HomeMy WebLinkAboutAgenda - 06-03-1996 - VIII-J t
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ORANGECOUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 3. . 1996
Action Agenda
Item# V _T
SUBJECT: PROPOSED ZONING ORDINANCE TEXT AMENDMENT
Article 8.2 Special Uses
DEPARTMENT: PLANNING PUBLIC HEARING Yes_X_No
BUDGET AMENDMENT REQUIRED Yes–X—No
ATTACHMENT(S): INFORMATION CONTACT:
Proposed Amendment Mary Willis
County Attorney Correspondence Extension 2583
2/26/96 Public Hearing Minutes(draft)
5/20/96 Planning Board Minutes TELEPHONE NUMBERS:
Hillsborough-732-8181
Durham -688-7331
Mebane -227-2031
Chapel Hill-967-9251
PURPOSE: To consider a proposed amendment to Special Use provisions related to
expiration,validity, and approval actions for Special Use Permits,
BACKGROUND In the attached letter dated December 18, 1995, the County Attorney
recommended several changes to the Zoning Ordinance provisions
pertaining to Special Uses.
It is proposed that the following standard requirements be explicitly stated
in each Special Use Permit:
• that the permit will become null and void if any of the conditions are
held invalid or void; and
2 •
• That the permit will automatically expire within 12 months of
approval if the use has not commenced or if construction has not
commenced and proceeded,unless a time extension is approved.
In addition, the proposed amendment involves a change to Article 8.4.7,
which relates to action on Special Use Permits. The proposed amendment
would eliminate the requirement that a summary of evidence supporting
the action be included as a part of the action itself
The proposed amendment was presented for public hearing on February
26, 1996. There were no comments.
The amendment was presented to the Planning Board on March 18, 1996.
Several questions were raised concerning the purpose of the amendment,
and no recommendation was made as to whether or not the amendment
should be adopted by the Board of Commissioners. The County Attorney
attended the May 20 Planning Board meeting to provide additional
clarification regarding the existing regulations and the proposed
amendment.
The Planning Board recommended approval of the proposed amendments
on May 20, 1996. The vote was unanimous.
RECOMMENDATION: The Administration recommends approval of the proposed
amendment per the Planning Board recommendation.
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PROPOSED ORDINANCE AMENDMENT
ORDINANCE: ZONING ORDINANCE
REFERENCE: Article 8.2 Special Uses
ORIGIN OF AMENDMENT: Staff Planning Board
BOCC Public
X Other: County Attorney
STAFF PRIORITY RECOMMENDATION: X High Middle Low
Comment:
PUBLIC HEARING DATE: February 26, 1996
PURPOSE OF AMENDMENT: To amend Special Use provisions related to expiration,
validity, and approval actions for Special Use Permits,
IMPACTSASSUES: In the attached letter dated December 18, 1995, the County Attorney
recommended several changes to the Zoning Ordinance provisions
pertaining to Special Uses.
It is proposed that the following standard requirements be explicitly stated
in each Special Use Permit:
• that the permit will become null and void if any of the conditions are
held invalid or void; and
• That the permit will automatically expire within 12 months of
approval if the use has not commenced or if construction has not
commenced and proceeded,unless a time extension is approved.
In addition, the proposed amendment involves a change to Article 8.4.7,
which relates to action on Special Use Permits. The proposed amendment
would eliminate the requirement that a summary of evidence supporting the
action be included as a part of the action itself.
EXISTING ORDINANCE PROVISIONS AND PROPOSED AMENDMENT:
ARTICLE 8-SPECIAL USES
8.1 It is the intention of the Board of County Commissioners to create, and from time to
time amend, a list of Special Uses within Article 4 Permitted Use Table which,
because of their inherent nature, extent and external effects, require special care in
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the control of their location and methods of operation. The Board of County '
Commissioners is aware of its responsibility to protect the public health, safety and
general welfare and believe that certain uses which now or in the future may be
included on this list are appropriately handled as Special Uses, subject to review in
relation to general and specific requirements,rather than as uses permitted by right.
In addition to the listing of such uses, the Board of County Commissioners intends
that the general standards, established in Section 8.2.1, and the more specific
requirements in 8.2.2, established below, shall be used by the Board of Adjustment,
the Planning Board and the Board of County Commissioners, as appropriate, to
direct deliberations upon application or the approval of Special Uses. It is the
express intent of the Board of County Commissioners to delineate the areas of
concern connected with each Special Use and to provide standards by which
applications for such Special Use shall be evaluated.
