HomeMy WebLinkAboutAgenda - 06-30-1997 - 8r 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
Action Agenda
Item NO. ,tr
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 30, 1997
SUBJECT: John G. McCormick v. County of Orange and Orange County
Board of Adjustment
DEPARTMENT: COUNTY ATTORNEY PUBLIC HEARING: No
Budget Amendment Reqd? No
ATTACHMENT(S) : INFORMATION CONTACT:
Geof Gledhill 732-2196
Settlement Agreement and
Release Telephone Number-
Hillsborough 732-8181
Chapel Hill 967-9251
Mebane 227-2031
Durham 688-7331
PURPOSE: To report and confirm a settlement in the matter of John
G. McCormick v. County of Orange and Orange County Board of
Adjustment, Superior Court Civil Action No. 96-CVS-841.
BACKGROUND: The background to this agenda item is set out in
detail in the settlement agreement which accompanies this agenda
abstract.
RECOMMENDATION: The County Attorney and the Manager recommend
confirming the Settlement Agreement and authorizing the Chair and
the Clerk to sign the Settlement Agreement in substantially the
form of the Agreement attached.
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NORTH CAROLINA SETTLEMENT AGREEMENT
ORANGE COUNTY AND RELEASE
This SETTLEMENT AGREEMENT AND RELEASE ( "Settlement
Agreement" ) is entered into this day of 1997
among John G. McCormick ( "McCormick" ) , County of Orange
( "County" ) and Orange County Board of Adjustment ( "Board of
Adjustment" ) .
I . RECITALS.
A. McCormick sought a variance for property which he owns
that is located on Gaines Chapel Road near the intersection of
Gaines Chapel Road and U.S. 70 . This property is hereafter
referred to as "the property. " The property consists of three
lots numbered 1, 2, and 3 on a subdivision plat recorded in 1983 .
These lots are shown on Exhibit A of this Agreement . The
property is within the R-1 (Rural Residential) zoning district .
Lots 1, 2 and 3 are smaller than the minimum required lot size of
40, 000 square feet . However, the lots do not have to meet the
minimum lot size requirements of the Orange County Zoning
Ordinance ( "the Zoning Ordinance" ) because they were created and
recorded prior to 1984 when zoning regulations were applied to
the vicinity of the property. They do, however, have to meet
minimum setback requirements of the Zoning Ordinance.
In 1975, the then-owner of the property, Andrew B. Lloyd,
Jr. entered into and recorded a right-of-way agreement with the
North Carolina Department of Transportation. Pursuant to the
agreement, the right-of-way of Gaines Chapel Road was expanded
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from 30 feet wide to 60 feet wide with the additional right of
way width taken equally from each side of the road. Therefore,
the agreement effectively granted a right-of-way of fifteen feet
within the property along Gaines Chapel Road.
Although Lots 1, 2 and 3 were created by a subdivision plat
recorded in 1983 (as were Lots 4, 5 and 6, none of which are the
subject of this Agreement) , the recorded plat was originally
drawn in 1965 prior to the execution of the right-of-way
agreement . While the plat was "revised" and recorded in 1983 ,
the "revised" plat did not account for the right-of-way granted
in 1975 . The recorded plat indicates Lots 1, 2 and 3 have a
depth of approximately 80 feet, however, it fails to describe or
depict the 15 foot right-of-way within the lots adjacent to
Gaines Chapel Road. Therefore, it fails to show that the right-
of-way reduced the "buildable" depth of the lots from 80 feet to
approximately 65 feet .
McCormick presented this erroneous plat to the Orange County
Planning Department (hereafter "the Planning Department" ) for a
determination of the buildable area of each of the six lots shown
on the plat for single family homes. Article 5 of the Zoning
Ordinance generally requires that buildings must be set back at
least 40 feet from the right-of-way line in the R-1 district . In
March, 1996, the Planning Department staff assisted McCormick in
determining the building setback requirements applicable to the
lots and in locating the buildable area of each lot using the
erroneous 1983 plat . Using the erroneous plat, it was determined
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variances for Lots 1, 2 and 3 . The Board of Adjustment responded
to the request for judicial review seeking an order affirming its
decision. Prior to the hearing on McCormick' s appeal to the
Superior Court, the parties determined to settle this matter
under the terms of this settlement agreement which provides,
among other things, for the development of one of the lots that
make up the property, for the demolition of foundations, footings
and other improvements on two of the lots in the property and for
landscaping those two lots, for the elimination altogether of one
of the lots by combination with one or the other of the lots in
the property or another of Lots 4, 5 and 6 all in full settlement
and discharge of all claims and actions of McCormick for judicial
review of the decision of the Board of Adjustment and for
damages, if any, arising out of or due to the Occurrence, on the
terms and conditions set forth herein.
NOW, THEREFORE, it is hereby agreed as follows :
II . DEVELOPMENT OF THE PROPERTY.
