HomeMy WebLinkAboutAgenda - 04-15-2014 - 5b 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: April 15, 2014
Action Agenda
Item No. 5-b
SUBJECT: Unified Development Ordinance Text Amendment Related to Setbacks for
Class I I Kennels Developed in the EDE-2 General Use Zoning District— Public
Hearing Closure and Action (No Additional Comments Accepted)
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes
ATTACHMENTS: INFORMATION CONTACT:
1. Approved February 24, 2014 Quarterly Michael D. Harvey, Planner III, (919) 245-2597
Public Hearing Legal Ad Craig Benedict, Director, (919) 245-2592
2. Copy of E-mail(s) sent to County
Commissioners Relating to Easterlin
Request
3. Copy of Memorandum Prepared by
Michael Brough Provided to Planning
Board
4. Map of Kennel Operation Requested by
Planning Board Member
5. Ordinance Amending UDO
6. Excerpt of Draft Minutes from February
24, 2014 Quarterly Public Hearing
7. Excerpt of Approved Minutes from March
5, 2014 Planning Board Meeting
PURPOSE: To receive the Planning Board recommendation, close the public hearing, and
make a decision on an application proposing a text amendment to the Unified Development
Ordinance (UDO) related to the required setbacks for Class 11 Kennels developed within the
Economic Development Eno High Intensity (EDE-2) general use zoning district.
As a reminder, the reconvening of this hearing is solely to receive the Planning Board
recommendation and any additional written evidence submitted since the February 24, 2014
Quarterly Public Hearing. This hearing is not intended to solicit additional input from the public
or the applicant. While the BOCC may ask staff questions related to the review of a given item,
comments from the public shall not be solicited.
BACKGROUND: This item was presented at the February 24, 2014 Quarterly Public Hearing.
The applicants, Mrs. and Mr. Donna and Donald Easterlin, operate a Class 11 Kennel at 5908 US
Highway 70 East in the Eno Township. This kennel operates under an existing Class B Special
Use Permit issued in 1986 to the original property owner.
The UDO requires all Class 11 Kennels observe a 150 foot setback from all property lines for
buildings or exercise yards. The current configuration of the exercise yards do not comply with
this standard.
2
The Easterlins indicated they are unable to comply with this requirement and have proposed a
text amendment allowing for a 25 foot setback to be observed when a Class II Kennel is
developed within, and is adjacent to, property zoned EDE-2.
If approved the text amendment will only impact Class II Kennels developed within the EDE-2
zoning district and will not be applied in other general use zoning districts where such facilities
are allowed. Changing the standard, however, will set a precedent that could lead to future
requests to change the standards for other situations.
Agenda materials from the February 24, 2014 Quarterly Public Hearing can be viewed at-
http://orangecountync.gov/occlerks/140224.pdf
During the public hearing the following comments and questions were asked-
1. A BOCC member asked if the applicant could apply for a variance.
STAFF COMMENT. Staff and the Easterlins' attorney, Mr. Michael Brough of the
Brough law firm, indicated it was their professional opinion applying for a variance was
not a viable option as there would be difficulty for the applicant to prove this was not a
self-induced hardship or that somehow they were experiencing a unique hardship from
other kennel operations throughout the County.
These are some of the required findings allowing for the issuance of a variance as
outlined within Section 2.10 of the UDO.
2. A BOCC member expressed concern over different accounts from staff and the applicant
over when there was disclosure of the 150 foot setback requirement.
STAFF COMMENT. Staff stands by its statement(s) indicating the Easterlins were aware
of the 150 foot required setback for kennel operations as currently detailed in Section
5.6.5 (A) (2) of the UDO and has verified this account with both their surveyor, Mr. Steve
Yuhasz, and their former attorney Mr. Michael Parker.
From staff's standpoint the issue is moot. The Easterlins have been investigating
methods and opportunities for addressing compliance issues with the kennel with
Planning staff for some time and have finally determined, based on their current
attorney's advice, this is the most viable course of action available to them.
3. A BOCC member asked how many acres of the Eno Township are currently zoned EDE-
2 and how much of that is already developed.
STAFF COMMENT. There are approximately 430 acres of property zoned EDE-2 with
approximately 180 acres `developed' including underdeveloped acreage and required
yard (i.e. setback) areas.
4. A BOCC member asked if it was possible to amend the terms of the existing SUP to
reduce the setback.
STAFF COMMENT: It is possible to amend the terms of the existing SUP but the
ordinance amendment would have to be approved first. Otherwise the 150 foot setback
will still have to be observed.
SUPs cannot change or modify established development standards required by the UDO
unless there is specific language, within the standards section, allowing the reviewing
body (i.e. BOCC or Board and/or Adjustment) to impose different standards as
determined through the SUP review process.
3
5. A Planning Board member asked if there had been any complaints from adjacent
property owners related to noise or odor associated with the kennel operation.
STAFF COMMENT. No complaints had been received. The issue here is a unpermitted
expansion of the kennel in contradiction to the existing SUP.
6. A couple of BOCC members indicated they believed the request was justified given this
amendment would only impact the development of Class II Kennels in the EDE-2 higher
intensity general use zoning district.
7. A Planning Board member asked if it were possible to provide a more detailed map
detailing the location of the kennel operation on the property.
STAFF COMMENT. Please refer to Attachment 4 for the map.
An excerpt of draft minutes from the public hearing are contained within Attachment 6.
Planning Director's Recommendation: The Planning Director recommends denial of the
request based on the following-
1. There is nothing inherently significant about the EDE-2 general use zoning district
mandating kennel operations be allowed to observe a `different' setback requirement
from other non-residential general use zoning districts, where Class II Kennels are
allowed, throughout the county.
2. Permitted uses within the EDE-2 zoning district include:
a. Offices,
b. Retail (i.e. restaurants, retail sales, etc.),
c. Financial offices/uses (i.e. bank, finance agency, credit agency, brokerage house,
etc.)
d. Government uses,
e. Manufacturing, Assembly, and Processing operations,
f. Services (i.e. assembly uses, barber/beauty shops, funeral home, health care,
music/dance schools, day care, etc.)
g. Wholesale trade operations.
These uses have been deemed `permitted by right' meaning they are reviewed and acted
upon by staff through the review of a site plan.
There are other uses, including Class II Kennels, allowed in the district where the County
has determined they are required to go through a heightened level of permit review (i.e. a
Special Use Permit process acted upon by either the Board of Adjustment or Board of
Commissioners) to ensure the use is compatible with the surrounding area.
These uses are required to adhere to additional development restrictions, including
increased setbacks, to address potential impacts on adjacent properties in an effort to
ensure there are no adverse impacts.
While some of the allowable permitted uses may not be concerned over the proximity of a
kennel operation to a common property line, some might. Staff is concerned this may
limit the marketability of adjacent, undeveloped, properties.
4
3. Staff is concerned reducing the required setback to 25 feet will increase `complaints'
related to the operational characteristics of a kennel and its impacts on adjacent property
development/redevelopment.
4. Staff is not convinced the 25 foot setback currently required for `permitted land uses'
within the EDE-2 general use zoning district will provide sufficient separation from a
kennel operation and adjacent properties to ensure protection from `adverse impacts' as
required under Section 5.6.5 (A) (2) (a) of the UDO.
It is also noteworthy that even uses permitted outright may not be allowed to locate as
close as 25 feet from the property line if they cannot meet established performance
standards, as detailed within Article 6 of the UDO, related to uses such as noise and
vibration. Proposed uses could conceivable be required to locate further than
established minimum setbacks from a given property line to mitigate identified impacts.
The 25 foot setback is a minimum setback. It may be increased for those land uses that
produce impacts to adjacent properties in order to mitigate them.
Planning Board Recommendation: At its March 5, 2014 regular meeting, the Board voted 6 to 2
to recommend denial of the proposed text amendment consistent with the staff
recommendation. Agenda materials from this meeting can be viewed at:
http://orangecountync.gov/planning/documents/3.5.14PBPacket.pdf. An excerpt of the
approved minutes from the meeting are contained within Attachment 7.
If there is a motion to approve this item, staff has revised the applicant's proposal, contained
within Attachment 5, to make it consistent with existing UDO formatting and ensure the
proposed standards are only applicable to Class II Kennels developed within the EDE-2 general
use zoning district as proposed by the applicant.
Procedural Information: In accordance with Section 2.8.8 of the UDO, any evidence not
presented at the public hearing must be submitted in writing prior to the Planning Board's
recommendation. The Planning Board may consider additional oral evidence only if it is for the
purpose of presenting information also submitted in writing. The public hearing is held open to a
date certain for the purpose of the BOCC receiving the Planning Board's recommendation and
any submitted written comments.
FINANCIAL IMPACT: This request has been reviewed by County departments who have
determined that the approval or denial of the request would not create the need for additional
funding for the provision of County services.
RECOMMENDATION(S): The Manager recommends the Board:
1. Receive the Planning Board's recommendation;
2. Close the public hearing; and
3. Take action on the request by either:
a. Denying the request as recommended by the Planning Board and staff, or
b. Approve the text amendment as contained in Attachment 5.
5
Attachment 1
NOTICE OF JOINT PUBLIC HEARING
ORANGE COUNTY BOARD OF COMMISSIONERS
ORANGE COUNTY PLANNING BOARD
A joint public hearing will be held at the Department of Social Services, Hillsborough
Commons, 113 Mayo St., Hillsborough, North Carolina, on Monday, February 24, 2014
at 7:00 PM for the purpose of giving all interested citizens an opportunity to speak for or
against the following items-
1. Class A Special Use Permit: In accordance with the provisions of Section 2.7
Special Use Permits and Section 5.9.6 of the Orange County Unified Development
Ordinance (UDO), Strata Solar and Stout Farm LLC have submitted a Class A
Special Use Permit application seeking to develop a solar array/public utility
station on two parcels of property, totaling approximately 52 acres in area, off of
Redman Road between the railway and Interstate 85/40 in Cheeks Township.
Strata Solar intends to lease the parcels, with Parcel Identification Numbers (PIN) of
9844-06-5971 and 9844-17-2687, owned by Stout Farm LLC to develop a 5
megawatt facility involving the erection of individual solar arrays.
The properties in question are zoned Rural Residential (R-1), Upper Eno Protected
Watershed Protection and Major Transportation Corridor (MTC) Overlay Districts.
The properties are located within the Commercial Industrial Transition Activity Node
(CITAN) land use category as denoted on the Future Land Use Map of the
Comprehensive Plan and the Urban Designated Area as denoted on the Growth
Management System Map.