8.2.1 Before any application for a Special Use shall be approved:
a) The applicant shall have the burden of establishing, by competent material
and substantial evidence,the existence of the facts and conditions which this
ordinance requires for approval; and
b) The Board shall make written findings certifying compliance with the
specific rules governing such individual Special Use and that the use, which
is listed as a Special Use in the district in which it is proposed to be located,
complies with all required regulations and standards including the following
general conditions:
(1) The use will maintain or promote the public health, safety and
general welfare, if located where proposed and developed and
operated according to the plan as submitted;
(2) The use will maintain or enhance the value of contiguous property
(unless the use is a public necessity, in which case the use need not
maintain or enhance the value of contiguous property);
(3) The location and character of the use, if developed according to the
plan submitted,will be 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 or in
the Comprehensive Plan, or portion thereof, adopted by the Board of
County Commissioners;
and including all applicable provisions of Articles 4, 5, 6, 7, 9, 10 and 12 of
this Ordinance, unless greater or different regulations are contained in the
individual standards for the specific Special Use. The applicant shall have
the burden of establishing by competent material and substantial evidence in
the form of testimony, exhibits, documents, models, plans and the like that
the application meets the requirements for approval of a Special Use.
5
8.2.2 Where the Board finds compliance with the general standards, specific rules
governing the specific use and that the use complies with all required regulations
and standards the application must be approved unless the Board shall also find, in
some specific manner,that:
The use will not maintain or promote the public health, safety and general welfare,
if located where proposed and developed and operated according to the plan as
submitted;
Those opposing approval of the application on the grounds that the use will not
promote the public health, safety and general welfare shall have the burden of
establishing, by competent material and substantial evidence, the specific manner in
which the proposed use does not satisfy the requirements for approval of the
application for a Special Use.
8.2.3 RESERVED
The Special Use Permit shall include a statement that If my condition of a Special
Use Permit shall be held invalid or void, then the permit itself shall he void and of
no effect.
8.2.4 In addition to the general standards stated in 8.2 the following specific standards
shall be addressed by the applicant before the issuance of a Special Use Permit:
a) Method and adequacy of provision of sewage disposal facilities, solid waste,
and water.
b) Method and adequacy of police,fire and rescue squad protection.
C) Method and adequacy of vehicular access to the site and traffic conditions
around the site.
d) Other use specific standards are set forth in Section 8.8.
$ � It shall be stated in the Special Use Permit that the Permit shall automatically expire
within twelve (12) months of the date of approval if the use has not commenced or
construction has not commenced or proceeded unless a timely application for
extension of this time limit is approved by the Board of County Commissioners as
provided in 8 4 11 of the Orange Comly Zoning Ordinance
8.4.7 Action On The Application
After completion of the public hearing, the Board of County Commissioners or the
Board of Adjustment, as appropriate, shall take action upon the application. This
action shall be one of the following:
0
6 •
a) Approval;
b) Approval with conditions attached;
C) Denial.
uYY b the aetien taken by it on the applieatieff,
##################################
ORDINANCE REVIEW SUBCOMMITTEE:
PLANNING BOARD REVIEW:
BOCC REVIEW:
a 7
LAW OFFICES
COLEMAN, GLEDHILL & HARGRAVE
A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHI L
DOUGLAS HARGRAVE
129 E.TRYON STREET
P.O.DRAWER 1529 KIM r-� �
HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON
(919)732.2196 DOUGLAS P.THOREN
FAX(919)732.7997 SAMUEL ELY OOLEMAN
December 18, 1995
Mr. Marvin Collins
Planning Director
Orange County Planning Department
Post Office Box 8181
Hillsborough, North Carolina 27278
RE: Special Use Permits
Dear Marvin:
While recently reviewing a special use permit or two, it
occurred to me that Orange County should condition its special
use permits such that if any condition is determined to be
invalid, the whole permit is invalid. I think it will also be
useful if special use permits describe the construction timing
requirements of the Ordinance as a condition of approval. I
recommend the following language be used and that each special
use permit approval be conditioned as follows:
# If any of the conditions affixed hereto or any- part of this
permit shall be held invalid or void, then this permit shall
be void and of no effect.
