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HomeMy WebLinkAboutAgenda - 05-01-1995 - IX-A M 1 O R A N G E C O U N T Y BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: May 1, 1995 Action Agenda Item # XX-A SUBJECT: ADVERTISEMENT - MAY 31, 1995 PUBLIC HEARING DEPARTMENT: PLANNING PUBLIC HEARING Yes x No ATTACHMENT(S) : INFORMATION CONTACT: Proposed Legal Notice Mary Willis Proposed Public Hearing Items Extension 2583 TELEPHONE NUMBERS: Hillsborough-732-8181 Durham -688-7331 Mebane -227-2031 Chapel Hill -967-9251 PURPOSE: To consider the legal notice for the quarterly public hearing scheduled for May 31, 1995. BACKGROUND: The next regular quarterly public hearing is scheduled for May 31, 1995. The Board of Commissioners reviews proposals to be considered at public hearing for consistency with general County policy and presentation format. Three rezonings within Orange County's planning jurisdiction are proposed. In addition, there is a proposed rezoning within the Carrboro Joint Development Area as identified on the Joint Planning Area Land Use Plan, which will be heard by both the Orange County Board of Commissioners and the Carrboro Board of Aldermen. One Zoning Ordinance amendment is proposed. The amendment was initiated by the County Attorney and clarifies which parties bear the burden of proof in the consideration of Special Use Permits. Items to be considered at the May 31, 1995 public hearing include the following: CARRBORO ZONING MAP 1. Z-4-95 Donald Keith Godwin The applicant proposes to rezone approximately 13.5 acres from Carrboro R-R, Rural Residential, which allows a maximum density of one dwelling unit per acre, to Carrboro R-20, which allows a maximum density of 2. 1 dwelling units per acre„ The property is located within Transition I Area of the Joint Planning Area Land Use Plan. L 2 A. ORANGE COUNTY ZONING ATLAS 1. Z-1-95 James Travis Rives The applicant proposes to rezone approximately 2.75 acres in the vicinity of White Cross from Agricultural Residential (AR) to Agricultural Services (AS) . 2. Z-2-95 Robert D. McBroom The applicant proposes to rezone approximately 3.0 acres in the vicinity of NC 86 North and Coleman Loop road from Agricultural Residential (AR) to Light Industrial (I-1) . 3. Z-3-95 Marion Henry Wilson, Jr. and Nancy Wilson Orange County proposes to rezone approximately 1.84 in the vicinity of Old Greensboro Road and Ferguson Road from Existing Commercial (EC-5) to Agricultural Residential (AR) per the attached letter from the County Attorney. ORANGE COUNTY ZONING ORDINANCE 1. Article 8.2 Special Uses An amendment to Article 8.2 is proposed to clarify that the applicant bears the burden of proof to show that a proposed Special Use is in harmony with the surrounding area, and that those opposing approval of a Special Use have the burden of proof in establishing that the use does not satisfy approval requirements. Approval of the notice will permit advertisement on May 17 and May 24, 1995 as required by the N.C. General Statutes. The notice must be mailed on or before May 12, 1995. RECOMMENDATION: The Administration recommends approval of the Notice of Public Hearing for May 31, 1995. • 3 NOTICE OF PUBLIC HEARING ON PROPOSED REVISIONS TO THE ZONING MAP OF CARRBORO, NORTH CAROLINA AND THE ZONING ATLAS AND ZONING ORDINANCE OF ORANGE COUNTY, NORTH CAROLINA Pursuant to the requirements of the General Statutes of North Carolina, Chapter 153A, Section 240, 323 and 343, and Articles 20.5, 20.6, 2.2. 12 and 2.2 . 