Purpose: To review the item and receive public comment on the application.
2. Zoning Atlas Amendment: In accordance with the provisions of Section 2.8 Zoning
Atlas and Unified Development Ordinance Amendments of the Orange County
Unified Development Ordinance (UDO), Mr. and Mrs. Don and Donna Easterlin
have submitted an application seeking to rezone an approximately 12 acre parcel
of property located at 5908 US 70 East in Eno Township:
FROM: Economic Development Eno Low Intensity (EDE-1); Economic
Development Eno High Intensity (EDE-2); and Lower Eno Protected
Watershed Protection Overlay.
TO: Economic Development Eno High Intensity (EDE-2) and Lower Eno
Protected Watershed Protection Overlay.
The parcel in question is currently split zoned with a Parcel Identification Number
(PIN) of 0803-11-5662. Approximately 8.6 acres of the property is zoned EDE-2
with the remaining acreage (approximately 3.4 acres) zoned EDE-1.
The property is currently utilized to support a Class II Kennel operation and a
telecommunications tower. Kennels are a permitted use of property, subject to the
6
issuance of a Class B Special Use Permit, in the EDE-2 zoning district and are
prohibited within the EDE-1 zoning district. According to the application, Mr. and
Mrs. Easterlin are requesting the rezoning to eliminate the existing split zoning and
ensure the kennel operation is entirely contained within the EDE-2 general use
zoning designation.
The property subject to this petition is located within the Economic Development
Transition Activity Node land use category as denoted on the Future Land Use Map
of the Comprehensive Plan and the Urban Designated Area as denoted on the
Growth Management System Map.
Purpose: To review the item and receive public comment on the application.
3. Unified Development Ordinance (UDO) Text Amendment: In accordance with
the provisions of Section 2.8 Zoning Atlas and Unified Development Ordinance
Amendments of the UDO, Mr. and Mrs. Don and Donna Easterlin have submitted an
application seeking to amend Section 5.6.5 (A) (2) (b) Kennels (Class 11) —
Standards of Evaluation to reduce required setbacks for Class II Kennels
developed within the EDE-2 zoning district.
Section 5.6.5 (A) (2) (b) of the UDO requires a Class II Kennel operation, including
outdoor runs, exercise yards, or buildings where animals are housed, to observe a
150 foot setback from property lines.
According to the application, Mr. and Mrs. Easterlin operate a Class II Kennel at
5908 US 70 East, the majority of which is zoned EDE-2. Portions of the operation,
permitted under an existing Special Use Permit issued on March 10, 1986, are within
the required 150 foot setback.
The proposed amendment would reduce the required setbacks for Class II Kennels,
developed within the EDE-2 zoning district, to 25 feet which is the typical setback
required for structures developed within the district.
Purpose: To review the item and receive public comment on the application.
4. 2030 Comprehensive Plan and Unified Development Ordinance (UDO) Text
Amendments and Zoning Atlas Amendments: In accordance with the provisions
of Section 2.3 Comprehensive Plan Amendments and Section 2.8 Zoning Atlas and
Unified Development Ordinance Amendments of the Unified Development
Ordinance, the Planning Director has initiated an amendment to the text of the 2030
Comprehensive Plan and the Unified Development Ordinance and to the Zoning
Atlas.
The purpose of these amendments is to establish two new zoning overlay
districts in the Efland area in Cheeks Township. These proposed actions are
measures to implement some of the recommendations contained in the adopted
Efland-Mebane Small Area Plan. This is virtually the same text amendment that was
heard at the November 19, 2012 quarterly public hearing but the text amendment
was not adopted in 2013.
7
In the 2030 Comprehensive Plan, the Land Use and Zoning Matrix contained in
Appendix F is proposed to be amended by adding a checkmark to potentially allow a
special zoning overlay district in the following land use classifications: 20-Year
Transition, Commercial Transition Activity Node, Commercial-Industrial Transition
Activity Node, and Economic Development Transition Activity Node.
The following Sections of the UDO are proposed for amendment: 2.5.7 and 4.4.
Additionally, existing Sections 4.5 and 4.6 will be renumbered to 4.7 and 4.8,
respectively. New Sections 4.5 and 4.6 will be inserted to establish the new zoning
overlay districts. Existing Section 6.6.3 will be renumbered to be 6.6.5 and new
Sections 6.6.3 and 6.6.4 will be inserted to establish standards for the two proposed
zoning overlay districts.
The proposed renumbering will also affect references to the sections proposed for
renumbering. References will be updated in the following existing Sections: 4.5.1
(which will also be renumbered to 4.7.1), 6.8.12, and 7.13.2.
The Zoning Atlas is proposed to be amended in order to depict the geographic
extent of the two overlay districts.
The general geographic extent of the proposed "Efland Village Overlay District" is
the railroad tracks that run through Efland to slightly north of U.S. Highway 70 with
west-east boundaries of the Harding Road area and Gym Road.
The general geographic extent of the proposed "Efland Interstate Overlay District" is
the railroad tracks that run through Efland to Interstate 40/85 with west-east
boundaries of a line between Gaines Chapel Road and Center Street and the U.S.
70 Connector.
A map depicting the proposed overlay districts is available on the Planning
Department's website at: http://orangecountync.gov/planning/SpecialProjects.asp
Single-family residential uses are not subject to the proposed overlay districts.
Purpose: To review the item and receive public comment on the proposed text and
zoning atlas amendments.
5. 2030 Comprehensive Plan and Unified Development Ordinance (UDO) Text
Amendments: In accordance with the provisions of Section 2.3 Comprehensive
Plan Amendments and Section 2.8 Zoning Atlas and Unified Development
Ordinance Amendments of the Unified Development Ordinance, the Planning
Director has initiated an amendment to the text of the 2030 Comprehensive Plan
and the Unified Development Ordinance and to the Zoning Atlas.
8
The purpose of these amendments is to establish a zoning program commonly
referred to as Agricultural Support Enterprises (ASE). This text amendment
would establish the ASE program outside of the Rural Buffer land use
classification, as depicted on the Future Land Use Map of the 2030
Comprehensive Plan. This is a program that has been in development since 2001.
In the 2030 Comprehensive Plan, the Land Use and Zoning Matrix contained in
Appendix F is proposed to be amended by adding an ASE-CZ zoning district that
would potentially be allowed in the following Land Use Classifications: Commercial
Transition Activity Node, Commercial-Industrial Transition Activity Node, Rural
Residential, Agricultural Residential, Rural Community Activity Node, Rural
Neighborhood Activity Node, and Rural Industrial Activity Node.
The following Sections of the UDO are proposed for amendment: 2.4.3, 2.5.2, 3.8,
numerous Sections in Article 5 (including the Table of Permitted Uses), 6.2.5, 6.2.6,
6.4.10, 6.8.6, 6.9.7, and Article 10 (Definitions).
The purpose of the Agricultural Support Enterprises program is to accommodate
appropriate uses farmers outside of the Rural Buffer land use classification can
pursue in order to generate additional farm-related income and to potentially allow
farming support/related uses in rural areas while minimizing any adverse impacts on
adjoining property by applying special standards for specific uses and the
development requirements in the County's UDO for all projects. Examples of the
most intensive uses include Agricultural Processing Facility, Farm Equipment
Rental/ Sales and Service, Meat Processing Facility, Stockyards/ Livestock Markets,
Winery with Major Events (more than 150 people). Examples of the least intensive
uses include Community Farmers Market, Cooperative Farm Stand, Rural Special
Events (150 people or less), Veterinary Clinic, Winery with Minor Events (150 people
or less). By better enabling farmers to stay in the business of farming, the rural,
farming heritage of Orange County will continue to be preserved.
Additional information about this topic is available on the Planning Department's
website at: http://orangecountync.gov/planning/SpecialProjects.asp
Purpose: To review the item and receive public comment on the proposed text
amendments.
PUBLIC INFORMATION MEETING
for the Agricultural Support Enterprises proposal
In an effort to better inform interested persons in an informal setting, a Public
Information Meeting will be held on Thursday, February 13, 2014. Interested
persons will have the opportunity to hear a presentation and ask questions
about the proposed amendments. The Public Information Meeting will be
held in the Food Lab of the Environmental and Agricultural Center located at
306 Revere Road in Hillsborough and will begin at 6:00 p.m.
9
6. 2030 Comprehensive Plan and Unified Development Ordinance (UDO) Text
Amendments: In accordance with the provisions of Section 2.3 Comprehensive
Plan Amendments and Section 2.8 Zoning Atlas and Unified Development
Ordinance Amendments of the Unified Development Ordinance, the Planning
Director has initiated an amendment to the text of the 2030 Comprehensive Plan
and the Unified Development Ordinance and to the Zoning Atlas.
The purpose of these amendments is to establish a zoning program commonly
referred to as Agricultural Support Enterprises (ASE). This text amendment
would establish the ASE program within the Rural Buffer land use classification,
as depicted on the Future Land Use Map of the 2030 Comprehensive Plan.
In the 2030 Comprehensive Plan, the Land Use and Zoning Matrix contained in
Appendix F is proposed to be amended by adding a checkmark to potentially allow
the ASE-CZ zoning district in the Rural Buffer land use classification.
The following Sections of the UDO are proposed for amendment: 3.8 and several
sections in Article 5, including the Table of Permitted Uses and Sections that are not
currently adopted but would be adopted as part of "ASE outside of the Rural Buffer'
(item #6 above).
The purpose of the Agricultural Support Enterprises program, as it applies to the
Rural Buffer land use classification, is to accommodate appropriate uses farmers
can pursue in order to generate additional farm-related income and to potentially
allow appropriate farming support/related uses in the Rural Buffer while minimizing
any adverse impacts on adjoining property by applying special standards for specific
uses and the development requirements in the County's UDO for all projects.
Examples of the most intensive uses include Agricultural Processing Facility, Farm
Equipment Rental/ Sales and Service, Meat Processing Facility, Stockyards/
Livestock Markets, Winery with Major Events (more than 150 people). Examples of
the least intensive uses include Community Farmers Market, Cooperative Farm
Stand, Rural Special Events (150 people or less), Veterinary Clinic, Winery with
Minor Events (150 people or less). Projects in the Rural Buffer must also conform to
the Joint Planning Area Land Use Plan/Agreement which is a joint planning effort
between Orange County and the Towns of Chapel Hill and Carrboro. By better
enabling farmers to stay in the business of farming, the rural, farming heritage of
Orange County will continue to be preserved.