A. Lot 1 of the property is a lot of record and a corner
lot . The house under construction on Lot 1 is setback at least
25 feet from the actual right of way of Gaines Chapel Road and
Pine Street . Lot 1 may be developed per the previously approved
site plan of the property. The Stop Work Order previously issued
by County halting construction of Lot 1 shall be lifted on the
effective date of this Agreement .
B. Any building permit and any other County permit
authorizing the development of Lot 2 of the property is, on the
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effective date of this Agreement, revoked. All improvements that
have been made to Lot 2, including the foundation walls, footers
and any other, shall be removed from Lot 2 within 30 days of the
effective date of this Agreement . Contemporaneous with the
removal of the improvements on Lot 2, grass will be sown on the
lot or it will otherwise be landscaped. Landscaping shall be
performed in consultation with the County Planning Department .
Within 45 days of the effective date of this agreement : (1) Lot
2 shall be combined, as elected by McCormick, with one or the
other of Lots 1 and 3 of this property or Lots 4, 5 and 6 of the
subdivision shown on Exhibit A; (2) the combination shall be
accomplished by a revised plat of the property and Lots 4, 5 and
6 of the subdivision shown on Exhibit A, and (3) the combination
plat shall be recorded in the County Registry.
C. Any building permit and any other County permit
authorizing the development of Lot 3 of the property is, on the
effective date of this Agreement, revoked. All improvements that
have been made to Lot 3, including the foundation walls, footers
and any other, shall be removed from Lot 3 within 30 days of the
effective date of this Agreement . Contemporaneous with the
removal of the improvements on Lot 3, grass will be sown on the
lot, or it will otherwise be landscaped. Landscaping shall be
performed in consultation with the County Planning Department .
McCormick acknowledges and the parties agree that Lot 3 cannot be
developed under existing zoning and subdivision regulations of
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County. McCormick further acknowledges that this Agreement does
not contain any promise, inference or suggestion that Lot 3 can
now be or ever can be developed.
D. The plat called for in paragraph II .B. of this
Agreement shall be presented to County in a timely manner for its
review and shall show the combination of Lot 2 and shall depict a
footprint of structures, show all setbacks from the structures
and the correct location of Gaines Chapel Road.
III . RELEASE.
In consideration of those things agreed to in paragraph II
of this Agreement, McCormick hereby releases and forever
discharges County, the Board of Adjustment all officials of
either and employees of either, and their successors and assigns,
from any and all action, cause of action, claim, demand, damage,
cost, loss of service, expense, and the like, past, present, or
future, recoverable as compensation on account of or in any way
growing out of any and all known and unknown injuries resulting
from or alleged to have resulted from or to result from McCormick
in any manner arising out of the Occurrence. It is agreed and
acknowledged that acceptance of the consideration herein by
McCormick is in full accord and satisfaction of any asserted or
unasserted claim, for which liability is expressly denied. It is
further agreed that in the event other parties as heirs,
successors in title, assignees, transferees and the like claim
injury and damages as a result of the Occurrence, the execution
of this Agreement shall operate as satisfaction of any such
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claims against any such other parties . This Agreement, release
and discharge shall be a fully binding and complete settlement
among all parties to this Settlement Agreement . It shall be
effective, and is contingent, upon the proper filing by McCormick
of a voluntary dismissal with prejudice in the civil action
numbered 96-CVS-841 which civil action McCormick acknowledges is
in lieu of any other legal suit or action based upon McCormick' s
rights of any and all kinds whatsoever arising out of any claims
or injuries allegedly caused as the result of the Occurrence. It
is acknowledged by the parties that the Board of Adjustment is
not a legal entity with the ability to sue and be sued but is a
quasi judicial board appointed by the County Board of
Commissioners pursuant to the Orange County Zoning Ordinance and
North Carolina General Statutes § 153A-345 . The parties agree
that execution of this Settlement Agreement by County constitutes
execution by County on its own behalf and on behalf of the Board
of Adjustment .
IV. ENTIRE AGREEMENT.
This settlement agreement contains the entire agreement
between McCormick, County and the Board of Adjustment with regard
to the matters set forth herein. It is expressly warranted by
the undersigned that no understanding or agreement, promise or
inducement has been offered except as set forth herein. This
release is executed without reliance upon any statement or
representation of the persons or parties released or their
representatives, agents, or attorneys, concerning the nature and
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extent of injuries or damages or liability therefore.
V. FUTURE COOPERATION.
All parties agree to cooperate fully, to execute any and all
supplementary documents, and to take all additional actions that
may be necessary or appropriate to give full force and effect to
the terms and intent of this Settlement Agreement which are not
inconsistent with its terms .
(SEAL)
JOHN G. MCCORMICK
ORANGE COUNTY, NORTH CAROLINA
By:
William Crowther, Chair
Orange County Board of
Commissioners
ATTEST:
[SEAL]
Beverly A. Blythe, Clerk to
the Board of Commissioners
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