HomeMy WebLinkAboutMinutes 02-24-2014 APPROVED 4/15/2014
MINUTES
ORANGE COUNTY BOARD OF COMMISSIONERS
QUARTERLY PUBLIC HEARING
February 24, 2014
7:00 P.M.
The Orange County Board of Commissioners met with the Orange County Planning
Board for a Quarterly Public Hearing on February 24, 2014 at 7:00 p.m. at the DSS Officers,
Hillsborough, N.C.
COUNTY COMMISSIONERS PRESENT: Chair Barry Jacobs and Commissioners Mark
Dorosin, Alice M. Gordon, Earl McKee Bernadette Pelissier, Renee Price and Penny Rich
COUNTY COMMISSIONERS ABSENT:
COUNTY ATTORNEY PRESENT: James Bryan (Staff Attorney)
COUNTY STAFF PRESENT: Interim County Manager Michael Talbert and Deputy Clerk to the
Board David Hunt (All other staff members will be identified appropriately below)
PLANNING BOARD MEMBERS PRESENT: Planning Board members Maxecine Mitchell,
Johnny Randall, Paul Guthrie, Herman Staats, Tony Blake, and H.T. "Buddy" Hartley
PLANNING BOARD MEMBERS ABSENT: Chair Pete Hallenbeck, Lisa Stuckey, Andrea
Rohrbacher and James Lea
Chair Jacobs called the meeting to order at 7:03 pm. He reviewed the following items at
the members' places:
- Booklet/Blue Sheets/Cream Sheets/PowerPoint— Item C-1 — Class A Special Use
Permit
- Letter— Item C-3 - Unified Development Ordinance (U DO) Text Amendment
A. OPENING REMARKS FROM THE CHAIRS
B. PUBLIC CHARGE
The Chair dispensed with the reading of the public charge.
C. PUBLIC HEARING ITEMS
Planning Board Member Buddy Hartley introduced this item.
1. Class A Special Use Permit - To review 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.
Buddy Hartley: An item involving a special use permit is a quasi-judicial setting, so
approval or denial of such permits are based on sworn testimony and evidence from individuals
who are speaking before the Board. So, we will ask that all individuals that wish to speak on
this be sworn to before the clerk.
Those who were speaking to this item were then sworn in.
Michael Harvey: Good evening. I am Michael Harvey of the Orange County Planning
Department. I have been duly sworn, and my job here this evening is to present to you a Class
A special use permit application proposing the development of a solar facility south of Redman
Road.
What I would first of all like to do this evening is reiterate to the Board what you have
before you. The applicant, in this case Strata Solar, has provided you a copy of affidavits that
they will be reviewing and entering into evidence this evening, outlining their presentation. As
also has been explained, you have three colored pieces before you. The first, a green item, is
an email correspondence submitted by the Chair, Chair Jacobs. This email specifically
documents the Efland Home for Girls, provides some background information on this particular
parcel property. There is a blue piece of paper. This is email correspondence between County
planning staff and Strata Solar to an adjacent property owner. Last but certainly not least is a
cream yellow piece of paper that's been issued by another adjacent property owner, specifically
Redman Rhino, LLC, offering their support for the project.
The first thing I would like to do before I begin with the presentation is ask that Board
recognize that the abstract, which we have before you this evening, which includes: Attachment
1, an application packet; Attachment 2, a property vicinity map; Attachment 3, staff comments
concerning this project; and Attachment 4, the notification materials and certification for the
mailing, be entered into the record.
Commissioner Dorosin arrived at 7:08 pm.
Chair Jacobs: So do you need a motion to that effect?
Michael Harvey: I just need an acknowledgement.
Chair Jacobs: We acknowledge that it has been entered into the record. Thank you.
Michael Harvey: Thank you very much. Without further ado, I know we have a long meeting
ahead of us. I'll be as quick as I can.
Michael Harvey reviewed the following PowerPoint slides:
FEBRUARY 24, 2014
AGENDA ITEM: C-1
QUARTERLY PUBLIC HEARING
CLASS A SPECIAL USE PERMIT
DEVELOPMENT OF A
SOLAR ARRAY - PUBLIC UTILITY
PROPERTY INFORMATION
• PIN(s): 9844-06-5971 and 9844-17-2687.
• Size: 52 acres.
• Zoning: Rural Residential (R-1), Upper Eno Protected Watershed Protection overlay,
and Major Transportation Corridor (MTC) Overlay District.
• Future Land Use Map Designation: Commercial Industrial Transition Activity Node
(CITAN).
• Growth Management System Designation: Urban.
SURROUNDING USES: Map
REQUEST:
• Erect individual solar array panels on both properties (52 acres).
• Typical array is between 7 and 8 feet in height, with approximately 2 to 3 feet of ground
clearance, and approximately 63 feet in length.
• Arrays will be screened by existing vegetation and an 8 foot high chain link security
fence, topped with 3 strand barbed wire, shall enclose the perimeter of the array to
prevent access.
REQUEST(Continued):
• Gravel paths/drives will be installed around these arrays in order to permit access by
Strata Solar technicians to service the panels. In certain areas there will be natural,
grass, paths depending on soil.
• Vehicular access to the site is restricted by a 24 foot access gate off of Redman Road.
• An overhead, medium voltage, power line will be installed along the western portion of
the property allowing the proposed facility to tie into the power grid via an adjacent Duke
Energy substation.
SITE PLAN: Map
REQUIRED REVIEW:
Project involves the review of a Class A Special Use Permit in accordance with the
provisions of Section 2.7 of the UDO.
• Held in a quasi-judicial format meaning all parties, for and against the application,
provide sworn testimony as well as competent material and substantial evidence on the
merits of the proposal.
• Applicant has burden of demonstrating project complies with the provisions of the UDO.
REQUIRED REVIEW (continued):
• Anyone opposing the application is required to demonstrate through sworn testimony
and competent material and substantial evidence that the project does not comply with
the provisions of the Ordinance.
• Hearsay or unsubstantiated opinions are not sufficient testimony.
• If applicant proves compliance with applicable standards, and there is no evidence in the
record the project does not comply, the permit must be issued.
REVIEW PROCESS:
• Step One: Review of application at a joint Quarterly Public Hearing by BOCC and
Planning Board. BOCC adjourns the public hearing to a date/time certain to receive the
Planning Board recommendation.
• Step Two: Review of application by Planning Board who will make a recommendation
on the application based on the evidence and testimony offered into evidence during the
public hearing.
• Step Three: BOCC reconvenes public hearing to receive Planning Board
recommendation. No additional public comment/testimony is accepted. BOCC takes
action on the proposal.
STAFF INITIAL REVIEW:
• Applicant has submitted all documentation required for the review of a the solar array
(Section 5.9.6)
• Applicant has submitted required documentation for a Class A Special Use Permit (i.e.
required by Section 2.7.3)
• There are policies within the Comprehensive Plan lending credence to the viability of the
proposal
RECOMMENDATION:
1. Receive the application,
2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comments.
3. Refer the matter to the Planning Board with a request that a recommendation be
returned to the County Board of Commissioners in time for the May 8, 2014 BOCC
regular meeting.
4. Adjourn the public hearing until May 8, 2014 in order to receive and accept the Planning
Board's recommendation and any submitted written comments.
RECOMMENDATION:
1. Receive the application,
2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comments.
3. Continue the Public Hearing until March 18, 2014 to allow the applicant and staff to meet
with local property owners and respond, in writing, to their concerns.
Michael Harvey: This project, and this refers to attachment 2 of your packet, involves two
parcels of property owned by Stout Farm, LLC, totaling 52 acres in area. The parcels of
property are zoned Rural Residential, Upper Eno Protected Watershed Protection Overlay, and
are located in the MTC overlay—the major transportation corridor overlay district, which is along
the interstate. The area in question is located within the Commercial Industrial Transition
Activity Node and is designated an Urban area on our Growth Management System designation
map. And you have a copy of the PowerPoint presentation before you in the packet you have.
In fact you have copies of all PowerPoint presentations that are going to be reviewed this
evening, including the one from Strata Solar in that packet.
This is an expanded view of that last map we just showed you, showing surrounding uses.
Again, here are the two parcels of property. This is Redman Crossing Road here. To the north
of the railroad tracks, you have residential land uses located in the Ten Year Transition area per
our Comprehensive Plan Land Use Map. You have property to the east, large tracts,
undeveloped property located in a commercial industrial transition activity node. You have a
residential property, the Efland Home for Girls, here. It is also located in the commercial
industrial transition activity node. You have an existing Duke Energy substation here; the
NCDOT weigh station here; an existing commercial operation in the economic development
transition activity node; and several undeveloped large parcels of property, also in the economic
development transition activity node.
As I previously indicated, the applicant is erecting individual solar panels on both parcels of
property, which Strata Solar is going to be leasing. A typical array is anywhere between 7 and
8 feet in height, depending on the slope and angle of the actual array, with approximately 2 to 3
ground clearance, and they are going to be approximately 63 feet in length. This is also
summarized in our abstract. Arrays are going to be screened by existing vegetation and which
will be augmented with additional vegetation as necessary and required by County regulations,
also enclosed by an eight foot high chain link security fence, topped with barbed wire that will
enclose the perimeter of the property. There will be gravel paths throughout the site in order to
permit access to the individual arrays by Strata Solar technicians to service the panels. As
stipulated not only in application, but on the site plan, in certain areas there are going to be
natural grass paths, depending on the soils. Vehicular access to the site is restricted by a 24
foot wide access gate off of Redman Road. There will be - this site will have an overhead
power line connecting to Duke Energy and to the adjacent power—excuse me —the adjacent
existing substation, which I identified for you just a few moments ago.
And this is the site plan. What I would like to bring to the Board's attention is as follows: You
have approximately 11 to 12 acres of open and landscaped space on the property. The area in
this general vicinity has several streams that will be protected by a 60 foot—65 foot stream
buffer. That includes these wetland delineated areas, here and here. This shows the MTC
transportation corridor buffer that's required to be 100 feet. There is the required mandated 50
foot type D land use buffer along this property line. According to the applicant, they are going to
maintain either existing foliage or plant new foliage to our existing buffer standard. The height
of the trees is actually anticipated to get anywhere from 15 to 20 feet in height before it has to
become managed or topped, and that's to insure that they are not going to have shadow
created on the actual individual solar panels; but you are looking at a 15 to 20 foot high buffer.
This set of panels along this area of the property here is actually set back 150 feet from the
identified residence, again the Efland —the former Efland Home for Girls, which is currently
being lived in. Here is the access point off of Redman. You will also note on the site plan,
planning staff has required the applicant to reserve/identify a potential future road right of way.
As this Board will recall, we have an access management strategy in the Efland area to insure
perpetual ingress/egress access to several parcels of property, both to the west and the east,
that are landlocked. They have shown the required access area that would be running through
this property, consistent with that plan. Once again, here is the utility substation, which is where
the power—where the facility is going to be tied in to. And this of course here is the existing
Rhino manufacturing plant.
As the planning board Representative Hartley has indicated, this is reviewed under the Class A
special use permit process, as identified within section 2-7 of our Unified Development
Ordinance. It is held in a quasi-judicial format, meaning that all parties both for and against the
application will provide sworn testimony as well competent material evidence on the merits of
the proposal. The applicant ultimately bears the burden of demonstrating the projecting
complies with the provisions of the UDO. Anyone opposing the application is required to
demonstrate through sworn testimony and competent material and substantial evidence that the
project does not comply with the UDO. And I will remind you, as we have identified in our
abstract, hearsay and unsubstantiated opinions are not sufficient testimony. Last, but certainly
not least, if the applicant proves compliance of applicable standards and there is no evidence in
the record that the project does not comply, there is a requirement that we issue the permit.
At this juncture, what I would like to do is call the Board's attention to page 6 of our abstract, just
so I can run down staff comments, which are contained in Attachment 3 of your abstract. First
being that we have heard from the Sheriff's department that has indicated they have no
concerns over this project, and I will go back to the site plan. EMS staff has actually indicated
that the Efland Fire Department— not Eno— I apologize for the typo -will serve this site and they
will provide emergency services as well. Both Deputy Chief Hallenbeck and Orange County
Emergency Services have indicated they have no concerns over the development of the
proposed site. As we have identified in this abstract, and as with other solar projects, there is
no septic or well systems proposed for the property; so there will be no requirement for
environmental health review or permitting. We have met with representatives of the Department
of Environment Agriculture Parks and Recreation, who have provided you a memorandum
specifically on the Efland School for Girls — indicating in this memorandum, which you will find in
Attachment 3, that given the substantial buffer that is being proposed and the setback of the
array from the facility, they do not anticipate any negative impact on that historic structure.
Orange County Solid Waste has indicated the request, if approved, will not impact their ability to
provide services.
We have submitted this to the State Clearing House, as we are obligated to do by our ordinance
for environmental review. We have gotten no negative comments back from the State
concerning this project. It goes without saying that, if approved, this project will have to go
through all local permitting, including: storm water, erosion control, zoning, building and what
not. There will be issues identified and addressed at those permitting stages to address various
independent issues. One concern that has been brought to our attention, and I would like to
address to the Board now and have Strata Solar expand on this answer if they feel necessary.
One concern expressed that this will create additional runoff problems in this portion of the
property and even here for the manufacturing use. What I would like to remind the Board is, per
our ordinance and consistent with State law, Strata Solar is obligated to basically insure and
maintain existing runoff that is predevelopment, post development; meaning once all the trees
are removed; the solar panels are erected, all the storm water generated from the site has to be
maintained and kept on the site consistent with how the property existed before it was touched.
The property, based on the contour data on your site plan, actually slopes in this general
direction. So, as development occurs, existing storm water patterns will be maintained, and
Strata Solar has informed staff you should not see any negative impacts on adjacent property.
Having said that, I will just remind the Board one last time, once they go through the storm water
process they are going to have to guarantee to the satisfaction of County staff and according to
our local regulations: 1. There will be no off site impacts; and 2. They are going to be
maintaining the storm water flow as currently exists on the property.
With that, Mr. Chairman and members of the Board, what I would like to do is turn this over to
Strata Solar and let them present their application. I will get into staff's recommendation at the
appropriate time, and if you have any initial questions for me, I will be more than happy to
answer them.
Buddy Hartley: Any questions or comments from the Board? Any questions or comments from
the planning board?
Commissioner Price: On the storm water runoff, how much land disturbance will there be?
Michael Harvey: I'm going to let Strata Solar answer that question, but what I will tell you quite
candidly is that there will be sufficient disturbance on this site to require a storm water permit.
Buddy Hartley: Would the applicant want to make the presentation to the Board?