Additional information about this topic is available on the Planning Department's
website at: http://orangecountync.gov/planning/SpecialProjects.asp
Purpose: To review the item and receive public comment on the proposed text
amendments.
10
PUBLIC INFORMATION MEETING
for the Agricultural Support Enterprises proposal
In an effort to better inform interested persons in an informal setting, a Public
Information Meeting will be held on Thursday, February 13, 2014. Interested
persons will have the opportunity to hear a presentation and ask questions
about the proposed amendments. The Public Information Meeting will be
held in the Food Lab of the Environmental and Agricultural Center located at
306 Revere Road in Hillsborough and will begin at 6:00 p.m.
7. Unified Development Ordinance (UDO) Text Amendment: In accordance with
the provisions of Section 2.8 Zoning Atlas and Unified Development Ordinance
Amendments of the Unified Development Ordinance, the Planning Director has
initiated amendments to the text of the Unified Development Ordinance (UDO).
The purpose of the amendments is to change the existing public hearing process
for Comprehensive Plan-, UDO-, and Zoning Atlas-related items/amendments.
The following Sections are proposed for amendments: 2.1, 2.3, 2.7, 2.8, 5.10.2.
The proposed amendments would replace the existing joint Board of County
Commissioners (BOCC)/Planning Board quarterly public hearings with a minimum of
eight (8) BOCC-only public hearing dates per year. The Planning Board would make
its recommendation to the BOCC after the public hearing but a quorum of Planning
Board members would no longer be necessary to hold a public hearing.
Purpose: To review the item and receive public comment on the proposed
amendments.
Substantial changes in items presented at the public hearing may be made following the
receipt of comments made at the public hearing. Accommodations for individuals with
physical disabilities can be provided if the request is made to the Planning Director at
least 48 hours prior to the Public Hearing by calling the one of the phone numbers
below. The full text of the public hearing items may be obtained no later than February
14, 2014 at the County website www.co.orange.nc.us at the Meeting Agendas link.
Questions regarding the proposals may be directed to the Orange County Planning
Department located on the second floor of the County Office Building at 131 West
Margaret Lane, Suite 201, Hillsborough, North Carolina. Office hours are from 8:00 a.m.
to 5:00 p.m. Monday through Friday. You may also call (919) 245-2575 or 245-2585 and
you will be directed to a staff member who will answer your questions.
PUBLISH: The Herald Sun News of Orange
February 12, 2014 February 12, 2014
February 19, 2014 February 19, 2014
Attachment 2 11
Michael Harvey
From: Donna Baker
Sent: Thursday,February 27,2014 8:56 AM
To: Michael Harvey
Subject: FW:Sunny Acres Pet Resort zoning
Donna Baker
Clerk to the Board
P.O. Box 8181
200 South Cameron St.
Hillsborough, N.C. 27278
Phone: (919)245-2130
Fax: (919)644-0246
Cell: (919)428-3212 1
dbaker@orangecountVnc.gov
From: Nick England [mai Ito:nick.enoland@3rdtech.coml
Sent: Monday, February 24, 2014 12:04 PM
To:ALL BOCC MANAGER CLERK
Subject: Sunny Acres Pet Resort zoning
Dear Commissioners:
I am writing to support Sunny Acres Pet Resort in their request to continue their Doggy Day Camp business.
It is my understanding that Sunny Acres is a very desirable business that evidently has no negative impact on
the neighborhood(having been in existence for many years), is located in the proper zoning area,has a very j
positive economic impact and provides local employment in these tough times, and makes a really positive
contribution to the life of dogs and their humans(like me). They are truly friendly people and provide a great
service to the community.There are many dog owners in the area who definitely need Sunny Acres to provide
the valuable exercise and playtime socialization to keep their dogs healthy and happy.
I understand that this long-established well-liked business had the proper Special Use permit when they fenced
in their exercise areas, but now they are being required to meet a 150' setback rule that wasn't even in place
when they installed these fences. +?
I
Please do whatever is necessary to change or fix the rules to allow these people to continue their valuable
service and contributions to the economic health of the community. It will surely be a travesty if these fine
people are forced to close a valuable local business even when they acted in good faith and in accordance with
all the rules.
Nick England
(also writing for Emma the springer spaniel) l
811 Kenmore Rd I
Chapel Hill NC 27514
- 1
i
12 I
Michael Harvey
From: Alice Gordon <gordon.alice @gmail.com>
Sent: Wednesday, March 05, 2014 3:45 PM
To: Peter Eckhoff
Cc: Michael Harvey;Craig Benedict; Michael Talbert
Subject: Re:Public Hearing Action Item No.C.3 (Sunny Acres)
Dear Mr.Eckhoff,
Thank you for your email. My understanding is that your
comments should be included in the public record for
this matter.
However, by copy of this einail to key members of the
county staff, I am asking that one of them reply to you
to tell you the status of your comments, and whether
you need to do anything else, and also asking that they
send a copy of that response to me. I anticipate
that you would receive a response in the next
few days.
I am sending this email to you in response to your
email and also to your telephone call today about
this matter.
If you need anything else,please let me know. I
Regards,
Alice Gordon
On Wed,Feb 26,2014 at 12:20 PM,Peter Eckhoff<pge off a,nc.n.com>wrote:
i
To: Orange County Board of Commissioners
Orange County Planning Board
Quarterly Public Hearing Agenda
February 24,2014
Action Agenda Item No. C.3
From:Peter Eckhoff, Sunny Acres Customer
c
i
Subject: Unified Development Ordinance Text Amendment Related to Setbacks for Class II Kennels �
Developed in the EDE-2 General Use Zoning District
My background is that I have been a customer of Sunny Acres Pet Resort for 4.5 years and my dog still drags
me to their front door even after having been boarded there for 2.5 months several years ago.
Attached are 3 figures: i
1) Figure 1 is a Google Earth macro view of the area surrounding Sunny Acres. I-85 is at the top of the map
and Hwy 70 is near the bottom. The map depicts undeveloped wooded land surrounding the exercise yards.
2) Figure 2 is a copy of the map on page 75 of the above agenda. The 150 foot offset clearly overlays a
number of Day Camp exercise yards.
3) Figure 3 is the proposed ordinance wording changes.
My concern is that any downsizing of the dog exercise yards will decrease my chances of bringing my dog there
for exercise and possible boarding. The reason for this is that the dogs have to be separated based on
temperament, size, and ability to get along with other dogs;thus the-heed for a number of exercise yards.
I propose that the ordinance be held in abeyance for several reasons:
1) At this time,there is no evidence of any proposed development that would warrant moving the fences.
2) There is the possibility that the Easterlins could purchase the surrounding property thereby.making moot
the need to move the fences at this time.
3) There have been no neighbor complaints.
4) By moving the fences,the Sunny Acres operation would be degraded with the worse-case scenario being
that: 1)Sunny Acres would go out of business,2)a lot of customers would lose what they consider to be a well-
run boarding kennel and day camp as noted by several independent awards, 3) Orange County would lose
revenue, 4)25 people would lose employment and 5)a family would lose their basis of income and livelihood.
5) The Easterins in appreciation of the abeyance,could establish an account for bringing the property into
compliance with any resulting ordinance amendments. Compliance would commence upon the approval of the
first application for development adjoining the exercise yards or upon purchase of adjoining property by the
Easterlins. This could be accomplished in the form of a Compliance Decree submitted into the public record.
I understand the need for ordinances and their enforcement and I appreciate the opportunity to convey their
situation from the point of view as one of their customers. I think the above is a win-win solution for all
concerned. Feel free to contact me.
Sincerely,
Peter Eckhoff
9 Sedley Place
2
Durham,NC 27705
14
Cell: 919 597-8391
Email:peckhoffgnc.rr.com
it
78
Figure 1: Google Earth macro view of the area surrounding Sunny Acres outlined in blue. I-85 is at the top of
the map and Hwy 70 is near the bottom. The map depicts undeveloped wooded land surrounding the exercise
yards in the upper left hand corner of the property outline.
3
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16
SMUOn i. Subsection 5.6.5(A)(2)(b)of the UDO is amended to read as Follows:
- ! I ,P�L'LISt s f is utection,ad part of
any building,skructcrrv,doh run, pen,or exercise yard in which animals acre housed or exercised
shall be Closer than I 50 feet from a property lino,ercccpt property tfccupiad by the
+�wnerloperator of the kennel.
(i) �'tto t5�Cont set ack ��?}is ���1his sectiotl +ese�in�crws-�tanc-�alynll
not apply ifall portions of the facility in which anirrials are housed ace whol}y
enclosed within a building. hZor shaR is setba� c - pp1v to-do ' t
erg each dou rs tmdc h i rin nit Activities
e-� t,�lediatitrr�( fts �ine�gti�n
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Section 2. All provisions ofany Courtly ordinance in conflict whit this ordinance rcpealetl. arc
Section 3.This Ordinance shall beoomc effoctive upon adoption.
Figure 3: Proposed ordinance wording changes from the above mentioned agenda.
5
t
f
17
Michael Harvey
From: donna_sunnyacres @ yahoo.com
Sent: Monday,February 24,2014 4:03 PM
To: Michael Harvey,donna_sunnyacres @yahoo.com
Subject: Website Feedback:Sunny Acres Pet Resort
From: Donna Easterlin
Phone Number: 9192806708
Message:
February 24,2014
Dear Orange County Commissioners and Michael Harvey: !
As you are probably aware,we are requesting an amendment to the required setbackfor Class II Kennels and rezoning
of 2 properties.
In January 2005 my husband and I took over management of the Durham Boarding Kennel dba Sunny Acres Pet Resort.
According to the original site plan,fencing was approved on the property line and a portion was on the property line
when we assumed ownership.The previous owners were using this fenced in area to take dogs outside.There was also
barbed wire fencing on the rest of the property line to the north and west.Shortly after taking over,we replaced the
barbed wire fencing with chain link.We did not think it would be a problem since there was already fencing on the
property line.This fencing has been in place now for many,many years.
With thoughts of expansion in mind,we purchased 4 more adjacent properties between 2004 and 2010.Under the
current zoning two of those properties totaling over 4 acres were left in the EDE-1 district.Our plan for the future was to
combine these properties and extend the Special Use Permit allowing for growth of the business.Rezoning of these 2
properties to EDE-2 would allow us to do that.
The adjacent property owners have�had no problem with us leaving our fences where they are now located.It is all
woods on the outside of our fences.There are no homes or businesses currently located there.We were recently told it
could be many years before city sewer would be available in this area making development next to impossible without
sewer. Highway 85 is on the north side of the woods and an asphalt plant is on the west side of the woods.We have
never had any complaints from any of our neighbors concerning noise or smell.We keep the entire property clean and
odor free. Dogs are only outside for a portion of the daytime hours,At night they art all housed inside buildings.