# This permit shall automatically expire within twelve (12)
months of the date of its approval if the use has not
commenced or construction has not commenced and proceeded
unless a timely application for extension of this time limit
is approved by the Board of County Commissioners as. provided
for in Section 8.4. 11 of the Orange County Zoning Ordinance.
These conditions are fairly standard for special use
permits. At some point in time I have talked about their need
with you or perhaps some members of your staff. I had overlooked
documenting those conversations and providing the needed
language.
Mr. Marvin Collins
Page 2
December 18, 1995
Also, Section 8.4.7 of the Zoning Ordinance, relates to
action on an application for a special use permit. That action,
by either the Board of County Commissioners in the case of a
Class A special use permit or the Board of Adjustment in the case
of a Class B special use permit, must "in every case, . . . include
a summary of the evidence supporting the action taken . . . on the
application. " In the context of a special use permit application
some time ago this language was removed from the Board of
Adjustment's Rules of Procedure. Enclosed is a copy of my March
7, 1995 letter to you about that. The language indicated above
should be deleted from the Ordinance for the reasons stated in
that letter. In my March 7, 1995 letter I mistakenly indicated
that the problem language only applies to the Board of
Adjustment. As you can see, Section 8.4.7 applies equally to the
Board of Adjustment and Board of Commissioners. And the problem
can only be fixed with an Ordinance revision.
Very truly yours,
COLEMAN GLEDHILL & HARGRAVE, P.C.
y E. dhill
GEG/lsg
Enclosure
1sg\home3\mco11sup.1tr
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LAW OFFICES
COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN,IR.
A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL
DOUGLAS HARGRAVE
129 E.TRYON STREET
KIM K.STEFFAN
P.O.DRAWER 1529
HILLSBOROUGH,NORTH CAROLINA 27278 JANET A B.S P.P.TTON THOREN
(919)732.2196 DOUGLAS
FAX(919)732-7"7 SAMUEL ELY COLEMAN
March 7 , 1995
Mr. Marvin Collins
Planning Director
Orange County Planning Department
Post Office Box 8181
Hillsborough, North Carolina 27278
RE: Special Use Permits
Dear Marvin:
As you know, of late I have been busy with appeals of Board
of Adjustment decisions . That activity has alerted me to what I
see as a source of ambiguity in the special use permit
application process and the need to modify the Board of
Adjustment's Rules of Procedure.
Presently Section 8 . 2 . 1 of the Zoning Ordinance places the
burden of proof on the applicant to prove the general conditions
listed as ( 1) , (2) and (3 ) under subsection b) . Section 8 .2 . 2
then purports to shift the burden of proof on those same matters
to opponents of the special use permit. I think this process
should be revised.
The burden should continue to be the applicants to prove
Section 8 . 2 . 1.b, ( 1) , (2 ) and (3) . Opponents of an application,
on the other hand, should have no burden with respect to the
matters contained in Section 8 . 2 .2 (b) and (c) . Opponents of an
application will, of course, have the opportunity to present
evidence on the matters contained in those subsections .
Enclosed is a rewrite of Section 8 . 2 . 2 with highlighted
(new) and cross through (eliminated) language that accomplishes
this change. My reason for recommending that this change be made
is to make it absolutely clear that the applicant has a burden to
make a showing with respect to value of contiguous property and
that the use must be in compliance with the County's "general
Plan" for development. These two items are fact specific and can
be readily established by evidence available to the applicant at
•
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Mr. Marvin Collins
Page 2
March 7 ; 1995
the application stage. On the other hand, although the applicant
can be required to show in general that the use will maintain or
promote the public health, safety and general welfare, the
applicant cannot be expected to anticipate every specific health,
safety and welfare problem. Proof of any such specific problem
should be the responsibility of opponents .
The best statement of the principles involved here is that
contained in Brough & Green, The Zoning Board of Adjustment, at
pages 83-84 (2nd ed. Institute of Government, UNC-CH, 1984 ) .