Dave Neill: Thank you Chairmen, members of the Commission, members of the Planning
Board. My name is Dave Neill. I am an attorney with the law firm of Smith, Moore,
Leatherwood, 434 Fayetteville Street, Suite 2800, Raleigh, NC, and I have the pleasure of
appearing before you today on behalf of Strata Solar and the Stout Family Farm, under which
we have negotiated a long term ground lease for the—for the site that's been referenced by Mr.
Harvey.
This evening, we lawyers don't get to put on —we don't get to provide the evidence, but we do
get to play ringleader or ringmaster and provide those who can provide that evidence that you
need to render your decision. Let me give you a preview of the four witnesses that we would
bring for your information this evening. First, Louis Iannone, and I'll ask— sneaking up behind
me — Louis, immediately at my six o'clock— Project Director and site acquisition for Strata Solar,
who will speak about Strata Solar, its background, and its overall plans for this site, to the extent
that information has not been already provided by staff. Behind him in second will be Brent
Niemann, Public Engineer, with a focus in civil engineering, who is also employed by Strata and
is the project engineer on this project. He will speak to a number of the detailed engineering
questions, including the storm water runoff potential and grading issues that may be of interest
to the Board members and the planning board. Also, another engineer, Gabe Cantor, who is
the director of engineering at Strata Solar— his background is in mechanical and manufacturing
engineering. He has worked with Strata and has designed the electrical systems for Strata over
the years, and he will be available to speak to questions that may arise regarding matters
related to electrical engineering in particular for a facility such as this. And finally, as I know you
will all be excited to hear, a fourth witness, Mr. Rich Kirkland of Kirkland appraisals, and MAI
appraiser, licensed here in North Carolina, who will provide information on his findings, that are
at your place, relating to his market study and appraisal relating to the lack of offsite impacts
from a low impact development of this nature.
Rather than belabor this any further, we would just like to ask, to the extent it has not already
been done, that the application by Strata Solar be entered into the record as our evidence that
we will provide foundation for; and also that staff report, to the extent it has not already been, we
would endorse it and have it entered into the record, as it does provide a cogent summary of the
materials that you will hear later this evening. And with that, I will turn it over to Lois Iannone,
Site Acquisition and Project Director for the Stout Farm Project.
Louis Iannone: Thank you Board members and Planning Board members. Mr. Neill covered
quite a bit of my introduction. That's a list of the professionals that will speak. I am Louis
Iannone. I am a real estate developer and I work in site acquisition and entitlement for Strata
Solar. I've been a developer for 25 years.
Louis Iannone presented the following PowerPoint slides:
Strata Solar Development
Stout Farm
Solar Electric Power Plant
Orange County, NC
Public Hearing Presentation
Strata Representatives
• Louis Iannone, Site Acquisition & Entitlement
• Brent Neimann, PE, Civil Engineering
• Gabe Cantor, PE, Electrical Engineering
• Rich Kirkland, MAI, Real Estate Appraiser
• Dave Neill, Land Use Attorney
• Schedule of Presentation
• Strata Solar
• Solar Electric Power Plants
• Similar Visual Impacts
• Appraisal Analysis
• Engineers' Affidavits
• SUP Conditions
Strata Solar
• NC is 5th ranked state in solar energy generation
• Strata is largest solar developer in NC and the sixth largest solar contractor in the nation
• Operate 50 5-MW farms
• Will construct approx. 50 farms this year
Job Creation
• 80 professional staff: engineers, project managers, attorneys, accountants, technicians
• 500 — 1,200 construction staff
• Average 1,000 NC jobs throughout the year
Fuquay Solar Farm (photo)
5MW Solar Farm
• 30-50 acres total, 25 ac panel footprint
• 25,000 3'x5' Solar Panels, fixed on aluminum racks, up to 10' high excluding utility poles
• Use existing land contours; very minimal grading, 100 SF around each inverter pad
• 1% impervious surface
White Cross Solar Farm (photo)
• Panels— Polycrystalline Silicon Photovoltaic Cell Panels; flat-blue color
• Sun passes through glass, hits high-grade silicon and releases electrons in DC current
• DC current is captured in a tributary system, converted to AC current and transferred
Duke Energy local lines
• No fuel used, no waste, no emissions
• NC Utility Commission issues Certificate of Public Necessity and Convenience for Solar
Plant (NC Public Policy to promote renewable energy)
• Power sold to Duke Power under a long-term Power Purchase Agreement (PPA)
• PPA is regulated by NC Utility Commission
• Project is financed through combination of tax credit investors and PPA revenue
• DENR Erosion Control Permit, DOT Driveway Permit and Local Municipal Electrical
Permit
• Project does not impact municipal services, schools, utilities, etc.
• Typical project is surrounded by installed or existing buffers which are subject to
conditions added by the municipality
• Easily removed; Salvage Value > Removal Cost
Stout Solar Farm Area (photo)
Visually Similar Impacts
• Single-Family Development
• Manufacturing Facility
• Warehouse
• Public Works / Public Utilities
• Schools
Appraisal Analysis
• Low Impact Development
• No noise
• No Emissions
• No Odor
• No Hazardous Materials
• No Traffic
Appraisal Analysis
• Much lower in height, traffic, noise, light etc. than most other development
• "Dark at night."
• Passive Use Harmonizes with Adjacent Uses
• Establishes certainty of a long term, low intensity use
Professional Engineers' Affidavits
• Will not endanger public health or safety
• Project will meet all codes
• Project will generate less traffic than one house.
• No utilities are required or used.
Solar Farm Meets SUP Conditions
• Use will maintain or promote the public health, safety and general welfare
• Use will maintain or enhance the value of contiguous property, and the use is a public
necessity
• Location and character of use are in harmony with area and in compliance with
Comprehensive Plan
Brent Nieman, professional engineer, will speak to some civil engineering issues. Gabe Cantor,
PE runs all of our engineering, but he will speak principally to electrical engineering issues.
Rich Kirkland, MAI on some evaluation issues, and Mr. Neill you've heard. The schedule of the
presentation will be that I will tell you a little bit about Strata Solar; describe a solar electric
power plant; describe some similar visual —some uses that we feel like are similar visual
impacts; the appraisal analysis; and the engineers will speak and then just briefly touch on the
S.U.P. conditions.
North Carolina is the 5th ranked state in solar energy generation and Strata is the largest
developer in North Carolina, and we are actually the 6th largest developer in the nation. We
have just completed approximately 50, 5 megawatt farms, and this plant will be a template 5
megawatt project that we do. And our goal is to construct another 50 this year; so we are
operating 50 of these plants at this point. So we do everything from this point— site acquisition,
entitlement. We construct the plants. Of course we design it, get all necessary approvals, and
then we own and operate the plants for 20 years or more.
We create quite a bit of jobs. We have 80 professional staff approximately in Chapel Hill. That
includes engineers, project managers, attorneys, accountants, technicians; and we employ
anywhere from 500 to 1200 construction staff on about a dozen jobs at one - at any given time.
It's about a 3 to 4 month construction cycle, so —and about 100 to 200 people on each job, so
we can have quite a bit of employees at any point in time. We average about 1,000 employees
over the course of a year in North Carolina.
This is a typical 5 megawatt farm. This is in Wake County, in Fuquay. That's a 40 or 50 acre
project with a 25 acre panel footprint- a typical project. A typical 5 megawatt farm is 30 to 50
acres with a 25 acre footprint, approximately 25,000 3 x 5 solar panels fixed on aluminum racks,
up to ten feet high, excluding a handful of utility poles that we will install to connect to the
existing power lines. We basically do not grade. We will clear trees and use existing land
contours, very minimal grading, 4 or 5 ten foot square 100 square foot pads inside the plant that
have an inverter and a transformer. And then we will re-plant the project, and at the end of the
day the project will have approximately 1 percent impervious surface.
This is a project just completed in Orange County. This is the White Cross Solar Farm. This
gives you an idea of—that's just a pretty good perspective of what panels look like and how we
follow the existing contours. I feel like that's been very positively received in the County - The
White Cross Solar Farm. The panels are polycrystalline silicon photovoltaic cell panels. As you
just saw, they are flat blue in color. Sun hits the panels, hits really what is very similar to
computer chip material, and that creates a small amount of DC current. Each one of those
panels is like a giant tributary. It's sort of like water coming down a mountain. The DC current
accumulates in this tributary system. It's converted to AC current in each one of these inverters
and then the transformers convert it to exactly the same power that's in the Duke Energy local
lines. This is a completely passive system. There is not fuel; there is no waste; no emissions;
no noise; no moving parts; no operator. It's a truly passive renewable energy system.
We are required to obtain, from the North Carolina utility commission, a certificate of public
necessity and convenience for each plant. We've obtained probably 70 of these at this point.
And it is the policy— it is the public policy of the state of North Carolina to promote renewable
energy. The power is sold to Duke Power under a long term 20 year power purchase
agreement contract. That contract is also regulated by the utility commission, and the projects
are financed through a combination of tax credit investors and the income from these power
purchase agreements. We will of course obtain all necessary DEANR permits, DOT permits
and a local electrical permit. We don't usually get a building permit, because we don't really do
any construction. The project will not impact municipal services, schools, utilities. A typical
project is surrounded by either the installed buffers Mr. Harvey spoke about, or has existing
buffers, and those buffers are generally subject to conditions that you all could set. At the end
of the 20 or 30 years, if the project is extended, they are easily removed, and the site is put back
to— close to - its original condition, and in general, the salvage value exceeds the removal.
This - I think Mr. Harvey had a better map—shows the location of the project, and it's
surrounded by a variety of uses - I believe within the center—in a long range plan area-
designated area for commercial development. These are some of the uses around the facility
and things that we think create a similar impact- a large scale single family residential
development; a manufacturing facility; warehouse; there is a public works facility adjacent to the
site; a large school facility. Mr. Kirkland will speak in more detail about this, but solar farms are
low impact developments. They create no noise, no emission, no odor, no hazardous materials
and almost no traffic—one trip a month to maintain the site. They are much lower in height,
traffic, noise, light, etc. than most other development. They are literally dark at night. We don't
propose any lighting on this sight. It is a passive use and it generally harmonizes with adjacent
uses and it establishes the certainty of a long term, low intensity use. Our engineers will speak
to the following issues in general. This project will not endanger the public health or safety. The
project will meet all of your codes. The project will generate less than trip per month, and no
utilities are required or used.
In conclusion, these are your general SUP conditions, and we would just like to close by saying
that we feel like we are going to present evidence that we meet all three of these conditions.
The use will maintain or promote the public health, safety and general welfare. The use will
maintain or enhance the value of contiguous property, and the use is a public necessity. And
the location and character of the use is in harmony with the area, and in compliance with your
comprehensive plan. Thank you very much. If you have any questions, I would be glad to
answer them.
Dave Neill: Mr. Iannone, in the Board's package, under tab one is a document titled, Affidavit of
Louis Iannone. Is this your statement?
Louis lannone: Yes
Dave Neill: Is it truthful?
Louis lannone: Yes, sir.
Dave Neill: And does it contain your signature that was given under oath?
Louis lannone: Yes
Dave Neill: We would offer the affidavit of Louis lannone into the record.
Our next witness is Brent Neiman, civil engineer and project engineer for the project.
Brent Neimann: Good evening. My name is Brent Neimann. I am a civil engineer with Strata
Solar. I have been sworn into the record this evening. I prepared the plan that was submitted
with the application. I am very familiar with this type of development. I have been with Strata
Solar for about a year and a half. In that year and a half I have worked on approximately a
hundred solar farm sites of this size or larger in general. This is the standard size project that we
undertake. It is a five megawatt AC facility. This particular site is pretty much covered in
vegetation as it exists today. As Mr. Harvey spoke to, we will prepare the necessary approvals.
We worked closely with Wesley Poole on our White Cross Farm, and we will prepare the
erosion and sedimentation control plans that are consistent with the ordinances. As he spoke
to, there are existing streams and wetlands in the southwest corner of the property. In general,
the property slopes that direction, including from the northeast towards the southwest. As the
other gentleman has spoken to, this is a very low impact development. We don't propose any
grading. The only grading we do will be the installation of the access, which we will obtain a
NCDOT driveway permit for. And there is a minor amount of grading at the inverter areas to
divert surface water away from the facilities- basically just to keep them dry, but that is very
minimal activity. In general this is a very pervious project. We have provided a letter to Mr.
Harvey as well, from the state of North Carolina DEANR, division of water quality, to that effect.
The panels on the racks have approximately one inch gap between each panel, and the racks
themselves have anywhere from four inches to eight inches between those racks. Water hits
the panels, finds those voids between the panels, hits the ground, and you have surface
drainage just like you had before. No change in the surface pattern, so there is no introduction
of additional water. We are not moving water to other areas of the site. It hits the ground as it
did pre-development and continues on that path. You do have a requirement in your ordinance
for a pre and post calculation for the one year 24 hour storm. We will certainly meet those
requirements as well.
A little bit about our construction practices -We utilize logging mats for temporary stabilization of
the site. We don't use gravel. The logging mats are placed on site to prevent rutting, or in wet
areas, or as construction sites go - during rain events it's going to get muddy. So those are in
place to allow access of material, specifically where the staging area is for delivery of material.
The staging areas are not nearly large enough to store material. We strategically plan deliveries
and installation of material so that the material sits for a very minor amount of time—a day or
two — before it is placed into the areas of the site that it will be installed in, and then it is
immediately installed. That staging area is temporary only. There will not be any permanent
storage of any materials on the site. As they stated, there is no noise associated with this. It is
a fixed rack. We drive the post into the ground with a machine similar to what NCDOT uses to
drive guardrail posts. Embedment depths range anywhere from three feet to eight feet,
depending on soil conditions. This site -we can drive the post in approximately 3 to 4 days, so
it's a very quick operation. From there, the racking —the underground begins. We do some
underground trenching toward the inverters. The only overhead we do is when we interconnect
to the utility once we've converted it to AC power and stepped up the voltage. So we have
some underground going and the racking begins, and this is a progressive project; so, as one
operation has started with the racking and it progresses to another area, in that area we can
start to put the modules on the rack. So again, the material is staged and it's put right into use.
The typical construction time from for this is anywhere from three to four months. We do have,
you know, some clearing to do on this particular site; so it may take us a couple weeks longer to
get through those trees. But it's about a four month process on a site like this for us, from the
day that we show up to put the driveway in to the day that we stabilize the site. As they
discussed, we will be grading this at the end, just to smooth everything out; prepare the bed for
seed; and we will seed and straw this. We have typically been using Bermuda grass. That's
what we hope to do. If not, it will be some other native grass that we can get to grow, hopefully.