We did not knowthere was a 150 foot setback when we purchased the property. It is not mentioned In the Special Use
Permit and we were never informed of this when we purchased the property.If we had known,we would not have
purchased the property.Since some of the fences were already on the property line we were actually surprised to learn
this.We understand the setback is for noise control.However,as I mentioned,there is no one close to our outside play
areas that would be impacted by noise.
We have provided a well-needed service to over 100,000 pets over the past 9 years.Many people work all day and.
travel.They need a safe,secure,clean place for their pets to stay. People don't think of their pets as animals anymore.
They are just like their children,one of the family.It is important for people to have peace of mind and feel good about
leaving their pets when they have to be away traveling or at work all day.Pets need outdoor space to run,play and get
exercise.Some pets have separation anxiety and just can not be left home or they will destroy the house or hurt
themselves.We provide the care they need. One of the reasons our customers like us so much is because we can
provide the outdoor space for exercising them.They don't want their pets shut up inside all day.
1
i
.i
If we have to adhere to the 150 foot setback we will lose all of our exercise yards.There would not be any land left to
have outdoor play yards.That would be devastating for the pets,pet parents,and 25 employees that serve these
customers.We would lose the majority of our business.We will all be without jobs and the community loses a much
needed service. Even if the setback is reduced to 25 feet it will impact our business.We actually need more space to
exercise the pets,not less, At 25 feet we would have to move all of our fences(making all of the yards smaller)or
purchase property from the adjacent owners(if that is possible)to create an unnecessary setback in our particular case.
The cost to move fences or purchase property from the adjacent owners would create a huge financial burden for us.I
would rather give our employees a raise than spend unnecessary money to move fences or purchase property. It would
also incur down time creating a hardship for the parl
ents who need a place to leave their pets while they work.
I know we have requested an amendment to change the setback from 150 feet to 25 feet,but we feel It would be in the
best interest of the community,the pets,the owners of the pets,the employees,and owners ofSunny Acres,to please
allow us to leave our fences where they are now located and continue serving the community as we now do.The fences
have been in place for almost 9 years now.There has never been a complaint from anyone.
I
Please consider our situation based on these facts and not just because there is a a?orulea? : I
The fences are already in place and most of them have been for the 9 years we have been here.
There is no one that is or would be bothered by noise or smell
We are a much needed service to the community and pets.
Keeping the outdoor exercise yards as we now have them benefits everyone.
The Durham Boarding Kennel has been in existence for over 40 years now.
It's part of Orange County history.
Please don't put us out of business.
i
We also support several organizations in the community.We give financial support to the local shelters and rescue
groups.We offer our boarding services at a discount to rescues.We offer free rental of our facility to rescue groups for
events like adoptathons and fundraisers to save the lives of pets. '
Sunny Acres Pet Resort is here for the love of pets.We want the best for them.
Thank you for your consideration.
Respectfully yours,
Donna Easfierlin
i
2
i
Attachment 3
19 1
MEMORANDUM
Memorandum to: Orange County Planning Board
From: Michael B. Brough,Attorney for Don and Donna Easterlin
Subject: Proposed UDO text amendment dealing with setback requirements for
Kennel II uses in EDE-2 zoning district
Date: March 5,2014
This memo responds to several points made in the Agenda Abstract relating to the request by the
Easterlins for an amendment to the UDO that would reduce the setback applicable to Kennel 1I
uses in the EDE-2 zoning district from 150 feet to twenty-five feet, which is the setback distance
required for other uses in that district. Importantly, the reduced setback would apply only where
the Kennel II use in the EDE-2 zoning district adjoins other property zoned EDE-2.
i
1. The Abstract correctly states that I am in agreement with staff that seeking a variance
from the 150' setback requirement is not a viable option for the Easterlins, although not
exactly for the reasons stated in the Abstract. The problem with obtaining a variance is
not that the hardship faced by the Easerlins was "self-induced." The problem is that, to
qualify for a variance, the ordinance requires a showing that the hardship be caused by
"conditions peculiar to the property, such as location, size, or topography." However,
the hardship experienced by the Easterlins in this case is not caused by the uniqueness of
their property in terms of location, size, or topography, but by the fact that the costs of
complying with the ordinance are high and the regulation serves no useful purpose when
the Kennel II use is located in the EDE-2 district and the adjoining property is also zoned
EDE-2. This presents a legislative issue for the Board of Commissioners, not a variance
issue for the Board of Adjustment.
2. The Abstract states that the Easterlins contend that they are unable to comply with the
150' setback requirement. To clarify,if the portion of their property now zoned EDE-1 is
rezoned EDE-2 (as requested by Agenda Item 8), it would be physically possible to j
create alternative exercise yards by fencing in some portion of this area. The aerial
photo submitted by the staff shows an area circumscribed by a black line that depicts the
portion of the site that complies with the 150' setback requirement. But much of this area
cannot practically be used as an exercise yard, either because it is covered by buildings or
trees or is steeply sloped or is within the fall line of the existing cell tower. More
importantly, the cost of enclosing this area by a chain link fence at least six feet high
creates an economic hardship for a small business,with no corresponding benefit.
3. The Easterlins agree with the statement in the Abstract that the issue of when they
learned about the 150' setback requirement is moot. It is clear that neither the 1986
special use permit nor the 2006 violation letter indicates that such a setback is required,
and the Easterlins continue to maintain that, whatever their attorney or surveyor may
20
have known,they were not aware of this setback at the time they purchased the property.
But when the Easterlins learned of the 150' setback is not the issue before the Planning
I
Board. The issue is whether the ordinance should be amended to eliminate the 150'
setback for Kennel II uses under circumstances where that requirement makes no sense
(i.e. where the Kennel II property is zoned EDE-2 and adjoins other property zoned EDE-
2)and creates real economic hardship for an existing business.
4. The applicants submit that it- is entirely legitimate to draw a distinction between
circumstances where the 150' setback may be warranted and circumstances where it is
not Justified. Where the Kennel.11 property adjoins land that -is zoned to .permit
residential and other lower intensity uses, perhaps the 150' setback, serves a usefiil
purpose. But the EDE-2 is specifically described as a "higher intensity" use district,
designed to accommodate a full range of manufacturing and similar uses. Residential
uses are not permitted. If a pharmaceutical manufacturing plant or lumber yard could be
located within 25' of the property line in an EDE-2 district, there is no reason why the
ordinance should require a setback that is six times greater than that for a Kennel II use.
If there are other circumstances where the 150' setback for Kennel 1I uses is not
warranted, the County can address them at a later time. The point here is that
applicability of the 150' setback requirement is not an"all or nothing"proposition. The
setback is not appropriate in the limited circumstances addressed by the proposed
amendment, and the amendment should receive a favorable recommendation by the
Planning Board.
f
Attachment 4 - Map 21
The Black line identifies the area of the property
complying with the150 foot setback requirement.
NOTE the 150 foot setback does not apply if
the operator of the kennel 'ownes or controls'
external property. In these cases the
underlying setback standards for the
district would apply(i.e. 25 feet).
The Easterlin's own the 2 external properties
with frontage along US Highway 70 East
The red liine indicates the
boundary of the property
where the kennel is located.
The blue line identifies the
existing fence line '
� X20
f _ �
Lower no
Protected Watershed
y
i�tr�x e
Data shown on this map is obtained from Orange County
GIS and is for reference only
Exact locations and boundaries should be verified.
Map prepared by Orange County Planning&Inspections
USGS Water Feature p Parcels ®Zoning M 100 YR Floodplain(Effective 02/02/07) N
Soils Survey Water Feature(::J Township HE City Limits L=1 Floodway(Effective 02/02/07)
®OC Updated Water Feature F' School System Boundary O ETJ EZ-J 500 YR Floodplain(Effective 02/02/07)
O Water Body Contours Conservation Easements O Buildings
® Held b Others 1 inch=200 feet
O River Basins [L=d County Boundary y =water and Sewer Boundary
®Watershed `;;Soils ®Orange County 0 75 150 3ooeet
Conservation Easements
Ordinance #:
ORD-2014-017 Attachment 5 22
AN ORDINANCE AMENDING
THE UNIFIED DEVELOPMENT ORDINANCE OF ORANGE COUNTY
WHEREAS, Orange County has received a proposal from Mr. and Mrs. Donald and
Donna Easterlin to amend Section 5.6.5 of the Unified Development Ordinance (UDO)
with respect to required setbacks associated with the development of Class II Kennels
within, and developed adjacent to, the Economic Development Eno High Intensity (EDE-2)
general use zoning district, and
WHEREAS, the Easterlins believe the amendment is reasonable, is consistent with
the purpose and intent of the EDE-2 general use zoning district, and is consistent with the
provisions of the Orange County Comprehensive Plan, and
WHEREAS, the requirements of Section 2.8 of the Unified Development Ordinance
have been deemed complete, and
WHEREAS, the County has found the proposed text amendments to be reasonably
necessary to promote public health, safety and general welfare and to achieve the
purposes of the adopted Comprehensive Plan, and
WHEREAS, pursuant to North Carolina General Statute 153A-341 and Section 1.1.7
of the Unified Development Ordinance, the Board of Commissioners of Orange County
has found the proposed text amendments to be consistent with the goals and policies of
the adopted Comprehensive Plan.
BE IT ORDAINED by the Board of Commissioners of Orange County that the Unified
Development Ordinance of Orange County is hereby amended as depicted in the attached
pages.
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 Commissioner , seconded by
Commissioner , the foregoing ordinance was adopted this
day of 2014.
23
I, Donna S. Baker, Clerk to the Board of Commissioners for Orange County, DO
HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said
Board at a meeting held on , 2014 as relates in any way to
the adoption of the foregoing and that said proceedings are recorded in the minutes of the
said Board.
WITNESS my hand and the seal of said County, this day of
, 2014.
SEAL
Clerk to the Board of Commissioners
Article 5: Uses 24
Section 5.6: Standards for Commercial Uses
5.6. Junkyards
(A Standards for Class A Special Use Permit
Submittal Requirements—
addition to the information required by Section 2 7, t ollowing information
sha e supplied as part of the application for appr I of this use:
(a) D iled plans and specifications for a site screening proposed.
(b) Descrip of type and numb of motorized machines to be employed
upon site.
