if you allow Mr. Dickinson to speak, you cannot consider what he says as part of your decision making. I recommend that he not be permitted. What his position is has been put in the record by Mr. Harvey, but if you allow him to speak to this subject now, what you are in effect doing is accepting additional testimony in a quasi-judicial hearing, which could open the Board's decision up to be overturned in the event of an appeal to Superior Court. Chair Pelissier: Are they any other questions of staff? Once we close the public hearing, we can no longer ask any questions of staff. I just want to make sure there are no other questions. Commissioner Gordon: I just want to make sure we understood the status of the condition that staff recommended that Mr. Dickinson would like removed. Is it your contention and do I understand it that we impose this condition even though he doesn't agree? Michael Harvey: Yes ma'am. The condition is designed to address a community concern as well as preserving the integrity of the SUP process without allowing for additional use of the roadway that was never envisioned in the SUP as originally approved by this Board. And I'm talking about the Heartwood Special Use Permit. Commissioner Gordon: So he does not have to agree. There are other situations in which the person would have to agree, but not this one. Michael Harvey: Correct. Commissioner Yuhasz: Do I understand this correctly that if we impose this condition we are then creating a landlocked parcel? Michael Harvey: No sir. As articulated and testified during the Quarterly Public Hearing, Mr. Dickinson is going to be recombining this parcel with a parcel to the east, this camp retreat center property, which has access on Millhouse Road. It will become one large parcel of property designed to support and promote the continued operation of a legally permitted camp retreat center that is operating under the current Class B Special Use Permit issued under the Orange County Board of Adjustment. Commissioner Yuhasz: I understand that's the intent, but that won't happen until after this decision is made. Michael Harvey: That is also a correct statement. Commissioner Yuhasz: And what we are doing, just to be clear, we are imposing a condition not on this property, but on the Special Use Permit that—essentially we are imposing a condition on the remainder of the lots, not on this lot. Michael Harvey: What you're essentially doing is caused the existing Special Use Permit to be modified to remove this lot from the confines and regulatory requirement of that permit. You are also stipulating that this particular parcel of property, as it currently exists and as it will exist when recombined with the parcel to the east, will not be allowed to have any drive access onto Pathway Court. Commissioner Yuhasz: I just want to be clear on where we are imposing that condition. I don't know whether, in a general rezoning, we are allowed to impose conditions like that. Michael Harvey: You're not imposing as part of the general rezoning, you're imposing as part of the special use permit line. Commissioner Yuhasz: I just want to be clear, we're imposing it on the special use permit that sits on the rest of the lots and not on this particular one. Michael Harvey: Correct. A motion was made by Commissioner Hemminger, seconded by Commissioner McKee to close the public hearing. NOTE — once this is done staff cannot answer questions or provide additional detail. VOTE: UNANIMOUS The BOCC then took action on the Special Use Permit findings of fact. The findings of fact have been organized per relevant UDO section to aid in making motions to approve or deny. The cadence on taking action was as follows: A motion was made by Commissioner Hemminger, seconded by Commissioner Yuhasz to affirm the recommendation of the Planning Board concerning the application's compliance with the provisions of Section(s) 2.2 and 2.7.3 of the Orange County Unified Development Ordinance, as detailed on pages 39 through 41 of the abstract package. VOTE: UNANIMOUS A motion was made by Commissioner Hemminger, seconded by Commissioner McKee to affirm the recommendation of the Planning Board concerning the application's compliance with the provisions of Section 2.7.5 of the Orange County Unified Development Ordinance, as detailed on page 42 of the abstract package. VOTE: UNANIMOUS A motion was made by Commissioner Hemminger, seconded by Commissioner Yuhasz to affirm the recommendation of the Planning Board concerning the application's compliance with the provisions of Section(s) 3.3 and 6.3 of the Orange County Unified Development Ordinance, as detailed on pages 43 through 46 of the abstract package. VOTE: UNANIMOUS A motion was made by Commissioner McKee, seconded by Commissioner Hemminger to affirm the recommendation of the Planning Board concerning the application's compliance with the provisions of Section 5.3.2 of the Orange County Unified Development Ordinance, as detailed on pages 47 through 48 of the abstract package. VOTE: UNANIMOUS A motion was made by Commissioner McKee, seconded by Commissioner Hemminger that there is