13 of the Orange County Zoning Ordinance, and Article 2, Section 2E of Joint Planning Agreement between Orange County and the Towns of Chapel Hill and Carrboro, notice is hereby given that a public hearing will be held at the OWASA Operation Center, 400 Jones Ferry Road, Carrboro, NC, on Wednesday, May 31, 1995 at 7:30 p.m. for the purpose of giving all interested citizens an opportunity to speak for or against the following items: CARRBORO ZONING MAP The proposed amendment to the Carrboro Zoning Map is as follows: 1. Z-4-94 Donald Keith Godwin The applicant proposes to rezone approximately 13.5 acres owned by Thomas Walker and Gail Harris from Carrboro R-R, Rural Residential, which allows a maximum density of one dwelling unit per acre, to Carrboro R-20, which allows a maximum density of 2. 1 dwelling units per acre. The subject property is located on the north side of Tallyho Trail west of its intersection with Rogers Road (SR 1729) and is located within Transition I Area of the Joint Planning Area Land Use Plan. The property is more specifically described as Lot 25, Block C, Tax Map 23, of Chapel Hill Township. This rezoning requires approval of the governing Boards of both Orange County and Carrboro. ORANGE COUNTY ZONING ATLAS AMENDMENTS The proposed amendments to the Orange County Zoning Atlas are as follows: 1. Z-1-95 James Travis Rives The applicant proposes to rezone approximately 2.75 acres from Agricultural Residential (AR) to Agricultural Services (AS) . The subject property is located on the west side of White Cross Road (SR 1951) , approximately 3,800 feet south of Old Greensboro Road (SR 1005) and 4,200 feet north of the Chatham County Line. The property is more specifically described as a portion of Lot 18, Tax Map 38, of Bingham Township. 4 2. Z-2-95 Robert D. McBroom The applicant proposes to rezone approximately 3.0 acres from Agricultural Residential (AR) to Light Industrial (I-1) . The subject property is located at 1709 NC 86 between Coleman Loop Road (SR 1334) on the north and Coleman Loop Road (SR 1332) on the south. The property is more specifically described as Lot 20, Tax Map 3, of Hillsborough Township. 3. Z-3-95 Marion Henry Wilson, Jr. and Nancy Wilson The subject property is located approximately 600 feet west of Ferguson Road and approximately 1,600 feet south of Old Greensboro Road, with access to Ferguson Road via Combs Road, and is more specifically described as a 200' X 200' portion of Lot 6A, Tax Map 37B, Bingham Township. The current zoning is Existing Commercial (EC-5) . In November, 1992, the Board of Commissioners rezoned the property from Rural Buffer (RB) to EC-5. That decision was appealed by a neighboring property owner. The Court found that no evidence that the property had ever been used or a commercial Use permitted in the EC-5 district was presented at the prior public hearing. The case was remanded to the Board of Commissioners to conduct further proceedings to consider evidence, if any, which would justify zoning of the property to EC-5. The purpose of this public hearing is for the Board of Commissioners to determine if there is sufficient evidence to establish that commercial use permitted in the EC-5 Zoning District existed on the subject property prior to the adoption of Zoning Regulation in Bingham Township on September 2, 1981. In the absence of such evidence, the property will be rezoned from EC-5 to Rural Buffer (RB) . These rezonings require the approval of the Orange County Board of Commissioners only. ORANGE COUNTY ZONING ORDINANCE TEXT AMENDMENTS The proposed text amendments to the Orange County Zoning Ordinance are as follows: 1. Amend ARTICLE 8.2 SPECIAL USES to clarify that the applicant bears the burden of proof to show that a proposed Special Use is in