These principles were recognized and approved in a recent North
Carolina Court of Appeals case, Signorelli v. Town of Highland,
93 N.C.App. 704, 379 S .E. 2d 55 ( 1989 ) . In that case, the
applicant sought a special use permit. The permit was denied and
the Superior Court affirmed on the basis that the "petitioner
failed to meet the burden of producing evidence and the burden of
persuasion to allow the board to find in the petitioner's favor. "
379 S.E. 2d at 57 . The Court of Appeals ' decision affirming the
Superior Court in Signorelli contains the first explicit
recognition in North Carolina case law that "the evidentiary
burden in special use permit proceedings can shift from the
applicant to those who oppose the application. " Id.
The Signorelli case is interesting also for its recognition
that the applicant has some burden on the issue of public health,
safety and general welfare, notwithstanding the caution on that
point in the passage from the Brough and Green publication set
out above. The Signorelli court concluded that the applicant had
established a prima facie case because his application
demonstrated compliance with the relevant specific requirements
and therefore the question was whether the burden of showing that
the proposed use would materially endanger the public health and
safety had been met. The court stated that there was evidence
that the plans were not specific enough for the board to properly
decide whether or not the proposed use would materially endanger
the public health and safety. In particular, the court noted
that the board had found that:
. . .no set of plans or specifics were submitted regarding
hours of operation, number of machines and tables, or
methods of supervision so that protection of the public
welfare against traffic and noise difficulties was not
assured.
Id. , 379 S .E. 2d at 58 . The court then concluded that "a plan
lacking in essential details and specifics potentially threatens
health and safety no less than a detailed plan which is
antithetical to the public and the public interest. " Id. , 379
S .E . 2d at 59 . In other words, the evidence before the board on
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Mr. Marvin Collins
Page 3
March 7 , 1995
the issue of public health and safety was that there was no
evidence before the board on this issue.
I recognize that all of this is perhaps legalistic to a
fault. However, I think my analysis is correct and I wanted to
share it with you if for no other reason than to test your quasi
lawyering skills and set down in writing the basis for the
ordinance change, together with an analysis that will help in its
implementation when adopted.
I have also enclosed a copy of a recent North Carolina Court
of Appeals decision in the case of Vulcan Materials Company v.
Guilford County Board of County Commissioners, 115 N.C.App. 319 ,
444 S .E . 2d 639 . That case approves the use of a special use
permit standard in the Guilford County Zoning Ordinance which may
be helpful to Orange County and which could be an addition to the
third special use permit general standard in the Orange County
Zoning Ordinance. That standard is that the special use be "in
harmony with the area in which [it] is to be located. . . : " Id. ,
444 S .E. 2d at 642 . As you can see by the analysis of the court
in the enclosed opinion, that standard permitted a denial of an
industrial use (rock quarry) when competent, material and
substantial evidence was presented that the use contemplated was
in fact not "in harmony" with the surrounding residential and
agricultural land uses, notwithstanding the general conformity
implicit in the fact that this special use is one permitted in
the agricultural/residential zoning district. I commend this
approach and have included language in the rewrite of Section
8 . 2 . 1 which will accomplish it for your consideration.
Finally, I have reviewed again the Orange County Board of
Adjustment' s Rules of Procedure and recommend the changes
enclosed. These recommended changes arise out of one or more
North Carolina Appellate Court decisions . The most important
proposed change is to Section 3(e) . One North Carolina Court of
Appeals decision remanded a board of adjustment decision because,
among other reasons , the chair failed to summarize the evidence
presented at the special use permit hearing and provide the
parties an opportunity to make objections or corrections before
the board of adjustment made its decision. Cardwell v. Forsyth
County Zoning Board of Adjustment, 88 N.C.App. 244 , 362 S .E . 2d
843 ( 1987 ) , rev. denied 321 N.C. 742 ( 1988) . It seems to me that
no matter how helpful such a practice is , it need not be the
basis for overturning a board of adjustment decision. In that
regard, there is no comparable requirement or practice by the
Board of Commissioners in its special use permit procedures .
Also, eliminating the requirement that the chair of the board of
adjustment summarize evidence- does not mean that the chair cannot
do this if it is the practice.
•
Mr. Marvin Collins 12
Page 4
March 7 , 1995
I 'll be glad to review all of this with you. I would hope
that an -ordinance amendment consistent with this letter could be
considered by the Board of Commissioners at the next scheduled
regular quarterly public hearing and the Board of Adjustment
could consider the Rules of Procedure .changes as soon as
practical.
Very truly yours,
COLEMW; GLEDHILL & HARGRAVE, P.C.
