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HomeMy WebLinkAbout1997 S Settlement Agreement and Release John G McCormick v County of Orange and Orange County Board of Adjustment ® !v-sto NORTH CAROLINA SETTLEMENT AGREEMENT ORANGE COUNTY AND RELEASE This SETTLEMENT AGREEMENT AND RELEASE ( "Settlement Agreement" ) is entered into this 25th day of July , 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 1 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 2 that lot #1 had an approximately 20 feet by 30 feet "envelope" within which a house could be located and that lots #2 and #3 had a buildable "envelope" of approximately 20 feet by 50 feet . On March 21 and 22, 1996, building permits were issued for . the construction of single-family homes on Lots 1, 2 and 3 . McCormick had the property surveyed in order to determine the exact location of the building "envelopes . " This survey, dated March 28, 1996, duplicated the error of the 1983 survey and contained the same incorrect dimension on the depth of the lots along Gaines Chapel Road. Subsequently, three houses were constructed on Lots 4-6 and foundations were constructed on Lots 1-3 adjacent to Gaines Chapel Road. In response to neighborhood complaints that the houses along Gaines Chapel Road were located too close to the road, the Planning Department researched the issue and determined for the first time that the subdivision plat presented by McCormick and used to define the building "envelopes" was incorrect in that it did not reflect the 15 feet right-of-way encroachment within Lots 1-3 . Therefore, the foundations constructed on lots 1-3 along Gaines Chapel Road were found to be in violation of the Zoning Ordinance in that- they were constructed 25 feet from the right-of-way line, rather than the required 40 feet . Development of Lots 4-6 and the homes constructed on those lots is not effected by the plat error affecting lots 1-3 . On April 22, 1996, the Planning Department issued Stop-Work Orders on lots 1-3 due to the violation of the setback 3 requirement . Reserving the rights of Orange County with respect to the zoning violation, at McCormick ' s request, the Planning Department granted permission to McCormick to construct the "shell" of the house on Lot #1 in order to prevent damage to the . sub-flooring and first floor framing that had been completed on that house at the time the zoning violation was discovered. McCormick then applied to the Board of Adjustment for a variance of approximately 15 feet from the required 40 feet front setback requirement for Lots 1, 2 and 3 . On May 13, 1996, the Board of Adjustment held a public hearing concerning the variance request . As reflected by the minutes of the hearing, several neighboring residents and property owners provided evidence in opposition to the request . Additionally, McCormick presented his request before the Board of Adjustment and was given the opportunity to respond to evidence presented by those speaking in opposition to the variance. After considering the variance request as required by Section 2 .3 . 6 . 1 of the Zoning Ordinance, the Board of Adjustment unanimously voted to deny the request and made findings of fact to support its conclusions . All of the events described above and any actions or inactions related to the events described above are hereafter referred to as "the Occurrence. " 'B. McCormick sought judicial review of the decision of the Board of Adjustment seeking an order remanding the matter to the Board of Adjustment with instructions to grant and issue the 4 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 5 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 6 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 7 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 8 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 . L) HN G. MCCO ICK ORANGE COUNTY, NORTH CAROLINA By: W W VM L• Lo I William Crowther, Chair Orange County Board of Commissioners ATTEST: A� J— �z z: [SEAL] Beverly A Blythe, Clerfk to the Board of Commissioners lsg-9 mccormick.doc 9 WII 13IT •y -70 - PINE. STREET �\ (30' PUBLIC R/W) o I —� S 84°36'51"E , . - 1 UP 77.97' S 84°36'51"E 77.9 7'. ' NDLCSC TAX MAp R I /W PIN NUMBER;gg 44_ �.J3.C.5 1 m .. I I - -58-8276, 1 e 3 l ° co Z0 4R 7117 S. 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