Mr. Harvey spoke to it. We do have some buffers proposed, and we will evaluate the potential
to use the existing trees wherever possible; and if they don't satisfy the buffer requirements or if
the species is not right, then we will plant the buffer per— I believe it's a type D land use buffer.
So we have discussed this, and we are aware of it. This project generates almost no traffic,
following construction. Everything is monitored remotely. Each inverter area—we can see
down to the combinations of panels together, what's performing and what's not performing; so
the maintenance is basically an as needed. So, it's monitored on the web. We can see when
it's making power, when it's not making power, and we can tell which areas of the sites are a
problem and do a lot of pre-diagnosis before we come out. Quite often, the most frequent trips
for maintenance are actually the vegetation maintenance. So we take full responsibility for that
and have that in house as well. We mow the grass. We trim the bushes—whatever is
necessary for the farm —fertilize. So that's - it generates far less traffic than any single family
home would, because there is no manned activity there on a daily basis. This project doesn't
affect traffic obviously, because of that requirement. There is no noise associated with the
project. There is no dust. There is no odor. There is no light reflection. The panels are
designed to absorb the light, not reflect the light, so there is no glare. I spoke to the storm
drainage. We will comply with the Orange County requirements. I believe that the location and
character of this use is in harmony with the area in which it's located. It's a very low intensity,
low impact development project. We have built many farms in this same type of environment.
So, to summarize, it is my professional opinion, based on my experience as an engineer of
record on many rural solar farm facilities in North Carolina and my familiarity with the proposal
and its design, an establishment, maintenance and operation of the proposed solar farm will not
be detrimental to endanger the public health, safety, morals, comfort or general welfare. It is
also my professional opinion, based on the familiarity with this proposal and my review of the
applicable provisions of the Orange County UDO, that the proposed solar farm facility meets all
of the requirements of the UDO for issuance of the requested special use permit. I'll be happy
to answer questions you may have.
Dave Neill: Mr. Neiman, you know what I'm going to ask you. Are you familiar with this
instrument?
Brent Neimann: Yes, I am.
Dave Neill: Is this instrument titled, Affidavit of Brent Neimann, PE, and is it a fair summary of
your testimony this evening?
Brent Neimann: Yes, it is.
Dave Neill: And did you execute it under oath?
Brent Neimann: Yes, I did.
Dave Neill: We would offer tab 2, Affidavit of Brent Neimann, into evidence. I would also ask,
Mr. Nieman, do these panels move, track, with the sun? How does that work?
Brent Neimann: No, this is a fixed tilt system. Our panels are oriented due south, sometimes a
slight adjustment to the west, depending on the topography; but this site is set up at due south.
It's a fixed tilt. It's tilted at about 25 degrees from horizontal, but there are no moving parts.
Dave Neill: Our next witness is Gabe Cantor, electrical engineer, and Director of Engineering
for Strata Solar.
Gabe Cantor: Hello, my name is Gabe Cantor. I have been sworn in this evening, and I have
been asked to talk about—give an opinion about— if there's any potential health effects from
electromagnetic fields generated from the proposed solar farm. Electromagnetic fields are
generated whenever there is a charge that's moving. So, whenever electricity is used, an
electromagnetic field is generated. They are generated from natural sources, such as the
earth's magnetic field, such as solar flares, or from power distribution lines. Electromagnetic
fields decrease rapidly with distance, so as you double the distance, the field intensity will
increase by the cube of that distance. So, double the distance and the field intensity decreases
by 1/8; triple the distance, it's decreased by 1/27, and so on and so forth. At the perimeter, the
electromagnetic field generated by our equipment is indistinguishable from background
electromagnetic fields. In — I guess in summary, I mean, based on my education, research and
experience in the solar industry, it is my professional opinion that the proposed farm does not
generate any more EMF than the existing electrical lines and will not materially endanger the
public health or safety.
Dave Neill: I have before me the affidavit of Gabriel Cantor, PE. Are you familiar with this
document?
Gabe Cantor: Yes, I am?
Dave Neill: Is it a fair summary of your testimony?
Gabe Cantor: Yes, it is?
Dave Neill: Dave Neill: And on the last page, is this your signature, given under oath?
Gabe Cantor: Yes, it is.
Dave Neill: And we would offer tab 3, affidavit of Gabriel Cantor, PE into evidence this evening.
Our final witness is Rich Kirkland, of Kirkland appraisals. I would direct your attention to tab 4.
In addition to the affidavit that hopefully his testimony will support, you will find behind that, the
Kirkland Appraisal market study that I understand Mr. Kirkland will be referencing frequently; so
you may want to have that out.
Rich Kirkland: Good evening. Again, my name is Rick Kirkland. I am a commercial general
certified appraiser in North Carolina. I've been working the Triangle as an appraiser for 19
years. Focus is commercial, but a big focus of what I do is land. I do a lot of land appraisals,
subdivisions and things of that nature. I was hired by Strata Solar to look at the question of
whether or not there is going to be an impact on the property value of the adjoining properties to
the solar farm. To that end, I have visited a number of solar farms across the state. I have
done research through the appraisal institute's loan library. I have gone out and looked at raw
data. I have gone out and looked at solar farms; looked at -for what we call matched pairs. The
textbook answer for whether or not a property is going to be impacted —the way you look for
that, the appraisal institute teaches, is you look for what's called a paired sale analysis, or a
matched pair. Essentially, you are basically looking for two properties that are identical in every
way, except for one difference, and that is what you are measuring for. In this case we are
measuring for, adjacent to a solar farm. The best example I was able to find was in Goldsboro.
There is a solar farm that Strata Solar built, called the AM Best Solar Farm, and there is a new
subdivision being built adjoining this solar farm. They have lots that back up to the solar farm,
and they have lots that don't. They are all being marketed the same. They are all being sold.
There are a number of sales that have happened; I believe there are five that have happened in
2013, of homes that back up to the solar farm. These are selling for the same houses, for the
same floor plans as the ones that are across the street or down the street away from the solar
farm. I talked to the brokers. They said the solar farm is a non-factor as far as things go. I
walked down the street. I knocked on doors. I talked to the folks who bought these homes that
live next to the solar farm. No one expressed any concern about it. Some of the property
owners were aware that the solar farm was under construction when they bought, and some
were not. Regardless of whether they knew or didn't know, they were paying the same prices.
So, this really is a strong indication that there is really no impact on these adjoining property
values. Homes in this subdivision are selling in the $240,000 to $260,000 price range. And so,
that is the textbook way you look for this. This is— as far as it goes, there is nothing else to
adjust for. These are identical uses. Since then, it's not actually in my report, but I've actually
found a couple of other matched pairs that I would just briefly discuss. Specifically, the White
Cross - the tract of land —the parent tract that that solar farm was built on —They sold off that
piece in 2013, and it sold for a price — I can reference it here— I'll tell you the right amount— It's
selling for$7,500 an acre. Again, I've done a lot of work in that area lately for the local
environmental groups. Looking at the recent sales, there was a sale—very similar size tract of
land —27 acres sold for $7,900 an acre, slightly more - the comp that's not next to the solar
farm, but that one also had mature timber on it, which is the difference that I saw there. So, that
again showed that, for residential agriculture land, no impact adjacent to the solar farm. I've
also identified property that I reference in my report as the Zebulon Solar Farm. It's in Zebulon,
North Carolina. Some of the information there is actually dated. Since I wrote this report last
month, I've identified since then that a tract of 25 lots— a package of 25 lots—that are
referenced in there as "The Meadows of Duke's Lake." Those sold to a builder. A builder
picked up all of those lots— paid $25,000 a lot for those. Again, that's a package deal where
you buy 20 some odd lots. You don't— it's like when you buy a can of coke. If you buy a case,
you're going to pay a lot less per can than you would if you just bought one can. Same thing
with builders when they buy lots; when they buy a big package, they get a discount of 30 to 50
percent off of sort of market value. But I compare those to some other bulk sales that have
happened in that Wendell/Zebulon area in 2013, and there were two other sales of similar
packaged lots that were selling for$15,000 a lot and $12,000 a lot. So, again, this one that was
next to this proposed solar plant actually was selling stronger than other similar developments in
that area. So, all the matched pairs are really showing strong information that there is no impact
from the solar farm adjacency—that it's not really affecting property values in any way. And that
goes in well with how you normally look for what would cause a problem, or a discount, or a
diminishment in value. There is normally something you would point to, such as a use that is
going to cause a lot of noise, or something that's going to bring an odor, or something that's
going to bring an awful lot of traffic to that area. But, the solar farm is not going to have any of
those things. It's silent. I've visited over 25 of these farms so far, and I have never heard
anything outside the fence. I have never smelled anything. I've never experienced anything
that would suggest to me that there was an issue. The one issue that folks come up with and I'll
point out, is appearance, you know, they don't like the way it looks. I've looked and included in
there — I've shown pictures of greenhouses, which is the most similar use I can think of other
than —well it's the most similar other type of development use I have found. I take pictures of
greenhouses all the time now. Again, they are very similar, very compatible use, which makes
sense. A greenhouse really is just trapping solar energy also. And again — proximity to
greenhouses—there has never been anything to suggest that has ever been a problem either.
So, for all those reasons, it is my professional opinion that the proposed solar farm is going to
have no impact on adjoining property values. I also looked at the question of harmonious use,
and I've broken down a list of the adjoining uses on a number of the solar farms I've looked at,
and it shows that most of the adjoining uses where these are going are residential or agricultural
in nature. Most of these are not being located in industrial areas necessarily. There certainly
are some examples where they are in those transition areas, but most of these solar farms are
being located in areas where agricultural and rural uses are transitioning into more residential
suburban areas. That is one of the other reasons I'd conclude that this is a harmonious use,
and so it is my professional opinion that this is a harmonious use for that.
Dave Neill: Mr. Kirkland, I have here under tab 4 in the Board and commission's package, the
affidavit of Richard C. Kirkland, MAI. Are you familiar with that document and its contents?
Rich Kirkland: I am.
Dave Neill: And they are truthful?
Rich Kirkland: Yes
Dave Neill: And that is your signature, given under oath?
Rich Kirkland: It is.
Dave Neill: We would offer tab 4, the affidavit of Mr. Kirkland, as our last exhibit of evidence for
this matter for our case. Unless there are questions from members of the Board, or from the
commission, we would offer to the Board, our application and ask for your support, as I know
the seat still has to go before the planning board and back to the commission later on. We
believe that we've provided competent material and substantial evidence of the requirements
and compliance with the requirements of the special use permit, a class A special use permit,
and we stand ready to answer any additional questions and would also welcome questions or
comments from others who are here this evening who may have competent evidence to offer.
Buddy Hartley: Are there any questions or comments from the Board?
Commissioner Rich: I have a question about the noise, or lack of noise. I met with someone
today that is not—that is going to be a neighbor to another proposed solar farm, not this one,
and they are concerned about the noise. It's just that hum. Their property backs into where the
proposed farm is going to be. So, can you just talk a little bit about— I mean I understood what
he said, that you can only hear it if you are close to it. But, if your property actually backs into
where the proposed farm is going to be, if you are sitting on your deck and reading the
newspaper, are you going to hear that hum?
Gabriel Cantor: We typically locate - the inverter has a fan for cooling purposes. That's the
piece of equipment that converts the DC electricity that's generated by the panels in the fields to
AC, which is the same type of electricity that flows through the wires in your house. That piece
of equipment has a fan for cooling purposes and a transformer associated, so there is a small
hum. Those are typically located in the middle of the field. In this case, the closest one to a
property line is about 300 feet. You would not be able to hear that until you approach within
about 50 feet has been my experience. So, you have to be inside of the property line to hear it.
Commissioner Price: I have a question about the vegetation maintenance. You say you are
going to plant grass. I don't know how you're going to mow it underneath all those panels, but
I'll let you worry about that; but what about other vegetation? I mean, is there going to be
weeding, or you mentioned fertilizer? Will there also be any other pesticides, and how much,
because I am concerned about that runoff?
Brent Niemann: We actually have specialized mowing equipment that can make a pass
underneath the panels. It's actually pretty interesting. It works pretty well. We wouldn't use any
more treatment to the grass than any other residential home would to establish a yard. So, to
the extent necessary to maintain weeds—we would not be applying any pesticides above and
beyond what you would apply to your house to grow grass. We treat it just like a lawn. It will be
just like a lawn.
Commissioner Price: So, would you be able— I mean I'm asking you this now; but for future,
would you be able to provide a list of what chemicals you would be using, and how much. I
mean personally I don't use any on my lawn, so I can't gauge.
Brent Niemann: Ok, so I personally have someone treat my lawn at home.
Commissioner Price: I mean if you can't give an answer now -
Brent Niemann: I don't know the specifics.
Commissioner Price: Well could you provide that for us, or to staff?
Brent Niemann: Sure, yes, we can do that, absolutely.
Commissioner McKee: It was mentioned earlier in the presentation, about the runoff basically,
as I understood it, staying on the property. Will there be—Are you talking about building
sediment basins and control ponds to keep that on the site, or how are you going about that? I
am hearing some concern over that.
Brent Niemann: Sure, as any development project, especially with the amount of clearing and
growing associated with this project— I believe your question earlier— I forgot to address that.
It's about 44 acres, is about the project disturbance acreage. Yes, we will be providing
sedimentation and erosion control features; more than likely a sediment basin or two, depending
on topography and location relative to the project. Post construction, at the White Cross Solar
Farm, because we have such low impervious values, less than one percent, we are able to
install typically, vegetated swales to treat the runoff.
Chair Jacobs: I have a question for Mr. Harvey. It's not dissimilar to Commissioner Rich's
question. How many solar farms do we currently have in Orange County?
Michael Harvey: We have one solar facility, the White Cross Solar farm that was permitted by
this Board with the issuance of a Class A special use permit. We have several private property
owners who have erected solar facilities on their property. Several examples include: Mr. Bob
Nutter, off of Dairyland Road; there is one at the Eco-Institute off of Pickards Mountain Road;
and we have several small properties that have solar facilities, solar panels, either on the
houses or on the residential property. But, as far public utility facilities, this will be our second.
Chair Jacobs: And are you aware of any complaints that have been brought to you by
adjoining property owners regarding those panels or facilities.
Michael Harvey: I can testify I have not received any noise complaints, and there have been no
investigations conducted by the planning department or the Sheriff's department, who would
obviously enforce a noise ordinance.
Johnny Randall: Now, I am all for solar. I have a solar water heater. I hope to have photo-
voltaics on my house, and some of my best friends are in the solar business; but I would like to
make a couple of comments to Strata Solar about this, and I'm sorry if I haven't had the
opportunity or made the opportunity to make these before, as a planning board member. But, in
terms of property value, I don't know if they've considered the fact that this wooded site is
between 1-85 and the residential area, which I'm sure provides a significant sound buffer. And I
don't know how that will affect what will be coming from 1-85 subsequent to the logging of that
site. I know that there is railroad track right behind those residences, so you know they get
intermittent noise, I'm sure; but that's different than a constant sound from 1-85.