harmony with the surrounding area, and that those opposing approval of a Special Use have the burden of proof in establishing that the use does not satisfy approval requirements. This amendment requires the approval of the Orange County Board of Commissioners only. All interested" citizens are invited to attend this hearing and be heard. Public comment will be received during the pubic hearing. Following the close of the public hearing, evidence and comments presented will be examined by the Orange County and Carrboro Planning Boards, as applicable, for • 4a recommendation, and the Orange County Board of Commissioners and Carrboro Board of Aldermen, as applicable, for decision. Changes may be made in the advertised proposals which reflect debate, objections and discussion at the hearing. Questions regarding the amendment to the Carrboro Zoning Map may be directed to the Town of Carrboro Planning Department, located in the Carrboro Town Hall at 301 West Main Street in Carrboro. Office hours are from 8:30 a.m. to 5:00 p.m. Monday through Friday. You may also call 968-7714. Questions regarding amendments to the Orange County Zoning Atlas may be directed to the Orange County Planning Department located in the Planning and Agricultural Center, 306F Revere Road, Hillsborough, North Carolina. Office hours are from 8:00 a.m. to 5:00 p.m. Monday through Friday. You may also call 732-8181 (Hillsborough) , 688-7331 (Durham) , 967-9251 (Chapel Hill- Carrboro) or 227-2031 (Mebane/Graham) . Please ask for extension 2575 or 2585. You will be directed to a staff member who will answer your questions. Marvin Collins Planning Director, Orange County Roy Williford Planning Director, Carrboro PUBLISH: May 17, 1995 May 24, 1995 . - 5 ■ ,..., , .. . 81 / 7 ...tr. ,.....\ • A , I \ i .., I , N\ \ ... ) ; •, 45‘ / ) 1 e k, 116* ,r . .:,..a RD.f 1 / : ‘ ■ E E N -t_ ,)------- r , , , r., ". , -- 1 17 r — ' i b ( / TWP0 1 1103 0 .10 MAC aabill \ . I 3 1 . s"■, \ //05 / \ \ .. ' \ 0 ', vs 6tu 1140c,ve), \.... -C. g --\ ( / 8 I,... c, .." co u. \yi ‘..\ g ( -' 66 , /1" ......„.....-•" 0 . § 41c,:, ----.........„„ ■• 1 ... + 414-7 1 § .0 44 er il , 1 J o ig Iiiiiik' 1 i TEwa....., Ma Ca- .." - ...i :--mdpAllills' IW kt —7 ... ! ) , o•P" White C • - , l'p , \ i'l o n\I \ -- -.,. ( v f 1 e I- N %( \I 47% '\ ..... . cr r .9 .....% 11 .4/ )isso N . !...11 \-,...,.... ...1,49. ........--- s.......■.,. ..--..../ i Er'' ,' 1 t i) ) 0 > , ..). r- .. e-i-d- : ,-- ( , __ ._ or (.1 ( , . .... ,. _, I IQ Imp 1 a7 7 *^-7•‘ I 1 z 0 I e. / \ / . 1/4, 1 , \ , 1 4,- cg I t r loo5 1 RD 7 is . fL \ ia Noil . .. '!in•r. ' i... . / •!' l .k . I, 1 : .g: , . . . ,o. 1 , i. : or ,10.:„, • --- i :: - ffeet ..., ,.. 4.-, ci \ 1 004 73 ....1 r) 1 ) VaLfijSa 3 I \ ( a IN: f i ..., k -‘W .._ . (\Alas ii.:11 , .1• ... '2 i i I--%i *0°0 V --..,..._.. -1._...: I I cFr I. P. • N arii■eg al allaill IN INNEN Immo a • a maw a awn.•anaai•NMI.IX Ir(mmill MIMI I I IIMINIIIIIIII■411g Chatham County JAMES TRAVIS RIVES Z-1-95 // 6 /1 1/ f/ 23 4527 20 ii T i/ 8444 63 AC. /1 ( 29 /"�)`7266 1/ 19.5 AC. AC. 1 144 AC. // Nr 4 R // . . . 1 // , 33 34 3,. A44. 5 AC. 2.5 PC. 2,38/•�C. .. �. .• ... Il 5361 840Q ::;::::::... / GSec� ::`. . II Hof - . .. .. . ::::`::::: i 4 Z4 • ?902 '9 O 3 19.25 Ac. AR AR :r I 'r 6499 r // • l/ FU `Di 0 1 '' 2 26 117.75 g 3085 FU I �� t 0479 5928 AC• 5-22 AE• ! li i • i iI I JAMES TRAVIS RIVES Z-1-95 .ANGE COUNTY, NORTH CAROLI": APPLICATION FOR CHANGE OF ZONING DISTRICT 7 �E E - Date : z - _. TO THE BOARD OF COUNTY COMMISSIONERS '' ORANGE COUNTY, NORTH CAROLINA The undersigned do hereby make application to change the Zoning Atlas of Orange County as hereinafter requested . 