Geo' rey E. Gledhill
i
GEG/lsg
Enclosures /
1sg\home3\mco11in4.ltr
13
1 McNnda Coleman, Preservation Planner with the Division of Archives& History, spoke in
2 support of this plan for which funds were awarded in 1994. The primary goal of the Division of
3 Archives b History's Preservation Program is to make historic preservation a part of local
4 planning by weaving it into the fabric of governmental decisions. This money was granted to
5 Orange County because it was clear that good structures were available for protection and that
6 this plan had potential to be a model for other communities. In particular, the Division of
7 Archives and History was pleased that citizen participation was such a high priority in this
8 project.
9
10 A motion was made by Commissioner Willhoit, seconded by Commissioner Gordon, to
11 refer the Historic Preservation Element to the Historic Preservation Commission and the
12 Planning Board for recommendations to be returned to the Board of Commissioners no sooner
13 than April 1, 1996.
14 VOTE: UNANIMOUS
15
16 3. Zoning Atlas Amendments
17 (ai) Z-1-96 Schley Community Store and Flea Market
18 This item was presented by Planner Jim Hinkley to receive citizen comment on a
19 request to rezone property owned by Bobby and Lydia Crawford. The property proposed to be
20 rezoned is a .82-acre lot owned by Bobby M. And Lydia E. Crawford at 3301 NC 57 (Tax Map
21 No. 2.47..9). It is located on the West side of NC 57 approximately 1,000 feet north of Walker
22 Road. The lot is currently zoned AR Agricultural-Residential. The proposed zoning is EC-5
23 Existing Commercial. The existing use is known as Schley Community Store and Flea Market,
24 and consists of a 36' X 32' store and 26'X 60' enclosed shed. The premises have been used
25 commercially since the mid-1950's. The Crawfords have used the property for a commercial
26 use since 1982. The property is located in an area desiynatml Uy hoes Cw)prehensive flan as
27 Agricultural-Residential.
28
29 QUESTIONS AND/OR COMMENTS FROM THE BOARD OF COMMISSIONERS, PLANNING
30 BOARD OR CITIZENS
31
32 None.
33
34 A motion was made by Commissioner Halkictis, seconded by Commissioner Crowther, to
35 refer the proposed Zoning Atlas amendment to the Planning Board for a recommendation to be
36 returned no sooner than April 1, 1996.
37 VOTE: UNANIMOUS
38
39 4. Zoning Ordinance Text Amendments
40 (a) Article 6.3.11 Watershed Protection Overlay Districts
41 (b) Article 8 Special Uses
42 These items were presented by Planner Mary Willis. Item (a)was presented for
43 the purpose of receiving citizen comment on a proposed amendment which would authorize the
44 Board of Adjustment to grant variances to allow the use of septic easements in watersupply
45 watersheds. item (b)was presented to receive citizen comment on proposed amendments to
4
.nr-ao_...:�u .�•vv put..,- rn u-ilLr. 74 vovr JCh7-+ r.WC,vj0
1 4
1 Special Use provisions related to expiration, validity, and approval actions for Special Use
2 Permits.
3
4 QUESTIONS'AND/OR COMMENTS FROM THE BOARD OF COMMISSIONERS
5
6 Commissioner Gordon asked if it was necessary to have both a septic area and a repair
7 area if an easement existed.
8
9 Geoff Gledhill indicated that whether a septic area and repair area were required
10 depended on when the septic system was installed. That decision is the responsibility of the
11 Health Department.
12
13 Mary Willis noted that this amendment did not change the currently established
14 landowners requirement to meet the five findings necessary for variance approval.
15
16 QUESTIONS AND/OR COMMENTS FROM THE PLANNING BOARD AND OR CITIZENS
17
18 None.
19
20 A motion was made by Commissioner Halkiotis, seconded by Commissioner WIlhoit, to
21 refer both of these amendments to the Planning Board for recommendations to be returned no
22 sooner than April 1, 1996.