(c) Indicate on the site n the extent of area to be used for the storage of
junked or wrec d mot ehicles
(2) Standards for aluation -
(a) T site shall be screened from adja t property by a minimum of an
eight foot high solid fence or equal, unin upted except for required
vehicle access points.
i
(b) No materials shall be stored closer than 50 feet to t ublic right of way
or 30 feet to the property lines.
(c) Site is of adequate size to protect adjacent properties from ad se
effects of the junkyard.
5.6.5 Kennels (Class II)
(A) Standards for Class B Special Use Permit
(1) Submittal Requirements—
In addition to the information required by Section 2.7, the following information
shall be supplied as part of the application for approval of this use:
(a) Plans for all kennels, exercise yards, dog runs, pens and related
improvements, including signage.
(b) Site plan showing the improvements listed in a) above, other structures
on the same lot, and structures on adjacent property.
(2) Standards of Evaluation—
(a) The site is of adequate size to protect adjacent properties from adverse
effects of the kennel.
(b) No part of any building, structure, dog run, pen, or exercise yard in which
animals are housed or exercised shall be closer than 150 feet from a
property line, except property occupied by the owner/operator of the
kennel.
(i) Thpsp mini mum distange The 150 foot setback established by
this section shall not apply if all portions of the facility, in which
animals are housed, are wholly enclosed within a building.'
(ii) For Class II Kennels developed within the EDE-2 zoning district
this setback shall not apply to dog training activities where each
dog is under the immediate control of its trainer, owner, or other
responsible individual.
' This is an existing standard being modified by the applicant. Staff has no concern related to the modification.
2 As originally written by the applicant this would apply to all Class II Kennels,not just those in the EDE-2 zoning
district. Staff has modified the language to ensure it only applies to kennels in the EDE-2,consistent with the
advertised public hearing,and the stated intent of the applicant.
Orange County,North Carolina—Unified Development Ordinance Page 5-43
Article 5: Uses 25
Section 5.6:Standards for Commercial Uses
(iii) For Class II Kennels developed within the EDE-2 zoning district,
all buildings, structures, doq runs, pens, or exercise yards in
which animals are housed or exercised shall observe the
principal setbacks established within Section 3.7 of the UDO in
those instances where the property abuts other EDE-2 zoned
Property and US Highway-Z-0-11."
(b) Any kennel, including primary enclosures or runs,which is not wholly
enclosed within a building shall be enclosed by a security fence at least
six feet in height.
(c) The site plan shows parking,access areas and screening devices for all
buildings and animal boarding facilities existing or proposed for the
property.
(d) The site plan shall be reviewed by the Orange County Animal Services
Department, and found in conformance with the Animal Control
Ordinance.
(e) Building plans for all kennel facilities shall be reviewed and approved by
the Orange County Animal Services Department prior to issuance of any
building permits.
(f) A sign clearly visible from the ground shall be posted at the main
entrance to the facility and shall contain the names, addresses, and
telephone numbers where persons responsible for the facility may be
contacted at any hour of the day or night. The sign shall comply with
dimensional requirements as set forth within this Ordinance.
(g) A Class II Kennel Permit shall be obtained from Orange County Animal
Services within the first 30 days of occupancy. Failure to obtain and
maintain a valid Class II Kennel Permit or other related permits which
may be required by the USDA or Wildlife Resources Commission will
result in revocation of the Special Use Permit.
5.6. iding Stables
(A) ards for Class B Special Use Permit
(1) Sub ' Requirements—
In addition to the ation required b ion 2.7, the following information
shall be supplied as part a . a ion for approval of this use:
(a) Plans for all b boarding . . ies, exercise yards, riding arenas, and
relate ' rovements, including signs
(b Site plan showing the improvements listed in a)a other structures
on the same lot, and structures on adjacent property.
(2) Standards of Evaluation—
s Per Section 3.7 of the UDO the required setback for all structures developed within EDE-2 is 25 feet from property
lines,including those properties with frontage along US Highway 70. Staff has combined the applicant's proposed
subsection(s)(ii)and(iii)in Attachment 2 into a central section.
4 This text amendment will need to generate a comprehensive re-assessment of required setbacks for Class II Kennel
operations within all non-residential zoning districts(Community Commercial CC-3 and General Commercial GC-
4). In staff's opinion there is no justification to treat kennels developed within the EDE-2 district differently from
other non-residential general use districts. If this text amendment is approved,staff recommends a separate
discussion item at a future Planning Board meeting to review the 150 foot setback requirement in all non-residential
general use zoning district designations. There may be a need to modify this regulation in the future to ensure equity
for property owners seeking to develop a Class II Kennel and establish a framework where the setback could be
reduced.
Orange County, North Carolina—Unified Development Ordinance Page 5-44
Attachment 6 26
Excerpt of Draft Minutes
1 DRAFT
2 MINUTES
3 ORANGE COUNTY BOARD OF COMMISSIONERS
4 QUARTERLY PUBLIC HEARING
5 February 24, 2014
6 7:00 P.M.
7
8 The Orange County Board of Commissioners and the Orange County Planning Board
9 met for a dinner meeting on Monday, February 24, 2014 at 7:00 p.m. at the DSS Officers,
10 Hillsborough, N.C.
11
12 COUNTY COMMISSIONERS PRESENT: Chair Barry Jacobs and Commissioners Mark
13 Dorosin, Alice M. Gordon, Earl McKee Bernadette Pelissier, Renee Price and Penny Rich
14 COUNTY COMMISSIONERS ABSENT:
15 COUNTY ATTORNEY PRESENT: James Bryan (Staff Attorney)
16 COUNTY STAFF PRESENT: Interim County Manager Michael Talbert and Deputy Clerk to the
17 Board David Hunt (All other staff members will be identified appropriately below)
18 PLANNING BOARD MEMBERS PRESENT: Planning Board members Maxecine Mitchell,
19 Johnny Randall, Paul Guthrie, Herman Staats, Tony Blake, and H.T. "Buddy" Hartley
20 PLANNING BOARD MEMBERS ABSENT: Chair Pete Hallenbeck, Lisa Stuckey, Stephanie
21 O'Rourke, Andrea Rohrbacher and James Lea
22
23 Chair Jacobs called the meeting to order at 7:03 pm. He reviewed the following items at
24 the members' places:
25 - Booklet/Blue Sheets/Cream Sheets/PowerPoint— Item C-1 —Class A Special Use
26 Permit
27 - Letter— Item C-3 - Unified Development Ordinance (UDO) Text Amendment
28
29 A. OPENING REMARKS FROM THE CHAIRS
30
31 B. PUBLIC CHARGE
32 The Chair dispensed with the reading of the public charge.
33
34 C. PUBLIC HEARING ITEMS
35 Planning Board Member Buddy Hartley introduced this item.
36
37 3. Unified Development Ordinance (UDO) Text Amendment- To review an application
38 seeking to amend Section 5.6.5 (A) (2) (b) Kennels (Class ll) —Standards of Evaluation
39 to reduce required setbacks for Class II Kennels developed within the EDE-2 zoning
40 district.
41
42 Michael Harvey said there is no formal presentation for this item. He referred to a
43 display of the text markup. He referred to page 65 of the abstract and the proposed text
44 amendment on Attachment 1.
45
46 He said this is referring to a Class 2 kennel, which involves the keeping, boarding, care,
47 and training of more than 20 animals. He said the current requirement is a 150 foot setback
48 from all established property lines. He said the applicant is currently operating under an existing
49 Class 2 kennel permit, issued in 1986. He said the applicant has dog run areas within the
50 required setbacks, and the proposed text amendment would drop the required setback to 25
27
1 feet. He said this would, in effect, adhere to general zoning setbacks already established for
2 this district.
3
4 Michael Harvey said staff has some concerns, which are identified in the abstract and
5 the staff memorandum. He reminded the Board of an email in front of them from Mrs.
6 Easterland.
7
8 Michael Brough referenced a handout. He said the purpose of this is to correct an
9 unfortunate situation where the applicant is in violation of a zoning ordinance as a result of the
10 150 foot setback situation. He said it did not occur to the owners when the property was
11 purchased that the replacement of an existing fence would create a zoning problem. He
12 referred to a handout and a comparison of past and current site plans. He said the 1986 permit
13 was evidently in violation of the setback requirement, and the new owners were not aware of the
14 setback requirement. He said the initial notice of the zoning violation occurred back in 2006,
15 and there is no mention of the 150 foot setback requirement.
16
17 He said the amendment reduces the 150 foot setback that applies to kennel 2 uses, only
18 in the EDE-2 zoning district and where the property adjoins other property that is zoned EDE-2.
19 He said it does not apply to any other zoning district. He said the 25 foot setback would
20 continue to apply to this use, although the owners prefer to keep their existing fences where
21 they are. He said the change in ordinance only applies to the exercise yards, and it doesn't
22 apply to buildings. He referred to the proposed new language which states this. He said the
23 change to the 150 foot setback does not apply to buildings, as buildings can already go up to
24 the 25 feet.
25
26 Michael Brough said the most important aspect of the change is that the amendment
27 only applies in the EDE-2 district and where the property adjoins other EDE-2 properties. He
28 said this is important because the uses in the EDE-2 district are fairly intensive as compared to
29 other districts. He said there is low likelihood of any other type of uses in this area, due to the
30 location and lack of sewer. He said that makes this a very narrow amendment. He said the
31 benefit to the public of maintaining that 150 foot buffer is marginal, if it exists at all; however the
32 hardship that it creates for the owners is pretty extreme. He said there are no other practical
33 areas to place the exercise yards, and these are integral to maintain the business. He said
34 there are 300-400 signatures from customers and community members in support of this
35 business. He said there are 20 or more employees, whose livelihood depends on the business.
36 He noted the members of the audience in attendance to support this amendment.
37
38 Commissioner Gordon addressed Michael Harvey and referred to the staff analysis page
39 73. She asked for clarification on this, specifically items 6 through 9.
40
41 Michael Harvey said he would reject some of what Michael Brough said. He said the
42 setback being referenced was enforced in 1986, and the applicants were made aware of the
43 problem, as were their attorney and their surveyor. He said the existing language of the UDO,
44 as was enforced in 1986, indicated that the minimum setback distances would not apply if all
45 elements of the operation were in an enclosed facility; but the ordinance clearly states that all
46 buildings and runs must meet the setback requirements.