1 . T = • ro arty is located on the side of S .R . # .951 ( b # a brae./Road) between S .R . # -/Od5 end S .R . (i fi. -' It is known as Lot ( s) Block , of Orange County ax Map - �; �- Township . It has a frontage of d -' feet and a d '• t • f 4PAJa>►An feet , and contains 74J ! square feet or acres . 2. It is desir d and requested that the foregoing property be rezoned from M� to AVE; -- 3.- The .folLowing information has been _ attached . .in support of the application for changing the Zoning Atlas Is - required on all applications] . • 'a. A fully dimensioned veep at a scale of not leas than one (11 inch equals one—hundred (100) feet nor more then one (1) inch equals twenty 1201 feet—showing• the land which is proposed to be rezoned. 'b. A legal description of the land proposed to be rezoned. 'c. A statement of justification addressing one or more of the following: (1) The alleged error to the Zoning Ordinance, if any, which would be corrected by the proposed amendment with a detailed explanation of such error in the Zoning Atlas end detailed reasons how the proposed amendment will correct the error. (2) The changed or changing conditions, if any, in the eras or in the County genarslly, which make the proposed amendment reasonably necessary to, the promotion of the public health, safety end general welfare. '(3) The manner in which the proposed amendment will carry out the intent and purpose of the adopted Land Use Plan or part thereof. '(4) ALL other circumstances, factors and reasons which the applicant offers In support of the proposed amendment including, but not limited to, documentation from service agencies (e.g. firs, police, rescue and utilities agencies] assuring services provision capability to the development. d. A list of all individuals, firms or corporations owning property adjoining or within five hundred (500) feat of the property sought for rezoning is attached. The List 1s current as of (Gate) I % ce fy a a nformation furnished in this application is accurate to the best o o e Applicant (s) : A Address : / 3 ' Phone : L11:111CL- - ' 1 140,1f QF I o \ f `` g 8 RD. ,, - 1..• '-'15 i. , v ‘ , ,w 0,16. 706E' 1323 NSC r. 5'1".. I'�� a �.. �� . & 'IN5 "-\./.......* 4 l /3 j� .¢ r� PHELPS" BRO KS RD. O tv .s as ESQ ''rs ..�• KENION RD. 13�3 , /� "*+Ft' AO J---� 1',�, {f ✓ 1 \ p. CN.Po°` HALLS Mkt RD. �3 - s (/1 �'' f •. �LtOy,� : / O ! G' 1 32 . _1 �' 'BROOK ifO '337 Q. o / `` 1�/ lii�� J d ® �1�. BANE / 1 'r '� o / .! O w o'''' ! F�9 4 \ CO 7 4. \ I 1 ■■_ i 2' / J �P�y j t p 1332 Z lit, r E. I7 ( I �Qr r �+ i $URKE <F��NLJ rJ / � ,. �k �O 1556 ' ION i I \ 1 4 'o ''."4 • sr Ca . titi. ,i �WJt E 3L 5. War " Vi• i YEA a r 4., ' a 4 "�1 4 +���G 1 ,.„ ,{a ; t' . -,4 102 % k ,5 ""'9R - ; + i tfland os o rust* SL y' - y 7o v% T a. �. WEST '�"'. JOHN '. 44 _�fv, i s , RA.7 - r as ` '' `© . croon nu. 4tiot .,� sNA,-or le ic No ROBERT D. McBROOM Z-2-95 1 ` 13 5078 9 I I 2982 1 . 40 AC. . G.41 AC. 1' 3646 12 ` 1 1.93 AC - -_ 1 ® i' WHIG R 0! 936 ■ /�/ 463 5441 1' 9 2402 •1.65 '1 I.7 44C .4 1164C8 I.10 A AL 3 O 837E ` 2 I 1278 0 3118 23 N11 seo E N 5 AC. 60 '' ate::. . 0162 iii.: 480 2 \1 .. :......:.g49:2765 °ca \' 3'C589A e.oe 29. 255 • 25.3AC. es To. 3478 11_ . 