23 VOTE: UNANIMOUS
24
25 (c) Article 23.Violations, Penalties, and Remedios, 23.2 Penalties,a)
26 Criminal Action
27 This item was presented by Planner Jim Hinkley for the purpose of
28 receiving citizen comment on a Zoning Text Amendment. The Orange County Zoning
29 Ordinance provides for action which may be taken by the County to abate zoning violations or
30 non-compliance with zoning requirements. Taking criminal action in the courts is not often
31 used, but when it is, it is important that this remedy be effective. Although not specifically stated
32 in Section 23.2,the maximum fine is fifty dollars ($50.00). The maximum $50.00-fine upon
33 conviction limits the effectiveness of the criminal action remedy. The proposed amendment
34 would enable Orange County to increase the maximum fine to$500.00, as authorized by N.C.
35 General Statutes 14-4.
36
37 QUESTIONS AND/OR COMMENTS FROM THE BOARD OF COMMISSIONERS, PLANNING
38 BOARD AND CITIZENS
39
40 None.
41
42 A motion was made by Commissioner Halkiotis, seconded by Commissioner Willhoit, to
43 refer the proposed Zoning Ordinance Text amendment to the Planning Board for a
44 recommendation to be returned no sooner than April 1, 1996.
45 VOTE: UNANIMOUS
5
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for verification of soils suitable for septic systems. Working this way with
Environmental Health can help prevent the creation of even larger lots with soils
that do not perk. If Environmental Health indicates that there are no perc sites,
then the applicant is discouraged from creating the lot. He would be encouraged
to redraw lot lines such that percable soils would be available.
Katz asked for clarification concerning future creation of the large lots and
whether those could be appealed to the Board of Adjustment. Hinkley responded
that this would only apply to lots created prior to January 1, 1994. Waddell
noted also that it applied only to lots in the watersheds.
VOTE: 9 in favor.
1 opposed (Rosemond-felt that the steps being taken to avoid future creation of
such lots is not "tight enough".)
(2) Article 8 Special Uses
Presentation by Jim Hinkley.
This item is to consider a proposed amendment to Special Use provisions related
to expiration,validity,and approval actions for Special Use Permits.
A letter from the County Attorney dated December 18, 1995, recommended
several changes to the Zoning Ordinance provisions pertaining to Special Uses.
It is proposed that the following standard requirements be explicitly stated in each
Special Use Permit:
that the permit will become null and void if any of the conditiods are held
invalid or void;and
that the permit will automatically expire within twelve months of approval if
the use has not commenced or if construction has not commenced and
proceeded,unless a time extension is approved.
In addition,the proposed amendment involves a change to Article 8.4.7,which .
relates to action on Special Use Permits. The proposed amendment would
eliminate the requirement that a summary of evidence supporting the action be
included as a part of the action itself.
The proposed amendment was presented for public hearing on February 26, 1996.
There were no comments.
The Zoning Officer recommends approval of the proposed amendment.
Waddell expressed concern that the amendment seemed to say if the applicant
went to court and the court found a condition placed by the County to be
disallowed,then the County would declare the permit to be null and void. He felt
this was incorrect. Extensive discussion concluded that the proposed
amendment does not adequately address the concerns raised by Waddell.
Katz asked why there should be an automatic expiration in 12 months. Collins
responded that is a typical condition that is placed on Special Use Permits. It is
16
•
approval to go ahead,but it lets the applicant know that something must done
before the end of the twelve month period.
It was noted that this is a common condition placed on every Special Use Permit.
This amendment would place the standard in the ordinance so that it would not
have to be placed on each permit as a condition.
Reid expressed concern with what would be considered"commencing". Collins
responded that there must be evidence that work has begun and proceding in a
reasonable-period. Construction 4nust begin within that twelve month period.
Reid continued expressing concern that it should be very clear and he felt that too
much is left open to interpretation.
Jobsis stated that the question from many of the Board members indicated the
lack of a clear definition of "commenced"and"proceeded".
Barrows expressed concern with the issue of burden of proof addressed in the
County Attorney's letter. She felt specific information should be provided for
citizens who are in opposition to some special use. They need to know how to
prepare and present their opposition and evidence at the public hearing.
Katz expressed concern that 8.2.2 b which refers specifically to value of
contiguous property is being deleted. He felt this creates confusion and should
also be better clarified by the County Attorney.
Jobsis recommended that all of these issues be forwarded to the County Attorney
for clarification.
MOTION: Katz moved that this proposed amendment be tabled until such time as the County
Attorney can be present to provide more information and clarity of the issues that
have been voiced by Planning Board members in this discussion. Seconded by
Allison.
VOTE: Unanimous.