47
48 He referred to Commissioner Gordon's question and said staff's initial observation is that
49 impacts observed from kennel operation are universal and are not mitigated because the
50 operation is in a non residential district. He believes the question here is what constitutes an
51 appropriate setback for a kennel in an effort to address impacts on adjacent properties. Staff is
28
1 concerned that the reduction of the setbacks to 25 feet will increase complaints related to the
2 operation of the kennel and its impact on adjacent property development. He said staff is not
3 convinced that the 25 foot setback will provide sufficient separation from adverse impacts. He
4 said staff is also concerned that this proposal is inconsistent with the Comprehensive Land Use
5 Plan. He said staff understands the situation that the kennel is in, but it is their opinion that the
6 cons outweigh the pros.
7
8 Commissioner Gordon said it sounds like there is a situation of existing use, but the
9 remedy is to change the whole zoning ordinance.
10
I 1 Michael Harvey said that is the applicant's contention.
12
13 Commissioner Gordon asked if there is any other approach, such as a variance under
14 the Board of Adjustment, for hardship.
15
16 Michael Harvey said no, not in his opinion. He said there is an existing special use
17 permit, and the kennel is in violation of that permit.
18
19 Commissioner Price asked why the variance is out of consideration.
20
21 Michael Harvey said this facility is operating under a previously issued special use
22 permit, and the facility is now out of compliance with that permit and with the ordinance. He
23 said the kennel has to bring the site into compliance with the code in order for the special use
24 permit to remain valid and the operation to continue. He would also argue that this situation is
25 self created, and the operation has been expanded. He said, as a result, this would not qualify
26 for a variance because the hardship is not unique, and it is self induced.
27
28 Commissioner Dorosin asked if the Board could amend the terms of the conditions of the
29 special use permit.
30
31 Michael Harvey said the ordinance would have to be amended in order for the conditions
32 of the special use permit to be modified. He said the 150 foot setback applies.
33
34 Commissioner Rich questioned whether an amendment to this ordinance would mean
35 anyone with a kennel could request this change as well.
36
37 Michael Harvey said it would only apply if a kennel was in the EDE-2 zoning district. He
38 said there are no other kennels in the EDE-2 zoning district.
39
40 Commissioner Rich noted that this conversation started in 2006, and she asked what
41 has happened between 2006 and 2014.
42
43 Michael Harvey said there have been a lot of changes in attorneys and surveyors, and
44 there was no proposal to address the problem until recently.
45
46 Commissioner Pelissier asked how many acres in Orange County are zoned EDE-2.
47
48 Michael Harvey said, according to Craig Benedict, the amount is approximately 200
49 acres.
50
29
1 Commissioner McKee said he is hearing two different versions, that the setback amount
2 it was unknown, and that it was known.
3
4 Michael Harvey said he stands by his answer to the Board.
5
6 Chair Jacobs said this is that what the Board of Adjustment is for, to allow someone to
7 articulate their beliefs and then to have County staff articulate what it believes the facts to be.
8 He said there is then a rendering of an opinion on whether an exceptional situation exists, or is
9 allowed to exist.
10
11 Michael Harvey said staff issued an opinion in 2006, and that opinion was not appealed;
12 so that opinion is the full force of law. He does not believe the owners have standing to appeal
13 it now.
14
15 James Bryan said he would encourage the Board not to focus on this particular
16 petitioner. He said the Board has an obligation to consider all of the ramifications of this. He
17 said the question of how much EDE-2 is in the County, is a very relevant one. He said whether
18 this petitioner will benefit from it or not, or whether the petitioner has alternatives available to
19 them, is not a valid basis for an eventual decision.
20
21 Chair Jacobs said he feels that one of the things the Board is looking for is an alternative
22 to making a universal decision to address an individual circumstance. He asked if there is an
23 alternative avenue other than changing the buffer requirement in the entire district from 150 feet
24 to 25 feet. He said this would be to address the difference of opinion, interpretation,
25 understanding or experience.
26
27 James Bryan said there are three alternatives: One is a variance; one is a new or
28 amended conditional use permit; and the third would be an appeal to any staff decision. He
29 does not know the details of all of these. He said a new or changed SUP is not viable, because
30 the Board cannot eliminate requirements in the ordinance. He said an appeal is basically the
31 back and forth that has been heard tonight, and the details would have to go through a
32 a quasi-judicial hearing with the board of adjustment. He said a variance is very much akin to
33 the SUP process, but it is fact dependent and the likelihood is not good.
34 Michael Harvey said a conditional use is not applicable here, since this district allows
35 Class 2 kennel operations and guidelines and restrictions have been established. He said the
36 UDO has language mandating that those guidelines and restrictions be observed in the
37 conditional use permitting process.
38
39 Commissioner Dorosin said he appreciates the attorney's advice that this is a legislative
40 decision and not a quasi-judicial one. He thought he read in the packet that the general setback
41 is 25 feet, so if this change were made, it would change the kennel setbacks to match the
42 setbacks of all the other permitted uses in the EDE-2.
43
44 Michael Harvey said this is correct.
45
46 Commissioner Dorosin said he would make a motion to adopt this change.
47
48 Chair Jacob said it is still early in the process.
49
50 Commissioner Price clarified that in order for the kennel to apply for a variance, it would
51 first have to come into compliance
30
1
2 Michael Harvey said his interpretation is that the kennel has an existing special use
3 permit that is governing the operation of their site. He said his problem is that the owners
4 cannot meet the criteria to then justify the issuance of the variance.
5
6 Commissioner Price said it is for the panel to decide if this is a hardship or not. She is
7 just clarifying that the kennel would have to come into compliance first.
8
9 Michael Harvey said the owners can apply for a variance, but it is his opinion that it
10 cannot be issued if it is to comply with local ordinance and state law.
11
12 Commissioner Gordon asked if it would be an option to have another hearing and make
13 this a non-conforming use, and eliminate kennels from EDE-2.
14
15 Michael Harvey said if the use is eliminated, then you have an illegally established use.
16 He said under the confines of the non-conforming ordinance, the logic is that it could continue
17 operation; however it is already in violation of the permit it was issued in 1986.
18
19 Commissioner Gordon said the question is whether the Board wants to make a universal
20 change for a specific circumstance. She said the consideration of whether it is universally
21 acceptable to have a 150 foot setback for a kennel. She said this is a legitimate question.
22
23 Commissioner Pelissier referred to her original question about the EDE-2 total acres,
24 and she asked if information can be provided on how much of the EDE-2 is already developed
25 and how much is not.
26
27 She wants to make sure that the public understands that letters sent, even before the
28 public hearing, become part of the public record.
29
30 Michael Harvey said this is correct on both counts.
31
32 Tony Blake, representative for Bingham Township, said he agrees with Commissioner
33 Dorosin. He said the intent of this ordinance is to protect people from noise and annoyance
34 from a kennel, and this is the additional setback. He questioned, in the case of EDE-2, who
35 cares. He said there should be an ability to tweak this kind of stuff, or the County ends up
36 putting people through unnecessary hardship or putting them out of business.
37
38 Commissioner Gordon clarified that this is a public hearing, and no decision will be made
39 tonight.
40
41 Mike Schmidt said he would use his three minutes to tell a story. He said he was having
42 a tough day at work. He said he drops his dog off early in the morning and usually picks up late
43 at night, but he took off early and picked up his dog early. He drove up the driveway and saw
44 his dog chasing bubbles that someone was blowing. He said he asked about this and he was
45 told that the kennel had researched how to create dog sensitive bubbles to give the dogs
46 different play and interaction. He said he was told long ago that you can judge someone by
47 their actions when they don't know they are being observed. He said these people really care
48 about these animals, and he wants to tell about the great benefit he receives, along with the
49 hundreds of others that signed the petition.
50
31
1 Jane Bozart said she sent an email, and if this is in the record she does not need to
2 repeat it.
3
4 Ken McNish said he has been bringing his dog to Sunny Acres for three years, and he
5 feels that the key feature that makes it different is the open space for the dogs to run. He said
6 there are a lot of complicated things being discussed tonight; but this is simple, and the proposal
7 makes sense.
8
9 Susan Heske said her dogs have been at Sunny Acres for two years, and aside from the
10 benefit of the dogs being able to run and socialize, it is also a very professional business. She
11 is amazed at the staff and the commitment. She said it is located in an area that can use some
12 business. She is not aware of any neighbors waging any complaints. She said she is more
13 concerned with the process and why this situation has not been adjudicated in 8 years. She said
14 a fair amount of money was invested in improving an existing fence. She said this is about
15 process, and her concern is why this has remained dormant for so long. She said this is a low
16 impact business, and there is nothing harmful to the environment. She said the kennel provides
17 jobs to people and is a benefit to hundreds of dogs.
18
19 Peter Eckhoff said he has been a customer of Sunny Acres for 4 and a half years. He
20 said his son came down with cancer, and his dog was boarded for 2 months at Sunny Acres.
21 He said the dog was high energy, and he was able to go out in the runs. He said when the dog
22 came home and was then taken back to the kennel; he dragged the owner to the front door. He
23 has had other dogs at other kennels, and it wasn't the same experience. He wonders what the
24 basis is for the ordinance, and he noted the proximity of the highway and the noise created by
25 that.
26
27 Michael Brough said he would like to address a couple of issues. He said if the choice
28 of a variance was available, that would have been pursued. He said the consensus was that
29 the variance opportunity is not a real possibility. He said the conditional use permit is out as an
30 option, and so is an appeal. He said the only realistic way to cure this is the legislative solution
31 before the Board. He addressed Commissioner Gordon's question about a universal change.
32 He said he is very sensitive to this, and he represents a number of local governments. He is
33 very sensitive to an ordinance change being broader than the needs of the particular applicant;
34 however he is frequently called upon to craft legislative solutions to deal with particular
35 situations like this one.
36
37 He said the reality is that the applicant has drafted a very narrow amendment, and it only
38 affects 200 acres, and quite likely it will only affect this property owner. He said this is not a
39 question of amending an ordinance of universal applicability or not. He said the realistic choice
40 is whether you are going to keep an ordinance on a theoretical basis that is going to have the
41 practical effect of driving this business out of business. He said there have never been any
42 complaints about noise or smell, which indicates there will not be a problem to make the
43 legislative choice before the Board.
44
45 Michael Brough said the owners have confirmed to him that they did not know about this
46 150 foot setback requirement until the past couple of months. He said that is their
47 representation to the Board. He urged the Board to adopt this ordinance.
48
49 Commissioner Gordon asked, given the item that came before this, where the property is
50 located, and whether it has to be re-zoned EDE-2 in order to qualify.
51
32
1 Michael Harvey said the rezoning for the previous item is necessary because it is
2 improper to have split zoned property. He said re-zoning does provide an abundance of
3 additional area where dog runs can be placed in compliance with the 150 foot setbacks.