The other comment is also for Strata Solar. This is clearly not a significant natural area;
however, looking at aerial photos, it's largely hardwood and maturing trees and I would just like
to say that for future site choices, I would encourage you to choose sites that are perhaps
redevelopment sites, gray fields, brown fields that would be more in line with your sustainability
mission. Because losing 52 acres of trees, which are going to suck up not only pollutants, but a
lot of carbon dioxide and sequester that over the long term, kind of offsets what you —the
philosophy—What I believe your organization, your company, does is to reduce carbon
emissions to the environment, but by taking out 52 acres, there's 52 acres that's not going to be
taking up carbon, sequestering that. But, at the same time I know this can be re-developed or
developed in other ways, apartment complex for instance, which you know - So, I'm just pointing
that off for your future land use. And as far as the runoff goes, let's say there are, you know on
the low side, a hundred trees per acre, and you've got 52 acres, 5,200 trees. A modest size
tree can transpire over 100 gallons of water per day; therefore, 520,000 gallons of water per day
could be leaving that site. So, you might need to calculate that as well, in terms of about how
much water is going to be running off the site. I don't know if you're going to check the amount
of runoff post tree harvest or pre tree harvest, but I think you should do that post tree harvest.
That's all I've got.
Megan Toben: Hi thanks for the opportunity to jump in here. My name is Megan Toben and
I've been sworn in. I'm going to tell you the truth; I actually came to speak in support of the
agricultural zoning, which we're going to talk about later. But, I didn't realize Strata was her
proposing one of these, and I actually was one of the first—our farm was one of the first sites
that Strata put a solar farm on, probably was it like six years ago on Pickards Meadow. It's
been three or four, I don't know, it's been awhile, and it's been wonderful. They come quietly
and take care of whatever needs to be taken care of. We usually don't even notice that they
come. They take care of the grass. The grass is beautiful there. It's better than it is in our
pastures. The solar panels are gorgeous and it's actually a place of pride for us and for our
neighborhood, that, you know, North Carolina was maybe lagging in renewable energy
development before Strata came in, and now, you know if we have the choice between any of
the choices we have for energy, be it hydro fracturing or coal or nuclear, this is by far and away
the one that we want to support, Orange County. So, please give them every courtesy.
Thanks.
Commissioner Gordon: I just wanted to ask a technical question, because Johnny Randall
was sworn, but we didn't enter into the record what his credentials are to make those
statements. I don't know if that's important, but he does have credentials. You might want to
enter those into the record.
Johnny Randall: I am a professional biologist, plant ecologist, and botanist— Master's, PhD in
botany and plant ecology.
A motion was made by Commissioner McKee, seconded by Commissioner Price to:
1. Refer the matter to the Planning Board with a request that a recommendation be returned to
the County Board of Commissioners in time for the May 8, 2014 BOCC meeting.
2. Adjourn the public hearing until May 8, 2014 in order to receive and accept the Planning
Board's recommendation and any submitted written comments.
Commissioner Rich: Commissioner Dorosin brought to my attention that we have two
recommendations on the back of the presentation and only one recommendation in the packet.
Is the recommendation in the packet the one that we're going with?
Chair Jacobs: On the sheet that I'm operating from, there is only one.
Michael Harvey: If I may -We have a recommendation in the packet to take this, essentially to
adjourn your public hearing to May 8 and submit this to the planning board for them to move
forward. As I discussed with Chair Jacobs and Mr. Hartley, given some of the comments we
received from adjacent property owners via email, we suggested if the Board had additional
questions or comments, that there was an alternative that this Board could conceivably engage
in, with respect to adjourning this hearing to a day and time specific if they felt additional
testimony was necessary. Which is why, Commissioner Rich, you are seeing this on your
PowerPoint presentation; but the motion obviously was to go with staff's recommendation as it
is currently contained in the abstract.
Chair Jacobs: So, is it your intention to ask for a substitute motion, or are you satisfied with the
motion?
Commissioner Rich: No, I just think for me it would have been good to have both of these
here, so I would have known what we were doing. It's fine. I'm fine with that motion.
Commissioner Gordon: I have a question about this. If we don't continue the public hearing
until March 18th, then there won't be a chance for applicant and staff to meet with local property
owners. Is that correct?
Michael Harvey: Without speaking for Strata Solar, in your packet, and it has already been
introduced into evidence, Strata Solar has committed to meeting with adjacent property owners
to address or discuss their concerns. Staff has also indicated to Strata Solar that we will be
meeting with them with the property owners. There will be time. Obviously you can accept
written evidence, written updates, as the planning board can. I think, Commissioner Rich,just
to further explain why you have the dual recommendations. We didn't get adjacent property
owner comments until after the, obviously, abstract went out. So, we were trying to, quote,
hedge our bets and give the Board as much leeway, and give the Board as much support in
terms of a motion that would address your needs.
Commissioner Gordon: Well I'll move a substitute motion of the second recommendation.
Chair Jacobs: Well why don't we hear from Commissioner Dorosin first. He's been waiting to
speak.
Commissioner Dorosin: I just want to ask a procedural question. We're having this public
hearing today. We're going to vote to send it to the planning board for their consideration, and
they're going to hold a— receive public comment in their meetings?
Michael Harvey: They can receive written comments per the Unified Development Ordinance
(UDO), which become part of the record and part of their deliberation. Now, if I am an
interested party and wish to comment or talk about what I've written, that's been allowed at the
planning board; but typically it's only written comment.
Commissioner Dorosin: So there is going to be some— It's going to go to the planning board.
They're going to take in everything they heard today. They're going to review it. They're going
to make some comments, maybe, and come back, and we're going to meet again. This is going
to come back, according to the first motion, on May 8th, and then at that time we're going to not
take any additional public comment. It's going to be one of those fake public hearings, where
it's a public hearing, but the public is not allowed to give comment, and then we're going to vote
at that time on the CUP, presumably.
Chair Jacobs: Yes, presumably, right, with whatever additional materials were presented to
the planning board, which presumably could include neighbor's concerns as addressed to Strata
Solar or the planning board.
Commissioner Dorosin: Right. Well, I just—So, I understand that's the way that things have
been done, and that's how it's been set up; but it strikes me as being not the most efficient
process. If we value the planning board's input in this, I would think that input would be relevant
to the actual public hearing where the public gets to comment as well. So, I just wonder if, in
the future, it wouldn't make more sense to have the planning board review the application and
bring forward a recommendation, and then we—and that is part of this public hearing that
people get to comment on. So they get to see what the planning board has said. They get to
see how the applicant has responded to the planning board's suggestions, and then — Now of
course it might take another round after that, but conceivably at this point, we could have a vote,
with all the people here. So, maybe this is something to put onto our procedural review agenda,
but it seems to me that this doesn't seem like the most efficient or expeditious way of doing it.
And I have concerns about that.
Michael Harvey: If I may add, that subject matter is actually coming up later this evening.
Commissioner Dorosin: Excellent. I wish it had come up first, but thank you. I know there is
some discussion about this.
Michael Harvey: And again, without belaboring the point, we have a staff recommendation.
We wanted to provide you with an additional recommendation if you felt it may be necessary to
continue this public hearing to allow any additional public comment. So, we wanted to give you
both concepts of what you would like to do.
Commissioner Rich: I'll be quick. I wasn't criticizing. I actually think it's important to see the
different options that— I mean often we don't see the different options, and I think it's important
to see that. I wasn't criticizing.
Michael Harvey: And I didn't take it that way. I just wanted to make sure you understood why,
all of a sudden, you are seeing it here instead of also in the staff report.
Commissioner Gordon: So staff doesn't have a recommendation.
Michael Harvey: Staff's recommendation is that you send this to the planning board, adjourn
this to May 8th. If you believe additional testimony is necessary, you cannot adjourn the public
hearing until May 8th, because no additional testimony will be accepted. If you believe additional
public comment is necessary then our recommendation then will be that you adjourn this public
hearing until the March 18th regular meeting where you reconvene the public hearing to accept
additional public comment.
Commissioner Gordon: Otherwise, it goes to the planning board and people can write their
comments.
Michael Harvey: Yes, ma'am.
Commissioner Dorosin: So, I just wanted to ask, could we, instead of— Could we do some
combination of this? In other words, couldn't we potentially amend the motion on the floor to
allow for additional public comment when it comes back on May 8th? You just described it as
saying, if we wanted more public comment we should set it for March 8th, and then presumably
at that point we would adopt the proposal that's on the floor. And I'm just wondering if—
Couldn't we do them both at the same?
Michael Harvey: My concern would be that the planning board would then begin deliberations
with comments made this evening. Any additional comments, this would be a reconvening of
the public hearing with just the County Commissioners. So, the planning board would begin
deliberation on this item based on everything they've received here this evening, and I wouldn't
advise the planning board to make a recommendation until after the March 18th if you do
continue this. Because, obviously they're basing their decisions on matters entered this
hearing, but they aren't going to have comments from March 18th until afterwards. So, if you
forward this to the planning board for the March regular meeting, they can discuss the merits of
the application based on the testimony they've received, but they can't make a decision if there
is going to be an extended public hearing; which is why it is just more appropriate, if you're
going to extend the public hearing, to do that, and then submit this to the planning board for
their April regular meeting, where they have all the facts to deliberate on.
Commissioner McKee: I realize and also agree that the process is a bit cumbersome. My
concern is that we not change up the process in the middle of a project, that we move this
forward under the process that we've got; and then that we, either later in this when we talk
about it, or in a later meeting we discuss what process we need to go to, if we need to go to
another one. But, I would prefer to go ahead with the process we've got in place, and move this
project forward.
Commissioner Gordon: I have a procedural question for the attorney or somebody, and that
is, some people just came in who wanted to speak. We haven't actually closed the public
hearing yet. We've got a motion on the floor and a second, but we haven't voted on it. If people
wanted to withdraw those motions and let people speak, could they?
James Bryan: Yes.
Commissioner Gordon: Well that's what I would suggest.
Commissioner Pelissier: Well that was also one of the things that I wanted to say is that we
should accept additional public comment, and I do want to make another comment about the
public hearing. I thought, and I can't remember at the last meeting, that when we make such
motions that we adjourn the public hearing to receive the planning board comments, when it
comes back, it's not really a public hearing; so I wouldn't call it a fake public hearing. And I think
we have to make sure we have the correct title so that we are not misleading anybody in the
public about what we're doing, and this is our public hearing, tonight.
Commissioner Dorosin: So, we are the body that makes the decision on the CUP, right, not
the planning board? So, I don't understand why their deliberations would necessarily have to be
subject to testimony under oath or anything else. And I think if we are going to receive the
planning board's comments as part of the record, then the public hearing is not over. So, either
that becomes part of the record of the public hearing, and so then there's opportunity for more
comment; so again I think it's either, if we're taking more evidence, which is what I think the
planning board recommendation would be considered, then the public hearing is still open; and
if it's still open, then anybody should be allowed to comment; and if it's closed, then there
shouldn't be any evidence added to the record, which is why the planning board's
recommendation should come at the front end.
Chair Jacobs: Let me suggest two things— one is that I think there is sentiment on the board, if
the motion maker and the seconder are comfortable, to table consideration of the motion to
entertain whether there is any additional public comment at this time —secondly, as far as your
point, as Mr. Harvey pointed out, we have a whole discussion of process, and I think some of
your points relate directly to that process and are well taken in regard to calling something a
public hearing when it's not, or else actually having a public hearing, if that's what we're going to
call it. But, I would suggest that, while your points are well made and well taken, that looking at
all the people who are here for other items, and the fact that we are going to discuss this toward
the end of the meeting, that we just at this point table the motion for consideration until we see if
there additional public comments and then have this discussion of process; and we could
always talk about how it may relate to other items. But, at this point, move forward and see if
there are people who had comments about this proposal. If you do, you need to come identify
yourself, and come forward and be sworn. If you sent written comment, then it will be included
in the record anyway, and you don't necessarily have to speak.
Commissioner McKee: Mr. Chairman, I will withdraw or table the motion until we get further
public comment, since we have someone who wishes to speak, if the seconder will agree to
that.
Commissioner Price: Oh, I definitely will agree.
Chair Jacobs: Was there anyone else here who wanted to speak on this item, who would not
need to come forward and be sworn? If not, I'm going to say that we have a motion that was
previously tabled and seconded, to move this item -
Commissioner Gordon: I am withdrawing my substitute motion.
Chair Jacobs: Commissioner Gordon is withdrawing her substitute motion.
- to refer this to the planning board to return a recommendation for our May 8th 2014 meeting.
Now do we any additional comment on this motion?
VOTE: UNANIMOUS
2. Zoning Atlas Amendment - To review 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.
Michael Harvey said this item is not a special use permit, but is a legislative action to
review a re-zoning request. He reviewed the following PowerPoint slides:
BACKGROUND
• PIN — 0803-11-5662.
• Size of Parcel — 12 acres with approximately 8.6 acres zoned EDE-2 and 3.4 zoned
EDE-1.
• Future Land Use Element Map Designation — Economic Development Transition Activity
Node
• Growth Management System Designation -- Urban.
• Existing Conditions -- The property supports a previously permitted Class 2 Kennel and
telecommunications tower.
• Access -- The property has direct access onto US Highway 70.
REQUEST:
• Applicant requests EDE-2 zoning for entire property,
• Believes EDE-2 zoning designation is more appropriate for the property given its
frontage along US Highway 70,
• Represents a logical extension of the district.
• Existing land use (i.e. Class II Kennel) is a conforming land use in EDE-2 zoning district.
EDE-1 VERSUS EDE-2 LAND USES:
• EDE-2 would allow the following additional uses:
— Animal Hospital/Kennels (Class II require SUP)—STAFF NOTE: kennel already
operating on property
— Manufacturing/Assembly uses (i.e. fabricated metal, electronic equipment, food
products, furniture, etc.)
— Retail (i.e. restaurant, retail sales, etc.)
— Services (i.e. hotels, research facility, etc.)
— Wholesale trade
STAFF ASSESSMENT:
• The application is complete,
• The property is of sufficient size,
• Consistent with the Orange County 2030 Comprehensive Plan, Growth Management
System Map, and adopted Eno Economic Development District Area Small Area Plan,
• Logical extension of existing EDE-2 district,
• Would help property owner address issues associated with expansion of existing kennel
operation.
RECOMMENDATION:
1. Receive the proposal to amend the Zoning Atlas.
2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comment on
the proposed amendment.