(3) Article 23 Violations,Penalties,&Remedies
Presentation by Jim Hinkley.
The Orange County Zoning Ordinance provides for action which may be taken by
the County to abate zoning violations or non-compliance with zoning
requirements. Taking criminal action in the courts is not often used,but when it
is,it is important that this remedy be effective. Although not specifically stated in
Section 23.2,the maximum fine is fifty dollar($50.00). The maximum$50-fine
upon conviction limits the effectiveness of the criminal action remedy.
The proposed amendment would enable Orange County to increase the maximum
fine to$500.00,as authorized by NC General Statute 14-4.
The proposed amendment was presented at public hearing on February 26, 1996.
No citizen comments were received.The proposed amendment was referred to the
Planning Board for recommendation to be returned to the Board of Commissioners
no sooner than April 1, 1996.
17
Barrows noted that there were already subdivision roads accessing Whitfield Road,
She expressed concern that another is being added and none will line up with
existing roads. Cameron responded that the location of this subdivision road was
chosen because of the steep hill and curve. She also noted that it has been approved
by NCDOT. Hoecke also responded that site distance at this location is much better.
Brown asked which lots have septic easements. Cameron responded lots 2, 3, 18&
19.
Brooks asked if the systems are all to be conventional systems. Mr.David Morris,
one of the developers, responded that they are to be conventional systems. Brooks
also asked about the number of bedrooms and the response was five.
Brown asked about the expected buildout time and the response was two years. She
also asked about price range and the response was$500,000.00.
MOTION: Hoecke moved approval as recommended by the Planning Staff. Seconded by
Allison.
VOTE: 8 in favor.
3 opposed(Barrows-concerned with off-site septic easments and the entryway,
Brooks-disappointed that more effort was not made toward affordable
housing, Rosemond-also concerned with off-site septic systems).
AGENDA ITEM#9: MATTERS HEARD AT PUBLIC HEARING 2/26/96
a. Zoning Ordinance Text Amendments
(1) Article 8.2 Special Uses
(A copy of the abstract with proposed amendments is an attachment to these
minutes on pages )
Mary Willis noted that this item was heard at public hearing on February 28 and the
Planning Board discussed it at the March 18 meeting. There were questions and
concerns and the Planning Board tabled the item until the County Attorney could be
present to address those questions. Willis introduced County Attorney,Geoffrey
Gledhill,noting that the amendment was initiated by him and she felt he would be
best able to answer questions and address concerns from the Planning Board.
Gledhill stated that Special Uses are uses that the County Commissioners have
decided,as a matter of policy,are okay provided certain conditions are met. The
decision has already been made to allow the use;however,the use must comply with
the conditions contained in the Special Use Permit section of the Zoning Ordinance.
Gledhill continued that in working through challenges to Special Use Permit
decisions the last few years, he had discovered some confusion and ambiguity in the
way the Special Use Permit Section is set up. This has made it difficult to explain
just what the process is to the courts. The proposed amendment is intended to make
that explanation simple.The main thrust of the first page of amendments is that the
burden of proof is on the applicant. The applicant must clearly prove that the
request for a Special Use Permit meets all the facts and conditions of approval. The
Board of Commissioners must make findings that those facts have been found.
The three general conditions are:
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(1) The use will maintain or promote,the public health,safety and general welfare
if located where proposed,and developed and operated according to the plan as
submitted;
(2) The use will maintain or enhance the value of contiguous property(unless the
use is a public necessity,in which case the use need not maintain or enhance the
value of contiguous property);
(3) The location and character of the use,if developed according to the Plan
submitted,will be in harmony with the area in which it is located, and the use is
in compliance with the general plan for the physical development of the County
as embodied in these regulations or in the Comprehensive Plan, or portion
thereof,adopted by the Board of County Commissioners;
The Board must make findings that those facts have been found.
The confusion occurs when it is then required that those opposing the permit
have to prove that the use would not maintain,promote or enhance where the
applicant has presented evidence that the use will maintain,promote or enhance.
Gledhill continued that he would like to remove this confusion by simply saying
that the burden of proving that the use would maintain,promote or enhance falls
on the applicant. It is hoped that the change will eliminate the need of persons
opposing the project to prove that the use will not maintain or enhance property
values. We want to be insure that the applicants know everything that they
have to prove and not let them think that they are relieved of proving everything
we want them to prove because there is some comparable provision for those
opposing the project.