4
5 Commissioner McKee said for him it boils down to aligning the setbacks with the zoning.
6 He said the EDE-2 zoning is high intensity, so you don't expect the same kind of setbacks and
7 development as would happen in a residential or EDE-1. He sees no problem with moving the
8 setback to 25 feet.
9
10 Commissioner Gordon questioned, given the statement that there is room for
11 compliance if the re-zoning is granted, why that cannot be done.
12
13 Michael Brough said this was anticipated, and this was examined. He said looking at the
14 maps, it looks as if there is sufficient space; but it is very difficult as a practical matter. He said
15 the three houses would have to be moved or trees cut down, and there is a creek through the
16 center of the remaining property, as well as some substantial elevation changes. He said the
17 application of the setback makes it a very narrow area, and there is also a required setback
18 from the cell tower on the property. He said, given these things, it becomes very difficult and
19 expensive, and it is of no benefit to anyone to do it.
20
21 Commissioner Gordon said it could be done, but it is expensive.
22
23 Michael Brough said he cannot say that it can be done, as he cannot survey it out.
24
25 Chair Jacobs said he assumes the Easterlings would know which was more onerous,
26 hiring a lawyer or moving the fence, and they chose to hire a lawyer. He said, based on what
27 Michael Brough is saying, it seems it is highly problematic to move the fence. He said he has
28 used Sunny Acres for years. He said this comes down the Board being forced to make a choice
29 between an abstract and a specific. He said sometimes the answer is to be inflexible in the
30 name of a greater good, and sometimes the answer is to recognize the situation in front of you
31 and choose that over the abstract.
32 He said a decision cannot be based on the property being recombined until a vote is
33 actually taken to recombine it, so this is also abstract. He would rather have dealt with this in
34 another way, but there is no other option.
35
36 Maxine Mitchell said she would want to see a layout of the area and some pictures at the
37 next discussion.
38
39 Tony Blake said one more point would be to find out if the adjacent owners have been
40 notified to find out if this is a problem for them.
41
42 Michael Harvey said the adjoining property owners were made aware of the text
43 amendment. He said no complaints have been received.
44
45 Judy Foster said she owns the property next door to the kennel, and she has no
46 objection to the 25 foot setback. She said she would agree to this, and she is right next to their
47 parking lot.
48
49 Commissioner Gordon said she is not unsympathetic to this; she is just trying to find out
50 what the options are. She said the question is a general question about universal standards
33
1 versus specific standards. She said she loves dogs, and this is a wonderful operation that has
2 not conformed with the regulations, so it is a difficult question.
3
4 A motion was made by Commissioner Dorosin, seconded by Commissioner Pelissier to:
5
6 1. Accept the applicant's proposed amendments to the UDO as detailed in this abstract and
7 attachments.
8 2. Refer the matter to the Planning Board with a request that a recommendation be returned to
9 the BOCC in time for the April 15, 2014 BOCC regular meeting.
10 3. Adjourn the public hearing until April 15, 2014 in order to receive and accept the
11 Planning Board's recommendation and any submitted written comments.
12
13 VOTE: UNANIMOUS
34
Attachment 7
1
2 Excerpt of Approved Minutes
3
4
5
6
7 MINUTES
8 ORANGE COUNTY PLANNING BOARD
9 MARCH 5,2014
10 REGULAR MEETING
11
12 APPROVED APRIL 2,2014
13
14
15 MEMBERS PRESENT: Lisa Stuckey, Chapel Hill Township Representative; Herman Staats, At-Large, Cedar Grove
16 Township; Paul Guthrie,At-Large Chapel Hill Township; Buddy Hartley, Little River Township Representative; Tony
17 Blake, Bingham Township Representative; Johnny Randall, At-Large Chapel Hill Township; Andrea Rohrbacher, At-
18 Large Chapel Hill Township;James Lea, Cedar Grove Township Representative
19
20
21 MEMBERS ABSENT: Peter Hallenbeck (Chair), Cheeks Township Representative; Maxecine Mitchell, At-Large
22 Bingham Township;Vacant-Eno Township Representative;Vacant-Hillsborough Township Representative;
23
24
25 STAFF PRESENT: Craig Benedict, Planning Director; Michael Harvey, Current Planning Supervisor; Perdita Holtz,
26 Special Projects Coordinator; Tina Love,Administrative Assistant II
27
28
29 OTHERS PRESENT: Beth Trahos, Mike Brough, Donna Easterlin, Don Easterlin, Brent Niemann, Louis Lannoue, Rich
30 Kirkland, Gabe Cantor
31
32
33 HANDOUTS: Email from Alice Gordon to Peter Eckhoff,• Email from Louis lannone to Michael Harvey;Memorandum
34 from Michael Brough to Orange County Planning Board
35
36 AGENDA ITEM 9: UNIFIED DEVELOPMENT ORDINANCE(UDO)TEXT AMENDMENT:
37 To make a recommendation to the BOCC on an application seeking to amend Section 5.6.5
38 (A) (2) (b) Kennels (Class II)—Standards of Evaluation to reduce required setbacks for Class
39 II Kennels developed within the EDE-2 zoning district. This item was heard at the February
40 24,2014 quarterly public hearing.
41 Presenter: Michael Harvey,Current Planning Supervisor
42
43 Michael Harvey: Reviewed abstract. What I will state and ask the Board to remember is our recommendation is still
44 unfavorable and if this Board is going to make a recommendation to approve the request, we have provided
45 language in Attachment 3 of this document that incorporates the Easterlin's request to amend the UDO in a manner
46 consistent with the UDO framework. If this Board is going to make an affirmative finding and recommendation, we
47 would ask you do it on the language contained in Attachment 3.
48
49 Buddy Hartley: Inside the black area,that area is used for the purpose of training dogs?
50
51 Michael Brough: A portion of that area is being used for the training of dogs.
52
53 Buddy Hartley: The building in the red box that is used for training purposes?
54
1
35
55 Michael Brough: Yes. It was constructed as a residence but it is not being used as that.
56
57 Michael Harvey: The staff was asked to provide a visual representation of the property that would meet the
58 appropriate setbacks as currently required. The Easterlins'are proposing this. We wanted to provide the Board with
59 what would comply and what exists.
60
61 Michael Brough: What we are making in the memorandum is that while that is an area that complies with the legal
62 requirements assuming the rest of the property was rezoned, there is a substantial portion of that property which
63 does not lend itself to the expansion of the exercise area. (Described map). There is an area they could build an
64 exercise area but that misses the point. From our perspective under the narrow circumstances this addresses, this
65 would be a very expensive proposition. What good does that achieve? It is multiple thousands of dollars. The point
66 of our request is it is a legislative matter when you weigh cost and benefits and the cost of this private business,
67 which serves a great purpose for the County and surrounding areas, is very high and the benefit is virtual non-
68 existent in this case. There have not been any complaints by either of the surrounding property owners and they
69 were notified of this amendment. It gets down to this question;those objections are essentially theoretical in context.
70 These properties will not be developed until sewer gets there. When it does get developed, it is hard to imagine this
71 area being developed in any way not a substantially intensive use. You have situation where you have a problem we
72 are trying to solve. We have come up with a solution that works and is narrowly drawn and has no real negative
73 impacts on any but provides a legal and practical solution that we have been trying to solve for years. There is a
74 legitimate distinction between why we are limiting this to EDE-2 when it makes no sense to have 150-foot setback if
75 the adjoining property is not intensively zoned for development or residential development. Those circumstances
76 maybe 150 feet is all right but when you have a situation like this, it makes no sense to have 150-foot setback.
77
78 Michael Harvey: This property here is split zoned, this portion is EDE-1 so the 150 foot setback would apply, this
79 portion is zoned EDE-2.
80
81 Michael Brough: Years down the road if this property were developed, anybody who moved there would already
82 know what is there.
83
84 Paul Guthrie: Where is the current exercise yard?
85
86 Michael Brough: In the blue lines.
87
88 Paul Guthrie: Is this considered necessary, that space now being used as an exercise yard is clearly smaller than
89 the total area of proposed change so is it the configuration of the terrain of that limits its use or are there other
90 reasons.
91
92 Michael Brough: There are buildings there and topographic issues in the lower part of the site that slopes. There is
93 an area that is flat and open. Whether that is one third or one half of that site that could be developed but while you
94 could have some exercise area it is very expensive and you are giving up acres of your site in the northwest corner.
95 There are two elements the costs of pulling down the fence and putting up a new fence and the other element is that
96 the 150 foot setback requires them to give up a substantial amount of property it amounts to acres of lands.
97
98 Paul Guthrie: Is this an enlargement or maintaining the same level of animals that are cared for? Will you be
99 increasing or maintaining the same level of animal care?
100
101 Michael Brough: The long term plan would be that the property would be consolidated and then divided to segregate
102 out a lot around the existing tower and the rest would be submitted for a special use permit covering all the remaining
103 property and the particular uses at that time would be to have an expansion into the area that would be permissible.
104
105 Paul Guthrie: I understand the cost argument but is it necessary to tear down the old fence or will you recycle the old
106 fence?
107
108 Michael Brough: I can't tell you.
2
36
109
110 Mrs. Easterlin: The cost I gave you was to use the existing fence.
111
112 Michael Brough: We have a cost estimate here that comes to$55,000.
113
114 Craig Benedict: I will make some general comments as you deliberate on a legislative decision to change the
115 aspects of a zoning district EDE-2. If it is a general problem, you can address things generally. As a companion to
116 that if it a specific issue, try to address the problem specifically or isolated. Another moral (standard) is each zoning
117 districts has uses that are permitted by right. That is what the Planning Board and BOCC have determined that those
118 are the most appropriate uses that permitted by right. Those are the ones that are anchors of a zoning district.
119 Special uses do not have the same standing in a zoning district as a use permitted by right. Before you change
120 regulations, is there a way to change how things are operated or change location of buildings. Also, if you make a
121 change in this zoning district, could it ever be used to justify changes in another zoning district? The last thing is that
122 we do not base regulation changes based on what the land is on now;we based it on what the land is zoned or what
123 the future land use is.
124
125 Lisa Stuckey: Under this proposed text amendment, would the fence still need to be at least 25 feet from the
126 property line?
127
128 Michael Harvey: If this is approved,yes.
129
130 Lisa Stuckey: So the fence has to be moved.
131
132 Michael Harvey: The fence has to be moved or the Easterlins'will have to purchase additional property to make it
133 comply with the 25-foot setback.