sufficient evidence in the record that complies with Section 5.3.2 (A) (2) of the Ordinance in that the use will maintain and promote the public health, safety, and general welfare if located where proposed in the development and operated as the plan is submitted. VOTE: UNANIMOUS A motion was made by Commissioner, McKee seconded by Commissioner Yuhasz finding there is sufficient evidence in the record the project complies with Section 5.3.2 (A) (2) (a) of the UDO in that the use will maintain and promote the public health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted. This motion is based on competent material and evidence entered into the record of these proceedings, including: • Attachment 1, the application, of the public hearing abstract, • Staff and applicant testimony from the Public Hearing, • Abstracts from the May 29, 2012 Quarterly Public Hearing and July 11, 2012 Planning Board, • Staff findings as discussed during the July 11, 2012 Planning Board regular meeting, and • A lack of competent material and substantial evidence in the form of testimony, exhibits, documents, plans, or other materials entered into the record indicating the applicant had not met their burden in accordance with Section 5.3.2 (A) of the UDO. VOTE: UNANIMOUS A motion was made by Commissioner Yuhasz, seconded by Commissioner Hemminger finding there is sufficient evidence in the record that the project complies with Section 5.3.2 (A) (2) (b) of the UDO in that the use will maintain the value of contiguous property. This motion is based on competent material and evidence entered into the record of these proceedings, including: • Applicant testimony from the Public Hearing, • Abstracts from the May 29, 2012 Quarterly Public Hearing and July 11, 2012 Planning Board, and • A lack of competent material and substantial evidence in the form of testimony, exhibits, documents, plans, or other materials entered into the record indicating the applicant had not met their burden in accordance with Section 5.3.2 (A) of the UDO. VOTE: UNANIMOUS A motion was made by Commissioner Yuhasz, seconded by Commissioner Hernminger finding that there is sufficient evidence in the record the project complies with Section 5.3.2 (A) (2) (c) of the UDO in that the use is in harmony with the area in which it is to be located and the use is in compliance with the plan for the physical development of the County as embodied in these regulations and in the Comprehensive Plan. This motion is based on competent material and evidence entered into the record of these proceedings, including: • Attachment 1, the application, of the public hearing abstract, • Staff and applicant testimony from the Public Hearing, • Abstracts from the May 29, 2012 Quarterly Public Hearing and July 11, 2012 Planning Board, • Staff findings as discussed during the July 11, 2012 Planning Board regular meeting, and • A lack of competent material and substantial evidence in the form of testimony, exhibits, documents, plans, or other materials entered into the record indicating the applicant had not met their burden in accordance with Section 5.3.2 (A) of the UDO. VOTE: UNANIMOUS A motion was made by Commissioner Jacobs, seconded by Commissioner Gordon to approve the Special Use Permit imposing recommended 4 conditions as detailed on page(s) 51 through 52 of the abstract package. VOTE: UNANIMOUS The Board then took action on the ordinance amending the zoning atlas (Attachment 6) and the resolution concerning comprehensive plan consistency (Attachment 8). As you may recall, a recent State Supreme Court decision impacted how zoning atlas amendments are processed and acted upon. In the past, staff has produced an Ordinance amending the zoning atlas containing a statement detailing how the amendment is consistent with the goals and policies of the Comprehensive Plan and is in the public interest. Now, we are required to take 2 separate actions when dealing with a zoning atlas amendment, specifically: • Adoption of an Ordinance approving or rejecting the proposed atlas amendment, and • Adoption of a separate statement denoting the atlas amendment complies with an adopted comprehensive plan. This statement must describe whether the action is: `consistent with any controlling comprehensive plan and explain why the action is reasonable and in the public interest'. It should be noted that according to North Carolina General Statute, this statement is not subject to judicial review. A motion was made by Commissioner Hemminger, seconded by Commissioner McKee to adopt the Ordinance Amending the Orange County Zoning Atlas as contained within Attachment 6 of the abstract package. VOTE: UNANIMOUS A motion was made by Commissioner Hemminger, seconded by Commissioner McKee to adopt the Resolution of Comprehensive Plan Consistency as contained within Attachment 8 of the abstract package. VOTE: UNANIMOUS b. Class A Special Use Permit— Public Utility Station (Solar Array) The Board considered receiving the Planning Board recommendation, closing the public hearing, and making a decision on a Class A Special Use Permit (SUP) request submitted by