3. Refer the matter to the Planning Board with a request that a recommendation be
returned to the Board of County Commissioners in time for the April 15, 2014 BOCC
regular meeting.
4. Adjourn the public hearing until April 15, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
Buddy Hartley asked if there were any questions from the boards.
Michael Brough, representing Sunny Acres, said he and the owners of the kennel are
available for questions. He said this will essentially eliminate split zoning of this property. He
said the reasoning behind this request is a possible future expansion of the kennel in future.
He said it is in the interest of the general public to have a single tract of land, under single
ownership, zoned the same way.
Commissioner Dorosin referred to the skinny rectangle in the middle of the map, as well
as the front small piece, and asked if these were separate parcels.
Michael Brough said these were separate and he is not sure whether these have been
combined, but if not, this will happen as part of the next step. He knows there has been an
acquisition of additional acreage since the property was first purchased. He said he has a
survey, and this may be combined or it may not be. He said it is all effectively one tract of land.
A motion was made by Commissioner McKee, seconded by Commissioner Price to:
1. Refer the matter to the Planning Board with a request that a recommendation be
returned to the Board of County Commissioners in time for the April 15, 2014 BOCC
regular meeting.
2. Adjourn the public hearing until April 15, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
VOTE: UNANIMOUS
3. Unified Development Ordinance (UDO) Text Amendment - To review an application
seeking to amend Section 5.6.5 (A) (2) (b) Kennels (Class ll)— Standards of Evaluation
to reduce required setbacks for Class 11 Kennels developed within the EDE-2 zoning
district.
Michael Harvey said there is no formal presentation for this item. He referred to a
display of the text markup. He referred to page 65 of the abstract and the proposed text
amendment on Attachment 1.
He said this is referring to a Class 2 kennel, which involves the keeping, boarding, care,
and training of more than 20 animals. He said the current requirement is a 150 foot setback
from all established property lines. He said the applicant is currently operating under an existing
Class 2 kennel permit, issued in 1986. He said the applicant has dog run areas within the
required setbacks, and the proposed text amendment would drop the required setback to 25
feet. He said this would, in effect, adhere to general zoning setbacks already established for
this district.
Michael Harvey said staff has some concerns, which are identified in the abstract and
the staff memorandum. He reminded the Board of an email in front of them from Mrs.
Easterland.
Michael Brough referenced a handout. He said the purpose of this is to correct an
unfortunate situation where the applicant is in violation of a zoning ordinance as a result of the
150 foot setback situation. He said it did not occur to the owners when the property was
purchased that the replacement of an existing fence would create a zoning problem. He
referred to a handout and a comparison of past and current site plans. He said the 1986 permit
was evidently in violation of the setback requirement, and the new owners were not aware of the
setback requirement. He said the initial notice of the zoning violation occurred back in 2006,
and there is no mention of the 150 foot setback requirement.
He said the amendment reduces the 150 foot setback that applies to kennel 2 uses, only
in the EDE-2 zoning district and where the property adjoins other property that is zoned EDE-2.
He said it does not apply to any other zoning district. He said the 25 foot setback would
continue to apply to this use, although the owners prefer to keep their existing fences where
they are. He said the change in ordinance only applies to the exercise yards, and it doesn't
apply to buildings. He referred to the proposed new language which states this. He said the
change to the 150 foot setback does not apply to buildings, as buildings can already go up to
the 25 feet.
Michael Brough said the most important aspect of the change is that the amendment
only applies in the EDE-2 district and where the property adjoins other EDE-2 properties. He
said this is important because the uses in the EDE-2 district are fairly intensive as compared to
other districts. He said there is low likelihood of any other type of uses in this area, due to the
location and lack of sewer. He said that makes this a very narrow amendment. He said the
benefit to the public of maintaining that 150 foot buffer is marginal, if it exists at all; however the
hardship that it creates for the owners is pretty extreme. He said there are no other practical
areas to place the exercise yards, and these are integral to maintain the business. He said
there are 300-400 signatures from customers and community members in support of this
business. He said there are 20 or more employees, whose livelihood depends on the business.
He noted the members of the audience in attendance to support this amendment.
Commissioner Gordon addressed Michael Harvey and referred to the staff analysis page
73. She asked for clarification on this, specifically items 6 through 9.
Michael Harvey said he would reject some of what Michael Brough said. He said the
setback being referenced was enforced in 1986, and the applicants were made aware of the
problem, as were their attorney and their surveyor. He said the existing language of the UDO,
as was enforced in 1986, indicated that the minimum setback distances would not apply if all
elements of the operation were in an enclosed facility; but the ordinance clearly states that all
buildings and runs must meet the setback requirements.
He referred to Commissioner Gordon's question and said staff's initial observation is that
impacts observed from kennel operation are universal and are not mitigated because the
operation is in a non residential district. He believes the question here is what constitutes an
appropriate setback for a kennel in an effort to address impacts on adjacent properties. Staff is
concerned that the reduction of the setbacks to 25 feet will increase complaints related to the
operation of the kennel and its impact on adjacent property development. He said staff is not
convinced that the 25 foot setback will provide sufficient separation from adverse impacts. He
said staff is also concerned that this proposal is inconsistent with the Comprehensive Land Use
Plan. He said staff understands the situation that the kennel is in, but it is their opinion that the
cons outweigh the pros.
Commissioner Gordon said it sounds like there is a situation of existing use, but the
remedy is to change the whole zoning ordinance.
Michael Harvey said that is the applicant's contention.
Commissioner Gordon asked if there is any other approach, such as a variance under
the Board of Adjustment, for hardship.
Michael Harvey said no, not in his opinion. He said there is an existing special use
permit, and the kennel is in violation of that permit.
Commissioner Price asked why the variance is out of consideration.
Michael Harvey said this facility is operating under a previously issued special use
permit, and the facility is now out of compliance with that permit and with the ordinance. He
said the kennel has to bring the site into compliance with the code in order for the special use
permit to remain valid and the operation to continue. He would also argue that this situation is
self created, and the operation has been expanded. He said, as a result, this would not qualify
for a variance because the hardship is not unique, and it is self induced.
Commissioner Dorosin asked if the Board could amend the terms of the conditions of the
special use permit.
Michael Harvey said the ordinance would have to be amended in order for the conditions
of the special use permit to be modified. He said the 150 foot setback applies.
Commissioner Rich questioned whether an amendment to this ordinance would mean
anyone with a kennel could request this change as well.
Michael Harvey said it would only apply if a kennel was in the EDE-2 zoning district. He
said there are no other kennels in the EDE-2 zoning district.
Commissioner Rich noted that this conversation started in 2006, and she asked what
has happened between 2006 and 2014.
Michael Harvey said there have been a lot of changes in attorneys and surveyors, and
there was no proposal to address the problem until recently.
Commissioner Pelissier asked how many acres in Orange County are zoned EDE-2.
Michael Harvey said, according to Craig Benedict, the amount is approximately 200
acres.
Commissioner McKee said he is hearing two different versions, that the setback amount
it was unknown, and that it was known.
Michael Harvey said he stands by his answer to the Board.
Chair Jacobs said this is that what the Board of Adjustment is for, to allow someone to
articulate their beliefs and then to have County staff articulate what it believes the facts to be.
He said there is then a rendering of an opinion on whether an exceptional situation exists, or is
allowed to exist.
Michael Harvey said staff issued an opinion in 2006, and that opinion was not appealed;
so that opinion is the full force of law. He does not believe the owners have standing to appeal
it now.
James Bryan said he would encourage the Board not to focus on this particular
petitioner. He said the Board has an obligation to consider all of the ramifications of this. He
said the question of how much EDE-2 is in the County, is a very relevant one. He said whether
this petitioner will benefit from it or not, or whether the petitioner has alternatives available to
them, is not a valid basis for an eventual decision.
Chair Jacobs said he feels that one of the things the Board is looking for is an alternative
to making a universal decision to address an individual circumstance. He asked if there is an
alternative avenue other than changing the buffer requirement in the entire district from 150 feet
to 25 feet. He said this would be to address the difference of opinion, interpretation,
understanding or experience.
James Bryan said there are three alternatives: One is a variance; one is a new or
amended conditional use permit; and the third would be an appeal to any staff decision. He
does not know the details of all of these. He said a new or changed SUP is not viable, because
the Board cannot eliminate requirements in the ordinance. He said an appeal is basically the
back and forth that has been heard tonight, and the details would have to go through a
a quasi-judicial hearing with the board of adjustment. He said a variance is very much akin to
the SUP process, but it is fact dependent and the likelihood is not good.
Michael Harvey said a conditional use is not applicable here, since this district allows
Class 2 kennel operations and guidelines and restrictions have been established. He said the
UDO has language mandating that those guidelines and restrictions be observed in the
conditional use permitting process.
Commissioner Dorosin said he appreciates the attorney's advice that this is a legislative
decision and not a quasi-judicial one. He thought he read in the packet that the general setback
is 25 feet, so if this change were made, it would change the kennel setbacks to match the
setbacks of all the other permitted uses in the EDE-2.
Michael Harvey said this is correct.
Commissioner Dorosin said he would make a motion to adopt this change.
Chair Jacob said it is still early in the process.
Commissioner Price clarified that in order for the kennel to apply for a variance, it would
first have to come into compliance
Michael Harvey said his interpretation is that the kennel has an existing special use
permit that is governing the operation of their site. He said his problem is that the owners
cannot meet the criteria to then justify the issuance of the variance.
Commissioner Price said it is for the panel to decide if this is a hardship or not. She is
just clarifying that the kennel would have to come into compliance first.
Michael Harvey said the owners can apply for a variance, but it is his opinion that it
cannot be issued if it is to comply with local ordinance and state law.
Commissioner Gordon asked if it would be an option to have another hearing and make
this a non-conforming use, and eliminate kennels from EDE-2.
Michael Harvey said if the use is eliminated, then you have an illegally established use.
He said under the confines of the non-conforming ordinance, the logic is that it could continue
operation; however it is already in violation of the permit it was issued in 1986.
Commissioner Gordon said the question is whether the Board wants to make a universal
change for a specific circumstance. She said the consideration is whether it is universally
acceptable to have a 150 foot setback for a kennel. She said this is a legitimate question.
Commissioner Pelissier referred to her original question about the EDE-2 total acres,
and she asked if information can be provided on how much of the EDE-2 is already developed
and how much is not.
She wants to make sure that the public understands that letters sent, even before the
public hearing, become part of the public record.
Michael Harvey said this is correct on both counts.
Tony Blake, representative for Bingham Township, said he agrees with Commissioner
Dorosin. He said the intent of this ordinance is to protect people from noise and annoyance
from a kennel, and this is the additional setback. He questioned, in the case of EDE-2, who
cares. He said there should be an ability to tweak this kind of stuff, or the County ends up
putting people through unnecessary hardship or putting them out of business.
Commissioner Gordon clarified that this is a public hearing, and no decision will be made
tonight.
Mike Schmidt said he would use his three minutes to tell a story. He said he was having
a tough day at work. He said he drops his dog off early in the morning and usually picks up late
at night, but he took off early and picked up his dog early. He drove up the driveway and saw
his dog chasing bubbles that someone was blowing. He said he asked about this and he was
told that the kennel had researched how to create dog sensitive bubbles to give the dogs
different play and interaction. He said he was told long ago that you can judge someone by
their actions when they don't know they are being observed. He said these people really care
about these animals, and he wants to tell about the great benefit he receives, along with the
hundreds of others that signed the petition.
Jane Bozart said she sent an email, and if this is in the record she does not need to
repeat it.
Ken McNish said he has been bringing his dog to Sunny Acres for three years, and he
feels that the key feature that makes it different is the open space for the dogs to run. He said
there are a lot of complicated things being discussed tonight; but this is simple, and the proposal
makes sense.
Susan Heske said her dogs have been at Sunny Acres for two years, and aside from the
benefit of the dogs being able to run and socialize, it is also a very professional business. She
is amazed at the staff and the commitment. She said it is located in an area that can use some
business. She is not aware of any neighbors waging any complaints. She said she is more
concerned with the process and why this situation has not been adjudicated in 8 years. She said
a fair amount of money was invested in improving an existing fence. She said this is about
process, and her concern is why this has remained dormant for so long. She said this is a low
impact business, and there is nothing harmful to the environment. She said the kennel provides
jobs to people and is a benefit to hundreds of dogs.
Peter Eckhoff said he has been a customer of Sunny Acres for 4 and a half years. He
said his son came down with cancer, and his dog was boarded for 2 months at Sunny Acres.
He said the dog was high energy, and he was able to go out in the runs. He said when the dog
came home and was then taken back to the kennel; he dragged the owner to the front door. He
has had other dogs at other kennels, and it wasn't the same experience. He wonders what the
basis is for the ordinance, and he noted the proximity of the highway and the noise created by
that.
Michael Brough said he would like to address a couple of issues. He said if the choice
of a variance was available, that would have been pursued. He said the consensus was that
the variance opportunity is not a real possibility. He said the conditional use permit is out as an
option, and so is an appeal. He said the only realistic way to cure this is the legislative solution
before the Board. He addressed Commissioner Gordon's question about a universal change.
He said he is very sensitive to this, and he represents a number of local governments. He is
very sensitive to an ordinance change being broader than the needs of the particular applicant;
however he is frequently called upon to craft legislative solutions to deal with particular
situations like this one.
He said the reality is that the applicant has drafted a very narrow amendment, and it only
affects 200 acres, and quite likely it will only affect this property owner. He said this is not a
question of amending an ordinance of universal applicability or not. He said the realistic choice
is whether you are going to keep an ordinance on a theoretical basis that is going to have the
practical effect of driving this business out of business. He said there have never been any
complaints about noise or smell, which indicates there will not be a problem to make the
legislative choice before the Board.
Michael Brough said the owners have confirmed to him that they did not know about this
150 foot setback requirement until the past couple of months. He said that is their
representation to the Board. He urged the Board to adopt this ordinance.
Commissioner Gordon asked, given the item that came before this, where the property is
located, and whether it has to be re-zoned EDE-2 in order to qualify.
Michael Harvey said the rezoning for the previous item is necessary because it is
improper to have split zoned property. He said re-zoning does provide an abundance of
additional area where dog runs can be placed in compliance with the 150 foot setbacks.
Commissioner McKee said for him it boils down to aligning the setbacks with the zoning.
He said the EDE-2 zoning is high intensity, so you don't expect the same kind of setbacks and
development as would happen in a residential or EDE-1. He sees no problem with moving the
setback to 25 feet.
Commissioner Gordon questioned, given the statement that there is room for
compliance if the re-zoning is granted, why that cannot be done.