134
135 Lisa Stuckey:The wording doesn't permit it to be close on the property line but always 25 feet.
136
137 Michael Harvey: When it is adjacent to property zoned EDE-2 the setback will be 25 feet.
138
139 Herman Staats: The blue line is the current fence;the black line is the setback in compliance.
140
141 Michael Harvey: The special use permit approved recognizing these structures as being part of the dog kennel
142 operation approved in 1986. It is the dog runs that create the problem.
143
144 Herman Staats: The setback refers to outside use or any use.
145
146 Michael Harvey: The ordinance states that the 150-foot applies to all buildings and outdoors exercise areas. There
147 was obviously a different interpretation in 1986. The rule does allow for the 150-foot setback to be waived if portions
148 where animals are housed are completely enclosed in the building. The interpretation that we have utilized since 1
149 began work with the County in 2005 says that if all portions of the facility are in a building, no outdoor area at all,then
150 the 150 rule does not apply.
151
152 Tony Blake: So technically he is not in compliance.
153
154 Michael Harvey: I am not going to say this is non-conforming because I have a special use permit and approval that
155 says otherwise.
156
157 Buddy Hartley: The only place the animals are housed is in the original spot?
158
159 Michael Brough: The blue box with white areas is like portable carports.
160
161 Buddy Hartley: I am familiar with the area. You have more area for dog runs in the black box.
162
3
37
163 Michael Brough: There is area there but the problem is that it will cost thousands of dollars to do it, As you have
164 already pointed out,you have got buildings well within the 150-foot setback.
165
166 Buddy Hartley: If those are covered areas,they could be moved to the areas in black.
167
168 Michael Brough: The fence is an issue and then we have the issue of why are we taking away 125 feet out of the
169 ability to use their property when the adjoining property owners do not object.
170
171 Johnny Randall: The area of the existing fence that is on the property line,will that have to be moved anyway?
172
173 Michael Harvey: The Easterlins' will have to move the fence 25 feet or purchase additional property so the fence
174 complies with the setback.
175
176 Buddy Hartley: Either way it will be expensive.
177
178 Tony Blake: Have the Economic Development folks weighed in on this.
179
180 Michael Harvey: No.
181
182 Tony Blake: There should be a way to tweak things that are special cases without affecting every EDD(2) parcel in
183 the County. It seems this is not unreasonable in this instance. I don't see the benefit in enforcing this or putting this
184 type of burden on a small business.
185
186 Craig Benedict: In my comments, this is not about looking at one property. I am not specifically talking about this
187 use that is here but the long-term guidelines. We are not looking at someone's site plan when we are addressing
188 changing a zoning district that we should not even looking at. I am representing EDD(2)zoning everywhere.
189
190 Paul Guthrie: If the owners were to abandon the use and leave it there and not use it for anything,would you have to
191 tear the fence down?
192
193 Michael Harvey: If the area wasn't used as an exercise yard,then there would be no 150-foot setback.
194
195 Paul Guthrie: There would be no need to tear down that fence and move it?
196
197 Michael Harvey:That assumes that it is no longer utilized for the purpose that the Easterlins'want to use it.
198
199 Paul Guthrie: If they only had to erect a fenced area inside the black box that was sufficient to give the exercise they
200 want to give,would that change the financial impact?
201
202 Michael Brough: Even if you left the fence there you would have to re-fence another area. You are saying acres of
203 property and leaving it unusable. It would be cheaper to leave the fence there and not use that part of the property at
204 all and erect a new fence somewhere else on the property.
205
206 Mrs. Easterlin: The blue line around the outside, there are also several fenced in yards inside the area so we have
207 about nine yards.
208
209 Tony Blake: The way the amendments read there would need to be someone out there with them.
210
211 Michael Harvey: I have never seen a situation where the dogs were out there overnight.
212
213 Lisa Stuckey: We can't make them put them in.
214
4
38
215 Michael Harvey: Technically the LIDO doesn't require it but animal services will mandate the animals have to be kept
216 inside in the evening. This ordinance does require an applicant get the appropriate Class 2 permit from Animal
217 Services in order to operate the kennel.
218
219 Lisa Stuckey: There is not another zoning that would be more appropriate that would have smaller setback.
220
221 Michael Harvey: The setback is related to the kennel. We looked at conditional use but we have language in the
222 LIDO that states once we have adopted a development standard i.e.a setback),it has to be observed.
223
224 Johnny Randall: Is the six-foot high chain link fence required?
225
226 Michael Harvey: Yes. If they want to suggest alternative fencing,we could discuss it. This is a dual review process.
227 Orange County Planning and the Board of Adjustment are reviewing it.
228
229 Tony Blake: What other General Use Zoning District designations could this possibly effect.
230
231 Michael Harvey: None. There could be an extensive reinvestigation of the viability of 150-foot setback in other non-
232 residential zoning districts. This only impacts all the property-zoned EDE-2.
233
234 James Lea: Wouldn't it also impact all Class 2 kennels?
235
236 Michael Harvey: They would have to come back to the Board of Adjustment and amend their existing approved site
237 plan to take advantage of the reduction if it were approved.
238
239 Michael Brough: Regarding that last questions, kennels are permissible in a number of different district but this was
240 limited to the EDE-2 district and further limited to properties that are zoned EDE-2 district. Let me address the
241 general as opposed to the specific. I concur with what Craig has said but in this situation it does that, is there any
242 why you have property that is zoned to a district that allows a 25 foot setback for some of these intensive uses, how
243 does it make sense this use requires a 150 foot setback. What is the point of a 150-foot setback? The main part of
244 our argument is that it doesn't make sense to have a 150-foot setback for a kennel use when it is in an EDE-2 district
245 adjoining property that is zoned for intensive use. This is a policy that is of general applicability to the circumstances
246 we have made it apply to. Does this ordinance make sense in the context in which it applies? We would submit it
247 does not. The ordinance is designed to serve public interest and there is not a public interest in this.
248
249 Lisa Stuckey: The 150-foot setback would apply to all Class 2 kennels in the County?
250
251 Michael Harvey: Yes.
252
253 Craig Benedict: What are some of the adverse impacts that come forward for special use permits. The four general
254 categories are noise,dust, vibration and odor. When things are enclosed in a building, most of the impacts go away.
255 These are what you need a wider type of buffer for, It has been determined that 25 feet because of the noise factor
256 was not a distance that would protect those adverse impacts from imparting upon adjacent property.
257
258 Perdita Holtz: May I add one thing to provide clarification. Even if you are a manufacturing facility and theoretically
259 can locate 25 feet away, there are other standards in the UDO that you have to comply with if you do make dust or
260 noise or vibration so you may be able to go to the minimum setback if you are a pretty benign manufacturing
261 operation but you may be required to locate further away so those impacts of noise, vibration, dust, or odor do not
262 cross the property line. There are standards in the LIDO that other uses have to comply with that may require that
263 they move further away from the property lines than the minimum setback requires.
264
265 Michael Brough: That gets down to the final question. There have not been any complaints since 2005. You are
266 dealing with a theoretical concern. These folks have a real problem that you can solve.
267
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268 Andrea Rohrbacher: Even though Mr. Brough has stated there have been no complaints on this property, I know of
269 another property in Orange County, in the Town of Carrboro, where there is a compliant because there is less than
270 150 foot distance.
271
272 Johnny Randall: Just because there are no complaints,we don't know why.
273
274 Lisa Stuckey: We have two options in terms of proposed changes. Doesn't anyone want to move on Attachment 2
275 or if we are going to consider this would it be Attachment 3? 1 would like to get Attachment 2 off the table if this is not
276 a viable option. We are taking Attachment 2 off the table. Attachment 2 was what Mr. Brough had written.
277 Attachment 3 language is what Michael Harvey wrote. Is there anyone who would like to make a motion?
278
279 Craig Benedict: Attachment 3 is to approve the change.
280
281 James Lea: This would apply to all Class 2 kennels?
282
283 Michael Harvey: This only impacts kennels potentially in the EDE-2. When you have an EDE-2 and you want to put
284 a kennel on it, it if surrounded by EDE-2 zoning, the setback is 25 feet.
285
286 Paul Guthrie: Is the recommendation of the staff that we vote no on that?
287
288 Michael Harvey: Our recommendation is to deny the request. If you are going to approve it, use the language in
289 Attachment 3.
290
291 MOTION by Andrea Rohrbacher not to adopt the change. Seconded by Johnny Randall.
292 VOTE: 6 Yes 2 No(Paul Guthrie,Tony Blake),
293
294 Mr. Easterlin: We serviced 100,000 dogs in the last seven years. Someone has to take care of those dogs and we
295 have to have room to do it. We are not going to have dogs we cannot let out. I want you to understand we have
296 really done a job, My wife goes to work at 7:00 a.m. I just can't understand why when we take care of these
297 animals.
298
299 Lisa Stuckey: It is clear we were all struggling with this. We make a recommendation and the final decision is made
300 by the BOCC.
301
302 Craig Benedict: If you are voting on something, it shouldn't be about one person's property. That is why we have
303 such odd feelings. I tried to separate what is on the ground to what the general rules of decision-making are by
304 legislative bodies so it doesn't reduce itself.
305
306 Paul Guthrie: I appreciate your comments but t.qe legislative procedure is both. It is matters of policy and impact and
307 the decision made in committees and every place I have been involved, both apply. When we come to a decision to
308 vote for or against a recommendation,it is a balancing act.
309
310 Tony Blake: We lack the tools to make the right decision. It was all or nothing. In this case, I think their argument is
311 on but the problem is we can't make specific exceptions. We need the ability to do that.
312
313 Michael Harvey: With all due respect, that is not this Board's role and function. That is the function of the Board of
314 Adjustment.
315
316 Tony Blake: They were denied that avenue.
317
318 Michael Harvey: They were not denied anything: even their own attorney admitted it was not viable.
319
320 Lisa Stuckey: Maybe it should be. Maybe under these circumstances these people should have the opportunity to
321 continue their business but no one after them. If the business is sold, etc. I can see a situation where that area was
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322 filling in and developing and someone wanting to put in a restaurant there and then those dogs would be a problem.
323 What do you do?
324
325 Tony Blake: We do allow a use to exist that has existed prior to the zoning change and it seems that it existed prior.
326
327 Michael Harvey:The previous users had a special use permit.
328
329 AGENDA ITEM: ADJOURNMENT
330
331 MOTION: made by Paul Guthrie to adjourn. Seconded by Tony Blake.
332 VOTE:UNANIMOUS
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