Gledhill emphasized that he was trying to eliminate the confusion on these
issues when cases do go into court. This would also eliminate attorneys for
applicants thinking the permit will or should be granted simply because there
may be no opposition. The burden of proof is clearly on the applicant.
Barrows,referring to the Board of Adjustment, asked what an opponent could
do when there are other objections as well as those addressing health,safety and
general welfare that the applicant has already shown in the positive. Gledhill
responded that if an opponent has evidence that the use will lower his/her
property value,this amendment does not preclude the presentation of that
evidence. All the opponent has to do is present evidence to make the Board of
Adjustment not sure that the applicant is carrying the burden on that point. It
actually reduces the opponent's burden. Before,once the applicant finished
with their his/her evidence,the opponent had to start over and
persuade/convince the Board of Adjustment otherwise. If the Board of
Adjustment has doubts,then,the applicant has not carried his burden.
Barrows expressed concern that citizens in opposition may not know what is
required of them or what kind of evidence they must present. Gledhill
responded that would be more of a process question/problem rather than a legal
problem. He suggested that everyone who is notified be informed of what they
need to do if they oppose a Special Use Permit application.
Katz asked why an expiration date is needed and the criteria for an extension.
Gledhill responded that it is an extra level of protection. Anyone purchasing or
considering purchasing such property would be aware of the permit and its
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requirements. In regard to extension,Willis noted that extensions are
granted by the Board of Commissioners.
Gledhill stated that another change he is proposing is that if any condition of the
permit is held to be invalid,then,the whole permit is invalid. He continued that
there are times when a condition is declared invalid by the courts.
Steve Yuhasz, Surveyor,expressed concern if a Special Use Permit for a
Planned Development would become null and void when a portion of the
development was completed. Gledhill responded that should not be an issue
because the time frame for challenging a Special Use Permit is thirty days.
Hoecke asked about the time limit for applying for an extension. The response
was that an extension must be applied for prior to the expiration date of the
current permit. Gledhill responded that this is not actually a change in process,
is simply placing it in the permit itself and making it a matter of public record.
Gledhill emphasized Article 8.2.1 b)3 which states: The location and character
of the use, if developed according to the plan submitted,will be in harmony
with the area in which it is to be located.
Brooks asked if the fact that a Special Use Permit had been granted makes it
easier for another applicant to be granted such a permit in the same area.
Gledhill responded that he had not thought this would liberalize securing a
Special Use Permit. He added that that may be an issue that should require
more thought. He continued that if the only thing stopping the permit was
harmony, then nothing would stop it.
Price expressed concern regarding harmony and suggested that perhaps it should
state in harmony with existing zoning or predominant use of the area. Gledhill
responded that the zoning problem is not something that can be addressed with a
Special Use Permit process. He noted he would need to consider the term
predominant use. He noted that we must be careful that special uses are being
addressed,not rezonings.
Howie asked about the Comprehensive Plan. Gledhill responded that the
Comprehensive Plan would not speak to special uses except in very general
terms. He continued that to address the concerns of Price and Howie,another
look needs to be taken at where special uses are permitted. What we are talking
about here is a fact finding decision,not how influential the neighborhood is.
Special Uses are not political decisions,they are quasi-judicial decisions.
Hoecke asked if one method of control over pre-existing permits was that they
could not expand and Gledhill agreed.
Gledhill stated that these issues are complicated ones and depend somewhat on
the interest of communities.
Willis reminded the Board that the items they were to make a recommendation
on were: that the permit will become null and void if any of the conditions are
held invalid or void;and that the permit will automatically expire within 12
months of approval if the use has not commenced or if construction has not
commenced and proceeded,unless a time extension is approved.
1
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MOTION: Katz moved approval as recommended by the Zoning Officer. Seconded by
Hoecke.
VOTE: Unanimous.
AGENDA ITEM#10: MATTERS SCHEDULED FOR PUBLIC HEARING 5/28/96
a. Comprehensive Plan Amendments
(1) South Buckhorn Economic Development District
(2) Stoney Creek Small Area Plan
b. Zoning Ordinance Text Amendments
(1) Telecommunication Towers
(2) Home Occupations
(3) Use of Historic Sites
c. Subdivision Regulations Text Amendments
(1) Recordation of Plats