Michael Brough said this was anticipated, and this was examined. He said looking at the
maps, it looks as if there is sufficient space; but it is very difficult as a practical matter. He said
the three houses would have to be moved or trees cut down, and there is a creek through the
center of the remaining property, as well as some substantial elevation changes. He said the
application of the setback makes it a very narrow area, and there is also a required setback
from the cell tower on the property. He said, given these things, it becomes very difficult and
expensive, and it is of no benefit to anyone to do it.
Commissioner Gordon said it could be done, but it is expensive.
Michael Brough said he cannot say that it can be done, as he cannot survey it out.
Chair Jacobs said he assumes the Easterlings would know which was more onerous,
hiring a lawyer or moving the fence, and they chose to hire a lawyer. He said, based on what
Michael Brough is saying, it seems it is highly problematic to move the fence. He said he has
used Sunny Acres for years. He said this comes down to the Board being forced to make a
choice between an abstract and a specific. He said sometimes the answer is to be inflexible in
the name of a greater good, and sometimes the answer is to recognize the situation in front of
you and choose that over the abstract.
He said a decision cannot be based on the property being recombined until a vote is
actually taken to recombine it, so this is also abstract. He would rather have dealt with this in
another way, but there is no other option.
Maxine Mitchell said she would want to see a layout of the area and some pictures at the
next discussion.
Tony Blake said one more point would be to find out if the adjacent owners have been
notified to find out if this is a problem for them.
Michael Harvey said the adjoining property owners were made aware of the text
amendment. He said no complaints have been received.
Judy Foster said she owns the property next door to the kennel, and she has no
objection to the 25 foot setback. She said she would agree to this, and she is right next to their
parking lot.
Commissioner Gordon said she is not unsympathetic to this; she is just trying to find out
what the options are. She said the question is a general question about universal standards
versus specific standards. She said she loves dogs, and this is a wonderful operation that has
not conformed with the regulations, so it is a difficult question.
A motion was made by Commissioner Dorosin, seconded by Commissioner Pelissier to:
1. Accept the applicant's proposed amendments to the UDO as detailed in this abstract and
attachments.
2. Refer the matter to the Planning Board with a request that a recommendation be returned to
the BOCC in time for the April 15, 2014 BOCC regular meeting.
3. Adjourn the public hearing until April 15, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
VOTE: UNANIMOUS
3. 2030 Comprehensive Plan and Unified Development Ordinance (UDO) Text
Amendments and Zoning Atlas Amendments - To review government-initiated
amendments to the text of the Comprehensive Plan and UDO and to the Zoning Atlas
to establish two new zoning overlay districts in the Efland area.
Perdita Holtz reviewed the following PowerPoint slides:
Comprehensive Plan Text, Unified Development Ordinance Text, and Zoning Atlas
Amendments for Two New Zoning Overlay Districts in the Efland Area
Quarterly Public Hearing
February 24, 2014
Item CA
Background
• Heard at November 2012 quarterly public hearing
• Denied by BOCC in February 2013
• 1 year waiting period required for a new application in cases of denial
• This proposal is the staff-recommended version considered on February 5, 2013
Basic Charge
• Implement recommendations in the adopted Efland- Mebane Small Area Plan to
establish design and site planning standards for this area of the County served by public
(or quasi-public) water and sewer systems.
• Amend plans and regulations as necessary in order to establish two new zoning overlay
districts.
Comprehensive Plan Text Amendment (chart)
What is a zoning overlay district?
• Regulatory tools that create a special zoning district, placed over the existing base
zones, which identifies special provisions in addition to, or in lieu of, those in the
underlying base zone.
• Purpose is to guide development within the specified area.
• Overlay district regulations can be more restrictive or less restrictive than the regulations
that apply to the underlying base zones.
Zoning Atlas Amendment (map)
Future Land Use Map (Map)
Relationship to Existing Efland-Cheeks Overlay District (map)
UDO Text Amendments
• Amendments to several sections necessary to implement the new zoning overlay
districts
• Intent of the new districts:
- Allow for a more urban style of development in the Efland Interstate Overlay District
- Allow for an urban village style of development in the Efland Village Overlay District
Why Necessary?
• Different development regulations necessary in order to reflect the reality of smaller
sized lots (both existing and anticipated) served by water and sewer.
• Encourage high quality growth in an area of the county proposed for additional growth
while protecting existing development and community character.
• Ensure good planning practices related to site design, transportation, and architecture
are achieved.
General Information
• Many of the proposed changes in the amendment packet contain footnotes explaining
the reason/rationale for the proposed change.
• Website contains more information
- Questions and Answers
- Synopsis of Proposed New Regulations and/or Differences from Existing Regulations
- (Orange County, Planning Department, "Current Interest Projects")
Exceptions and Existing Uses
• Single-family detached residences (both existing and new) are not subject to the
requirements of the overlay districts.
• Other existing land uses are not required to come into conformance with the new
regulations so long as the property continues to be used as it is currently being used.
• The requirements of the Major Transportation Corridor (MTC) Overlay District are not
being altered.
Synopsis of Changes
(Applicable to Both Districts)
• Side and rear setback can be less
- Intent is to allow required buffer and minimum setback to be the same
• Smaller (less wide) buffer between lots
- In keeping with those required in the existing Efland Cheeks Overlay District along
Highway 70
• No more than 1 entrance/exit point, unless justified
• Large projects must provide an internal pedestrian circulation system
• Must provide intra-site accessibility
• Requirements for driveways and shared access
- Shared access only applicable if fronting on Mount Willing Road or Highway 70
Synopsis of Changes
(Efland Interstate Overlay District only)
• Site Planning must take into account need for connecting roadways shown on the
adopted Access Management Plan for the area
• Requires that national prototype architectural styles of chain businesses be altered as
necessary to complement the surrounding area
Synopsis of Changes
(Efland Village Overlay District only)
• Changes in front yard setback requirements
- Minimum of 30-feet along Highway 70
- If not along Highway 70: front setback in keeping with adjoining uses
• No fences in front yards unless a demonstrated need can be shown
• No chain link or similar fencing
• No outside storage of materials
• Allows up to 15% of parking to be located in the front yard (setback area)
• Encourages shared parking and puts a cap on parking
• Limits signage to monument style signs that do not exceed 6-feet in height and prohibits
pole signs
• Does not permit modern corporate franchise building design
• Principal building must face fronting street and have a functional doorway
• Requires that buildings be designed to contribute to a "human scale"
• Prohibits drive-throughs and mirrored glass
Public Notification
• Completed in accordance with Section 2.8.7 of the UDO
— Newspaper legal ads for 2 successive weeks
— Mailed notices to affected property owners
— Mailed notices to property owners within 500-feet of affected properties
— Posted 25 signs in strategic areas of the affected area
Recommendation
• Receive the proposal to amend the Comprehensive Plan, Unified Development
Ordinance, and Zoning Atlas.
• Conduct the Public Hearing and accept public, BOCC, and Planning Board comment on
the proposed amendment.
• Refer the matter to the Planning Board with a request that a recommendation be
returned to the Board of County Commissioners in time for the April 15, 2014 BOCC
regular meeting.
• Adjourn the public hearing until April 15, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
Perdita Holtz said there is already a similar overlay district along Highway 70. She
reviewed the comprehensive plan graphic and said the zoning districts need to be consistent
with the comprehensive plan. She said the area where the proposed overlay district is located
is a commercial/industrial transition activity node. She said staff is also suggesting a tick mark
be added in the other three transition land use classifications, so that any future overlay districts
that are contemplated will not require a comprehensive plan amendment.
She reviewed the map of the Zoning Atlas Amendment, as well as the Future Land Use
Map and the map of the overlay district mentioned earlier. She said the proposed text
amendments contain amendments to several areas. She said the current development
regulations primarily address development on large size lots.
Referring to the slide "Synopsis of Changes (Efland Village Overlay District only", she
noted that varied setbacks along an individual street create a more chaotic feel and look. She
said it is good urban design for a village setting to have consistent setbacks.
Chair Jacobs asked for an explanation of how all of this came to be proposed.
Perdita Holtz said this is part of the Efland Mebane small area plan, which was a plan
made up of appointed residents in the area. She said this is a community driven plan, and it is
based on recommended standards for achieving good development.
Commissioner McKee noted that the Efland Mebane small area plan was brought
forward in 2004, and the committee ran for two years. He asked if staff has gone back to the
community since 2006.
Perdita Holtz said committee meetings were held when the zoning overlay districts were
last proposed, and public information meetings were held in 2012. She said these meetings
were not held for these changes, as these are substantially similar to what was proposed in
2012.
Commissioner McKee said, since this was denied by the Board in 2013, it would have
been good to go back to the community to get their response before moving forward with
another proposal.
Perdita Holtz said the amendment outline form for this item specifically stated that there
would not be another public outreach meeting and the reason why. She said this was because
this has already undergone public comment in the past, but she understands the concern.
Commissioner Price asked for an explanation of the rationale behind the fencing.
Perdita Holtz said this does not apply to single family houses, but it has to do with the
aesthetics of having chain link or other fencing in the front yard.
Commissioner Price asked why there is an aversion to chain link fences.
Perdita Holtz said the committee expressed concern about this if there was a lot of
commercial development.
Commissioner Price asked if this would apply to a duplex.
Perdita Holtz said you would not be able to have a chain link fence in the front yard.
Commissioner McKee asked about the drive-throughs. He asked if drive-throughs along
highway 70 on any commercial facility would be banned.
Perdita Holtz said that is correct. She said there was a point in the small area plan that
these would not be permitted in the Efland Village, but it would be permitted in the interstate
district. She said the concern was having a string of fast food restaurants cropping up on
Highway 70.
Commissioner Price said she believes another concern about the drive-throughs was the
concern of car stacking and all of the associated fumes.
Perdita Holtz said that was a concern in the County, but the concern specific to this plan
was about the proliferation of fast food restaurants on Highway 70.
Commissioner Rich said she remembers this as one of the first things that came before
the Board when she came on, and she didn't have a lot of information. She said her concern at
that time was calling things urban when there are no sidewalks being put in. She said she still
has concerns with calling things urban, when there is no way for people to use their feet to get
there, because there are no sidewalks. She is unsure of why the word urban is used in these
settings.
Perdita Holtz said the growth management systems map adopted in 2003 calls areas
rural designated and urban designated, and this is in one of the urban designated areas.
Commissioner Rich questioned whether this is really urban. She said the County is just
creating an area where people are being allowed to build density.
Perdita Holtz said it depends on your definition of urban, but this is creating areas where
people can not only build density, but can put non- residential uses.
Commissioner Rich said you can't walk there; you have to drive your car there.
Perdita Holtz said it is true that you cannot walk there on a sidewalk.
Commissioner Pelissier said the difficulty is that this is just a small area compared to an
urban area like Chapel Hill or Carrboro. She said, even in Chapel Hill, 15-501 by-pass is in an
urban area, but there are no sidewalks. She said it is difficult because of the scope of what is
being looked at.
Commissioner Rich said it might just be her getting stuck on the word urban; but when
these overlays are done, there are all these districts of overlays that are supposed to be urban,
but none of them connect.
Perdita Holtz said the small area plan is supportive of having a sidewalk network, but
right now, counties in North Carolina have trouble providing, funding, and maintaining
sidewalks. She questioned whether you hold this up just because sidewalks can't be provided
right now. She asked if development regulation should be kept in place that sometimes requires
a buffer of 100 feet, when lots are only 100 feet wide; or if the County should implement
something that is good for development now, and the sidewalk issue will continue to be worked
on.
Commissioner Rich said she understands that, and if the County will be forward thinking
and work toward sidewalks, then she is fine with this. She just doesn't want to approve an
urban overlay and then that's the end of it.
Perdita Holtz said this is just one aspect of implementing the small area plan, and there
is still more to do. She said keeping sidewalks and bike lanes in mind is part of the plan, and it
is something she thinks Orange County will do when the time is right.
Commissioner McKee referred to the statement on creating non-conforming uses. He
asked how "operating in the manner in which they are currently operating" will be defined. He
said he is aware of multiple parcels of property where new regulations prevent expansion of
existing business. He is concerned that this is what will happen here.
Perdita Holtz said this would create non-conforming uses if someone wanted to expand
their businesses.
Commissioner Price asked if there would be a time limit for a non-conforming business if
there is a change in ownership and a gap in use.
Michael Harvey said there is a time limit of 6 months within any 180 day given period.
Greg Andrews said he lives in the Efland Community and he owns a business in the
proposed overlay district. He said he is also here in part to represent the Efland Ruritan Club.
He proposed a public hearing in the Efland community. He said there are a lot of elderly folks
who cannot come sit at this meeting for 3 or 4 hours to get to this part. He said he would like to
see the people who sat on this committee and made these recommendations. He referenced
the discussion about sidewalks and said he does not know how safe walkways would be on
highway 70. He asked that this issue remain open. He said the Efland Ruritans would be
happy to hold this event in Efland.
Doug Efland said he owns property in the Efland village area. He said he has a lot of
questions, and he would like this to continue with some sort of public meeting in Efland. He said
there are a lot of things that are alarming or hard to understand in the proposed text. He
referenced shared right of ways and other parts of the text that he did not understand. He
referenced the section on easement agreements between contiguous parcel owners and asked
what incentive it is for an adjacent property owner to enter an agreement with you if there are no
plans to develop their property. He said there are certainly questions. He questioned the
stipulations on connecting roadways to the east and west side of Mount Willing. He asked that
this discussion be continued.
Ben Lloyd said urban to him is Chapel Hill, Charlotte or New York City. He said Efland is
a sleepy little community where most of the residents have been living there all of their lives. He
said this small area study has been going on for 20 years and notice of this public hearing was
given 15 days ago. He has taken a quick look at this plan, and it would take a lawyer to pick all
this stuff out. He said the people in the Efland community need to have the opportunity to have
some input into this plan. He asked for an open Efland community meeting, followed by a public
hearing for general public input.
He said he has a letter from Joseph Forrest and he asked what to do with that. He read
the letter and asked it to be entered into the record.
Bill Efland said he also agrees with having the hearing in Efland. He asked if the
residents are privy to having the names of the people on the Mebane Efland small area plan
committee. He asked if there were any Efland family members on that committee and he said
he feels that they should have been involved in this process.
Commissioner McKee said there were Efland folks on this committee. He said he would
share the list of names after the meeting.
Lindsey Efland said he has had 40 years of Orange County government saving us from
ourselves. He said when all is said and done this language affects approximately ten parcels of
land. He said there are only a few developable properties. He said it has also been noted that
he community has not been part of the planning process of late. He said this is a significant
change for the future of the community and there is not any understandable language as it
relates to the re-development of buildings. He feels work needs to be done on this and local
input should be involved. He respectfully requests that the public hearing be continued while
planning staff works with land owners to help them, and the planning board, understand the full
implications of what is going on.
Mike Efland questioned how many landowners of involved parcels were on the
committee. He wants to know whose brainchild this is.
Brian Efland said there are a lot of Eflands from Efland, and he is not aware of any who
were on the committee. He feels that stake holders should be involved in these decisions. He
noted the large number of community members present, and he said no one who sees this likes
it. He would like to see continued discussion in the community.
Commissioner McKee said this came before the Board a year ago, and he still does not
like it. He feels this should be sent back to staff with instructions to work with the affected
community to address their concerns. He said this is not a countywide zoning overlay; it affects
a very small number of people in a very big way, and these people need to be involved upfront.
He understands there was a public meeting two years ago, but there have been changes made.
He does not think the public hearing needs to be held over, but this should be sent back to staff
instead.
Commissioner Price said she voted against it last time, and her comments are the same.
She questioned whether the public received notice of the meeting last year when this was on
the agenda.
Perdita Holtz said the notice went out for the November 2012 quarterly public hearing,
and the notice contained an update on the information meeting held in November, which was
attended by only ten residents.
Commissioner Price said she would still like to see more discussion with the community.
Commissioner Pelissier said this reflects the comments of the small area plan. She said
that was a big picture, and this is only a small section of the Efland area plan. She is fine with
having community meetings. She said it is important to continue this to avoid waiting another
year. She said things get more difficult the longer this goes on. She suggested continuing the
public hearing with a set date.
Perdita Holtz suggested this be continued to the May Quarterly Public Hearing. She
said a public hearing out in the community has never been done before, and it would require a
quorum of both the Board and the planning board. She said a public meeting can be held with
staff in attendance.
Commissioner Pelissier said she was not trying to imply having a public hearing in the
community, as this will not allow for question and answers with staff, which is what the
community wants. She said this is called a public information session.
Ben Lloyd said people really want a public information session.
Chair Jacobs noted, in fairness to staff, that meetings were held at the Efland Ruritan
and there were repeated attempts to recruit people from Efland. He said there were people
from Efland who served diligently. He said this was the Efland Mebane small area plan. He
said the conversation included plans to get Mebane involved to insure that it would not annex
into Efland. He said if this is not a concern now, it is because Mebane has agreed not to do
this. He said there were signs up, and there were meetings at the Efland Community Center,
the Efland Ruritan Club and Efland Cheeks Elementary school. He feels it is a good idea for the
community to meet with staff to ask questions about this, and then this can come back to the
Board. He said there have been no attempts to exclude anyone.
An unidentified resident asked when the meeting was held at the Ruritan Club. He
asked if the details presented tonight were discussed at that meeting four years ago.
Perdita Holtz said the details were discussed at the open house community meeting held
in November of 2012 from 4 - 6 pm at the Efland Community Center, and 10 people came.
Greg Andrews said if this was turned down last time, he would like to see what changes
have been made since then.
Chair Jacobs said staff does that in the documents, and this is included.
Greg Andrews said it seems that at least two of the Board members recognize that there
is not enough change to make a difference
A motion was made by Commissioner McKee, seconded by Commissioner Price to turn
this proposal down and send it back to staff for further review and community input before
bringing it back.
Commissioner Gordon said this cannot be turned down, as this is not voted on at this
meeting. She asked if Commissioner McKee would like to turn it back to the staff.
Commissioner McKee said it was turned back to staff a year ago.
Commissioner Rich said she is fine with the description of the sidewalks because of the
forward thinking that the sidewalk issue is not being dropped. She said she does not
understand why this wouldn't just continue to be a public hearing to get more information.
Commissioner Price said staff and the Commissioners would be able to have dialogue
with the community. She said it would give more time for community input.
Chair Jacobs said this may just be a difference of semantics. He said the motion is to
defer further Board of Commissioner consideration until staff meets with the members of the
Efland Community to address their concerns, and then this comes back to the Board. He said
this does not say that this won't come back to the Board, but it directs staff to meet with the
community.
Commissioner Dorosin suggested holding an informational meeting with the public at the
Whitted building to allow Commissioners and staff to attend, in an effort to bridge the gap. He
asked if this could be added to the motion.
Commissioner McKee and Commissioner Price agreed to this.
Commissioner Pelissier also suggested an amendment to the motion, stating that this
would come back in May.
Commissioner McKee said he could not accept this, as he is not sure that this allows
adequate time for staff to address community concerns. He said this would set an artificial
deadline.
Commissioner Pelissier said she would like to have a specific time frame.
Commissioner McKee and Commissioner Price agreed to September.
Chair Jacobs reviewed the amended motion to have a public information meeting to give
the Efland community members an opportunity to: meet with staff and Commissioners to
express concerns, and for staff to explain the proposals, to come back for the September Public
Hearing.
Michael Talbert said there are two options: 1.To close the existing public hearing or 2.
Continue this public hearing until the September 2014 Public Hearing.
Commissioner McKee said he will add this to the beginning of his motion.
Commissioner Gordon said she is not sure about having a public information meeting
that requires the Commissioners to have a quorum.
Commissioner Price said this is just a public meeting and the Commissioners can
attend, but quorum is not required.
A motion was made by Commissioner McKee, seconded by Commissioner Price to
close the public hearing; hold a staff coordinated public information session; and to bring this
item back to a meeting in September, 2014. (There was discussion of the possibility of no QPH
in September and the public hearing would possibly be during a regular meeting.)
VOTE: UNANIMOUS
Commissioner Price suggested there be more than one meeting.
5. 2030 Comprehensive Plan and Unified Development Ordinance (UDO) Text
Amendments - To review government-initiated amendments to the text of the UDO to
establish a zoning program commonly referred to as Agricultural Support Enterprises
(ASE) outside of the Rural Buffer land use classification.
Perdita Holtz reviewed the following PowerPoint slides:
Agricultural Support Enterprises Outside of the Rural Buffer Land Use Classification
Quarterly Public Hearing
February 24, 2014
Item C.5
History & Purpose of Amendment
• A work-in-progress since 2001
➢ Need for Conditional Zoning construct was one of the "sticking points"
➢ We now have this type of zoning in the UDO
• Augment allowable uses famers 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.
➢ Balance between rights of property owner and rights of neighboring property
owners
Two Proposed ASE Amendments
• Outside of Rural Buffer land use classification
• Within Rural Buffer land use classification
- Requires amendments to Joint Planning Area documents
• Orange County, Towns of Chapel Hill & Carrboro must approve JPA
amendments
- Will be on longer review/approval timeframe
- The more intensive uses could not be considered in the Rural Buffer, under the
current proposal
Comprehensive Land Use Map
Unified Development Ordinance & Comprehensive Plan Amendments
• Add provisions for ASE into the UDO.
• "Agriculture", as defined in the State statues, remains exempt from zoning
regulations.
• Comprehensive Plan amendment to allow new zoning district in certain land use
categories
ASE Program (Zoning/Land Use)
• Create new conditional zoning district (ASE-CZ)
• Add additional permitted uses to some of the existing general use zoning districts
• Create standards for many of the new uses
• Update some existing development standards
• Add definitions
• Amend Land Use/Zoning Matrix in Comprehensive Plan
Project Review/Approval Process
• Depends on use being proposed and current zoning of property
• Three basic processes:
• Staff review/approval
• Special Use Permit
• Class B is reviewed/approved by Board of Adjustment
• Class A is reviewed/approved by Board of County Commissioners
• Rezoning
• General Use district
• Conditional district
Use Specific Standards
• Help mitigate impacts
• Balance between rights of neighboring/nearby property owners
• Standards address issues such as:
• Location on major roads
• Additional setback requirements
• Noise
• Hours of Operation
• Groundwater usage
• Building size
• Minimum lot size
• In addition to all requirements in the UDO
Permitted Outright vs. SUP or Conditional Zoning
• Less intensive uses added to the Table of Permitted Uses as permitted outright
(example for AR zoning district; other zoning districts are also affected)
• Subject to use-specific and general development standards
• Community Agricultural Processing Facility
• Community Farmers Market
• Cooperative Farm Stand
• Community Meat Processing Facility
• Non-Farm Use of Farm Equipment
• Rural Special Events
• Check "Definitions" to see how these uses are defined
• Staff approval
• More intensive uses must be permitted through either the Special Use Permit process or
rezoned as an ASE-CZ
• Class B Special Use Permit (in AR zoning district):
• Microbrewery with Minor Events
• Taxidermy
• Winery with Minor Events
• Microbrewery, Production Only
• Winery, Production Only
• Veterinary Clinic
• Veterinary Clinic, mobile
• Rural Heritage Museum
• Class A Special Use Permit (in AR zoning district):
• Equestrian Center
• Special Use Permits are "quasi-judicial" proceedings
• Public Hearing
• Decided on a case-by-case basis with public input ("evidence")
Conditional Zoning District (ASE-CZ)
• Conditional zoning districts allow projects to be considered on a case-by-case, site-
specific basis
• Rezoning (legislative process) with public hearing
• Acknowledges that there are places where a specific type of use may be appropriate
whereas it would not be in a different site-specific situation
• BOCC has final decision on whether a proposed use(s) is compatible with
surrounding uses
• Mutually agreed upon conditions can be imposed as part of the approval process
• Allows tailoring of project to a specific site
• Table of Permitted Uses lists the types of uses that can be applied for as an ASE-CZ
Change in groundwater usage standard language
Proposed language in amendment package:
• A comprehensive groundwater study, for facilities expected to use more than 240
gallons of groundwater per day per acre of lot area. Said study shall detail:
(i) The amount of water anticipated to be used on a daily, weekly, monthly, and annual
basis;
(ii) An analysis of the amount of groundwater withdrawal considered to be safe and
sustainable in the immediate vicinity; and
(iii) An analysis of whether other wells in the vicinity of the proposed use will be affected by
withdrawals made by the proposed use.
Change in groundwater usage standard language
Language Proposed as a result of comments
• A comprehensive groundwater study, for facilities expected to use more than
gallons of groundwater on an annual basis per day per aGr° of lot area than an average
single family residence (which uses 240 gallons of water per day) built at the highest
density the existing zoning district would allow. For example, if the existing zoning district
allows a residential density of 1 unit per 2 acres and the proposed use is on a 6 acre lot
(which could yield 3 residences), the proposed use(s) may use three times the water
used by an average single family residence (or 720 gallons per day, on an annualized
basis) before a comprehensive groundwater study is required. The water usage rates of
any existing use subject to zoning regulations located on the same lot shall be taken into
account when determining if a comprehensive groundwater study is required. Said
study shall detail:
(i) The amount of water anticipated to be used on a daily, weekly, monthly, and annual
basis;
(ii) An analysis of the amount of groundwater withdrawal considered to be safe and
sustainable in the immediate vicinity; and
(iii) An analysis of whether other wells in the vicinity of the proposed use WM are expected to
be affected by withdrawals made by the proposed use.
Agricultural Preservation Board and Planning Board Review
• APB has reviewed 3 times
• Consensus to move forward
• Would like farmers to have the ability to apply for as many uses as possible
• (Do not remove more intensive uses from consideration)
• Planning Board Ordinance Review Committee reviewed 2 times
• Same conclusion as APB
• Both Boards had minor comments/questions that have been incorporated into draft
materials
Public Notification
• Completed in accordance with Section 2.8.7 of the UDO
➢ Newspaper legal ads for 2 successive weeks
• Held Public Information Meeting on February 17 (was postponed from advertised date of
February 13)
➢ Flyers posted
➢ Press Release
• Has been a topic on a few agendas in the past year
➢ BOCC (including Assembly of Governments)
➢ Planning Board
➢ Agricultural Preservation Board
• Planning website posting on January 24
County Attorney's Office Comments
Perdita Holtz reviewed the land use map and said this amendment applies to all of the
areas outside of the rural buffer and outside of the municipalities, which includes: Bingham
Township, Cheeks Township, Eno Township, Hillsborough Township, Cedar Grove Township
and Little River Township.
Referring to the slide titled, "Permitted Outright vs. SUP or Conditional Zoning", she said
"permitted outright" means that approvals are done by staff.
Referring to the slide titled "Conditional Zoning District (ASE-CZ)", Perdita Holtz said
projects can be considered on a case by case site specific basis. She said this is still a
legislative process, which includes a public hearing; however it does allow Commissioners to
have more discretion on whether projects are approved or not.
Perdita Holtz said the proposed change in the groundwater usage standard language is
a result of comments made at the public information meeting held last week. She said the new
wording attempts to clarify that groundwater usage is being looked at on an annual basis, and to
account for the fact that some areas of the County do not allow a density of one unit per acre.
She said there is a "for example" included in the language in an attempt to be as clear as
possible. She said the change from "will" to "are expected to" comes from conversations with
the consultants who would be doing the groundwater studies.
She said, in response to input requested by the Board regarding possible removal of the
more intensive uses, the agricultural preservation board felt that there are places in the County
where the more intensive uses might be acceptable, and that the conditional zoning or special
use process would allow for any issues to be addressed.
James Bryan, County Attorney, said he has advised staff, and he would like to advise
the Board that the attorney's office has found that this is legally insufficient, and parts of it would
be unenforceable. He said if the Board adopts it and there is litigation, there is a high likelihood
of an unfavorable outcome.
Chair Jacobs asked how this got all the way to a public hearing before this was
discovered by the attorney's office.
James Bryan said there was agreement to disagree.
Perdita Holtz said there was a meeting back in August regarding his concerns about
some of the definitions of non-farm use of farm equipment. She said staff asked if James
Bryan would provide some legally sufficient language, but the attorney's office did not want to
interject into policy. She said she and Michael Harvey have discussed this and both feel that
proper discretion goes a long way in enforcing what is an obvious business use, versus a farmer
who grades one road a year. She said this is where the County's attorney had concerns. She
said there is some discretion allowed in enforcing this.
Chair Jacobs said it is insufficient to have this come up at a public hearing, and this
needs to be fixed.
Commissioner Gordon asked for the specific areas James Bryan is referring to.
James Bryan said it is not that he does not want to inject policy. He said this is purely a
legal issue and his legal advice is to pull these definitions. He said there are three definitions
related to permitted-by-right, and these are: non-farming use of farm equipment, meat
processing and the farm stand. He said all of these definitions say it has to be on a bona-fide
farm. He said the state statutes about bona fide farms are very lenient. He said there is no line
at all in this, and it is not statutorily correct.
Commissioner Gordon asked about the PowerPoint and the use specific standards on
the bottom of page 4. She asked if, in the ASE-CZ, there are any uses in which all of the
standards are eliminated and it is entirely a case by case basis.
Perdita Holtz said no.
Commissioner Gordon asked if the standard for major roads is ever eliminated.
Perdita Holtz said yes, that is one that has been discussed. She said there are some
uses where you have to be located on a major road, but that standard can be modified if you go
through the re-zoning process for the conditional zoning district.
Commissioner Gordon asked for the reason why R1 does not have agricultural support
enterprises.
Perdita Holtz said, in the permitted use table, there is a footnote under the R1 zoning
that says no uses are being added here. She said the reason for this is because the R1 zoning
district purpose statement says that this is a zoning district for rural residential non-farm uses.
She said staff did not feel that farm uses should be added as permitted uses, as it would be
contrary to this purpose statement. She said, if you are currently zoned rural residential and
operating a farm, there are other avenues for approval, such as re-zoning to AR or applying to
the ASE-CZ zoning district. She said the R1 purpose statement could be modified, but that was
not the purpose of this effort.
Perdita Holtz presented the following final two slides:
Final Note
• Some uses the farming community might be interested in applying for may be
permissible as a "Home Occupation"
• Home Occupation standards are currently in the amendment approval process
• Heard at November 2013 quarterly public hearing
• Planning staff can help people determine which review/approval process would be the
most advantageous to apply for
Recommendation
• Receive the proposal to amend the Comprehensive Plan and Unified Development
Ordinance.
• Conduct the Public Hearing and accept public, BOCC, and Planning Board comment on
the proposed amendment.
• Refer the matter to the Planning Board with a request that a recommendation be
returned to the Board of County Commissioners in time for the April 15, 2014 BOCC
regular meeting.
• Adjourn the public hearing until April 15, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
- - - - - - - - - - - - - -
Perdita Holtz noted an error in attachment 3, on page 206. She said the sawmill use
category should be listed as being allowed in the ASE-CZ zoning district. She said this has
been corrected on the internet materials.
Commissioner McKee said it seems there is a problem between legal and the planning
staff. He asked how to proceed.
Michael Talbert said this is a large item with many moving parts, and the area in conflict
is fairly small. He feels it would be appropriate to proceed with the staff recommendation, and
this can come back on April 15th with revised definitions that meet the requirements of both
departments.
Perdita Holtz said this was scheduled to go to the planning board next week. She
suggested it would be good to have this language turned around in time to put together these
agenda materials. She said if this is not possible, it should be continued to a later date.
Chair Jacobs suggested it be continued to a later date.
Commissioner Price asked if the attorney is comfortable with the rezoning districts on a
case by case basis. She said it seems like it is getting close to spot zoning.
James Bryan said he has reviewed all of this and he only found the three definitions to
be legally insufficient.
Commissioner Pelissier referred to the addition of the provisions for some of the
enterprises that might use more water than an average household. She asked if this would be a
problem if a neighborhood went in with pools and irrigation and did not have the same
requirements for ground water studies.
James Bryan said this might be a policy issue, but he sees no legal issue with it.
Paul Guthrie referred to the process with micro breweries and some of the definitions.
He said this needs to be dealt with.
Tony Blake said he has talked with farmers and all of the concerns were around the
water usage. He said people are not clear on what the language means for them. He said
there is concern about the available use of water for their livelihood through expansion of herds
or crops.
Chair Jacobs said it is important to clarify this.
Commissioner Gordon asked if this would apply to a bona-fide farm.
Perdita Holtz said this would not affect any livestock or crop usage. She wonders if this
is getting at the issue of having a bona-fide farm that raises cattle and then there is also an
agricultural services use that is subject to the groundwater study.
Tony Blake said the issue seems to be a desire for flexibility.
Perdita Holtz said this does not restrict water usage for cows or crops in any way, even if
the farmer also has an agricultural services use.
Marc Marcoplos said he is impressed with the handling of the Efland overlay issues. He
said he has been hearing about the agricultural enterprise concept for years, and he thinks it is
important to help farmers make a better living. He said the water issue is the one that people
will seize on, and perhaps for good reason with the way it is written.
He said he went to the information session, which was re-scheduled due to weather. He
said there are 600 farmers in the County and it is worth looking into that there were none of
them there. He feels there must be a better mechanism to communicate with the farmers.
Megan Toben said she lives off Dairyland Road and has been farming for 12 years. She
said she has sold at multiple farmers markets. She said for 9 of those 12 years, her husband
subsidized the farm with his income. She said most of the farm's financial resources and lands
were lost in 2010 as a result of the financial crisis. She said she and her husband made a shift
with the remaining 38 acres toward agri-tourism and crop diversification. She has been running
a non-profit called Pickards Mountain Eco-Institute, which offers environmental education to
local schools, as well as weekend workshops on various topics. She said the farm is also in the
final stages of opening a farm stand called the Honeysuckle Teahouse, which will open in April.
She said it is hard to make ends meet as a farmer. She said farmers need all the help that the
County can offer, and it is worth it to spend the time working out all of these details. She
recommended that the Board and staff check in with the Carolina Farm Stewards program for
input on the issues farmers face. She said she is here to thank for the Board for what they do
and to ask them to stay with this agricultural support enterprises program until it is the best that
it can be.
Perdita Holtz said she would like to clarify that if you use more water than the average
single house, it does not mean you cannot exist; it means you will have to do a groundwater
study.
Tony Blake said he has a neighbor who had a spring that dried up in the drought. He
was forced to go to groundwater. He said it was not clear to his neighbor that he was not being
restricted.
Commissioner McKee said there were not a lot of commercial farmers at the information
meeting or at tonight's meeting because those are large businesses that fall outside of the
permitting structure. He said this will be beneficial to smaller or beginning farmers who want to
transition their operation. He said these large farms have computers and smart phones and
ability to communicate. He said he is sure there will be concern and pushback over the water
issue in the future.
Commissioner Gordon said she does think the ground water is a key concern. She said
the County does encourage businesses that have low water usage, as part of economic
development. She said the consideration of water usage is a legitimate concern, and the
County has to consider not exceeding the carrying capacity.
She thinks the Board needs time to consider the definitions.
Perdita Holtz said, per the prior discussion the plan is to adjourn until the May meeting.
Chair Jacobs said, after all the time the Board has spent on this, he hopes it does not
get hung up on how many gallons of water are allowed. He said the water issue is important;
but there are a lot of people who can benefit from this, and he feels it is possible to come up
with reasonable standards. He hopes staff will work with the planning board to come up with
something that is sensitive to the concerns of farmers as well as the concerns of people who
worry about our ground water.
A motion was made by Commissioner Rich, seconded by Commissioner McKee to:
1. Refer the matter to the Planning Board with a request that a recommendation be
returned to the Board of County Commissioners in time for the May 20, 2014 BOCC
regular meeting.
2. Adjourn the public hearing until May 20, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
VOTE: UNANIMOUS
6. 2030 Comprehensive Plan and Unified Development Ordinance (UDO) Text
Amendments - To review government-initiated amendments to the text of the UDO to
establish a zoning program commonly referred to as Agricultural Support Enterprises
(ASE) within the Rural Buffer land use classification.
Perdita Holtz reviewed the following PowerPoint slides:
Agricultural Support Enterprises Within the Rural Buffer
Land Use Classification
Quarterly Public Hearing
February 24, 2014
Item C.6
Purpose of Amendment
• Allow appropriate agricultural support enterprises within the Rural Buffer land use
classification
• Will augment allowable uses famers can pursue in order to generate additional
farm-related income while minimizing any adverse impacts on adjoining property
• Intent is to better enable farmers to keep farming which will help preserve
the rural heritage of Orange County, including the geographic area that
comprises the Rural Buffer
• Balance between rights of property owner and rights of neighboring property
owners
Two Proposed ASE Amendments
• Outside of Rural Buffer land use classification
• Within Rural Buffer land use classification
• Requires amendments to Joint Planning Area documents
• Orange County, Towns of Chapel Hill & Carrboro must approve JPA
amendments
• March 27, 2014 joint planning public hearing
• JPA documents must be amended before these proposed
UDO/Comprehensive Plan changes can be adopted by Orange County
• Will be on longer review/approval timeframe
• The more intensive uses could not be considered in the Rural Buffer, under the
current proposal
Unified Development Ordinance & Comprehensive Plan Amendments
• Only a few changes/additions would be necessary to the ASE text applicable outside of
the Rural Buffer to allow ASE uses within the Rural Buffer
• District chart in Article 3
• Additions to RB zoning district in Table of Permitted Uses for General Use
Zoning Districts
• Noting that some uses shall not be approved in the ASE-CZ if located in the
Rural Buffer
• Additions to some of the use-specific standards in Article 5
• Comprehensive Plan amendment to allow new ASE-CZ zoning district in the Rural
Buffer land use category
Project Review/Approval Process
• Depends on use being proposed within the Rural Buffer
• Three basic processes:
• Staff review/approval
• Special Use Permit
• Class B is reviewed/approved by Board of Adjustment
• Class A is reviewed/approved by Board of County Commissioners (none
in RB)
• Rezoning
• General Use district (not applicable in the Rural Buffer)
• Conditional district (including proposed ASE-CZ)
• All projects within the Rural Buffer are sent to JPA partners for review and comment, in
accordance with the JPA Agreement
Permitted Outright vs. SUP or Conditional Zoning
• Less intensive uses added to the Table of Permitted Uses as permitted outright
• Subject to use-specific and general development standards
• Community Agricultural Processing Facility
• Community Farmers Market
• Cooperative Farm Stand
• Community Meat Processing Facility
• Non-Farm Use of Farm Equipment
• Rural Special Events
• Staff approval
• More intensive uses must be permitted through either the Special Use Permit process or
rezoned as an ASE-CZ
• Class B Special Use Permit
• Microbrewery with Minor Events
• Winery with Minor Events
• Microbrewery, Production Only
• Winery, Production Only
• Rural Heritage Museum
• Special Use Permits are "quasi-judicial" proceedings
• Public Hearing
• Decided on a case-by-case basis with public input ("evidence")
Conditional Zoning District (ASE-CZ)
Some of the more intensive uses that can be applied for as an ASE-CZ could not be applied for
in the Rural Buffer
• Composting Operation with grinding
• Regional Meat Processing Facility
• Stockyards/Livestock Markets
• Sawmills
• Both Agricultural Preservation Board and Planning Board Ordinance Review Committee
agree on removing these uses from consideration in the Rural Buffer
Conditional Zoning District (ASE-CZ)
• Conditional zoning districts allow projects to be considered on a case-by-case, site-
specific basis
• Rezoning (legislative process) with public hearing
• Acknowledges that there are places where a specific type of use may be appropriate
whereas it would not be in a different site-specific situation
• BOCC has final decision on whether a proposed use(s) is compatible with
surrounding uses
• Mutually agreed upon conditions can be imposed as part of the approval process
• Allows tailoring of project to a specific site
• Table of Permitted Uses lists the types of uses that can be applied for as an ASE-CZ
JPA Review
November 21, 2013 Assembly of Governments meeting to discuss with elected officials
Amendment Package sent to JPA partners on January 17, 2014
• To date, no comments have been received
Public Notification
• Completed in accordance with Section 2.8.7 of the UDO
➢ Newspaper legal ads for 2 successive weeks
• Held Public Information Meeting on February 17 (was postponed from advertised date of
February 13)
➢ Flyers posted
➢ Press Release
• Has been a topic on a few agendas in the past year
➢ BOCC (including Assembly of Governments)
➢ Planning Board
➢ Agricultural Preservation Board
• Planning website posting on January 24
Recommendation
• Receive the proposal to amend the Comprehensive Plan and Unified Development
Ordinance.
• Conduct the Public Hearing and accept public, BOCC, and Planning Board comment on
the proposed amendment.
• Refer the matter to the Planning Board with a request that a recommendation be
returned to the Board of County Commissioners in time for the September 4, 2014
BOCC regular meeting.
• Adjourn the public hearing until September 4, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
- - - - - - - - - - - - - - - - -
Commissioner Gordon referred to the use specific standards chart and asked why this is
not included in the rural buffer section.
Perdita Holtz said the standards are the same in the rural buffer as they are in the
agricultural residential. She referred to the amendment package, in article 5 and said any
amendments in red are just adding RB to a few sections. She said the standards are the same,
and there has been no re-write of standards to make it pertain to the rural buffer.
Commissioner Gordon asked how the Planning Board consideration interfaces with the
joint planning consideration.
Perdita Holtz said, within the rural buffer, the planning board will make a
recommendation on the JPA amendments as well. She said the planning board will be briefed
on this in April, and information will be shared from the public hearing, planned for March 27tH
She said the UDO revisions being considered tonight will be on the April planning board agenda
for them to make a recommendation as well.
Commissioner Gordon said the recommendation will be made with just the hearing
comments, but not with the comments from the jurisdictions.
Perdita Holtz said the UDO amendments are not what are being heard at the March 27th
joint public hearing; this is to hear amendments to the joint planning land use plan and
agreement, and there are very few amendments that need to occur.
Commissioner Gordon asked for a memo listing those amendments.
Perdita Holtz said this can be done.
Commissioner Gordon asked when the input on the UDO from the Chapel Hill and
Carrboro public officials will come.
Perdita Holtz said public officials don't comment on UDO amendments unless staff
wants to bring something to their attention.
Commissioner Gordon asked when these comments are due.
Perdita Holtz said these were due by tonight, but these will still be accepted while the
public hearing process is going on. She said written comments can be submitted as part of the
JPA process.
Chair Jacobs asked if there are any items in this proposal that have the same issues that
the attorney and staff had in the previous proposal.
Perdita Holtz said this is not due to come back until September, so this is not an issue.
A motion was made by Commissioner Price, seconded by Commissioner Pelissier to:
1. Refer the matter to the Planning Board with a request that a recommendation be returned to
the Board of County Commissioners in time for the September 4, 2014 BOCC regular
meeting.
2. Adjourn the public hearing until September 4, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
VOTE: UNANIMOUS
7. Unified Development Ordinance (UDO) Text Amendment - To review government-
initiated amendments to the text of the UDO to change the existing public hearing
process for Comprehensive Plan-, UDO-, and Zoning Atlas-related
items/amendments.
A motion was made by Renee Price, seconded by Earl McKee to continue the public
hearing until May 27, 2014 to consider the recommended changes in the Unified Development
Ordinance text amendment to change the existing public hearing process.
VOTE: UNANIMOUS
D. ADJOURNMENT OF PUBLIC HEARING
A motion was made by Commissioner Price, seconded by Commissioner Rich to adjourn
the meeting at 11:34 PM.
VOTE: UNANIMOUS
Barry Jacobs, Chair
David Hunt
Deputy Clerk