3517 19 A 2.9853AC-66,.8 '1 > R 1' 2372 18 3 AC. 1' '' 3112 I7 3AC. • MAJOR BUS/NESSFQWS . ' . •'''. '11 Li X00/ I II '` 6993 z ® e ID—s-9 57;, ,, 1 '�30/ ' 7.57 AC. 21 AC/. .' ' ►tau 1 1 I6 / ,` �s 1 � O '. .3 2 ! :.:t. I rn 15.647AC. ! n� 1 ' 7491 \ 1,Jcr9 1 \ ' 7 N \ C)- F1�I 27 I ;6982 �O5 1 2.13 .3 poJ 1 3pIpG AC AC. g.03AC• `: .488 28 ,11 I 1 ftç3 I I :756 9092 10-3-g3 '.'1 OI _ _ l_ __ ,1 1 ROBERT D. McBROOM Z-2-95 • ORANGE COUNTY, NORTH CAROLINA APPLICATION FOR CHANGE OF ZONING DISTRICT 10 Date : 1711f4ft/ � Jr TO THE BOARD OF COUNTY COMMISSIONERS ORANGE COUNTY, NORTH CAROLINA The undersigned do hereby make application to change the Zoning Atlas of Orange County as hereinafter requested . ������� ,,//��Q 1 . The property is located on the _ 'L___side of S .R. f - ilegAo ( Street/Road) between S .R . # 1334 and S .R . # • It is known a ot ( s ) sec, , Block , of Orange County Tax Map 4 Township . It has a frontage of feet and a depth f 49'.2 ' feet , and contains /2 g square feet or '.x.98 acres . 2. It is desired and requested that' the foregoing property be rezoned from �le to S/ 3.- The -folLawing information has been _ attached .in of the • application for changing the Zoning Atlas (a - required on all applications] . 'a. A fully dimensioned map at a scale of not lass then one (11 inch e quals one—hundred (1001 feet nor more than one (1l inch equals.— s. twenty' (201 feet- showing'•-the land which is proposed to be rezoned. 6), 'b. A legal description of the Land proposed to be rezoned. •c. A statement of justification addressing one or more of the 5;11e. 111150. ij following (1) The alleged error in the Zoning Ordinance, if any, which would be corrected by the proposed amendment with a detailed explanation of such in the Zoning Atlas end detailed reasons how the proposed amendment will correct the error. (2) The changed or changing conditions, if any, in the area or in the County generally, which make the proposed amendment reasonably necessary to the promotion of the public health, safety end general welfare. '(3) The manner in which the proposed amendment will carry out the intent and purpose of the adopted Land Use Plan or part thereof. •(4) All other circumstances, factors and reasons which the • applicant offers in support of the proposed amendment including, but not limited to, documentation from service agencies (e.g. fire, police, rescue and utilities agencies) assuring services provision capability to the development. d. A Litt of alt individuals, firms or corporations owning property adjoining or within five hundred (5003 feat of the property so ht fq r ing is attached. The list is current as of —2/ Metal I certify that all information furnished in this application is accurate to the best of my knowledge . Applicant ( s) : i• Address : .' - 1 - ..� 1"710' — - _ 7 • Phone : • • 11 „ s - ' i i ° Diu Jo MAD , <.1. o ^1 if .N 1 L u•. 1 4, nos o, �� ��j. tea' hgaCNfy� --��c-T-, - .T�4O / ---' 1 000 07• - 0 44 ,,.....- Sid ..\ ', new a ' Dit' + 1W White C , ' 4' ' K4T °s� r.."..... `, p \ ' / #. l 1171 ( . l t t / „Cif 'QG i9 N 1 "'Y 9y �C'e op. ,- b N A V \ py'y �g ,. \,(P. o I9soo ' Y ■ �� ( tr RD. _ ._� ► ( '- I • , 0 C., I W v 4 0 EN c„ �� '•` > A OLO s �� ( N 1 1 I0 0 r \ - r;e� L, ` z l.003 , t 1 ' . °—''�, 7 X02 :ENSBORO RD. I I r T r t s°Illt straw ,...../"e4. --. i :' , i '4P- c-- -N .. \ EN.4... f \ _AIR-� i.J ,�3 t ) ( 004 A I 1a _`_ g J "�, ` �, 4 j6r `) M>z F.......$ c 0. ))\---I Lcr) '11 \ ....—.•,............. ati _• /1 Chatham Count ��� { Y ..... Marion Henry Wilson and Nancy Wilson Z-3-95 12 P c 'l : .. WJ ON l }•■® Ul S ,.3' r / 1 I" si\/ -/ 1 0 , ® `" '' r, g - / i ► w } 369' 2,T 1^1-51► a-e ; 3 74' S I �' eO c, � qi HQ in • ? 3 C. . I ° ®_ e. j i 111 0 Z . 1 ',.......:..:::::.A.. ..•i.......:....:...........!...::::5:. IV )4 1 . R:._ ':::::::::::::::*A... III:. AI 389' �� . ,i t. II t.rnt)\ -2_ t \- -' I 1 N \-;\`‘. ill I43 ,,, \744 ; : W ` . ✓ �Y z°, �� \I\ < py - . , ii i i itt... co vs W Q S ^ 3 p P. T - I. 4.,m.c (M � }' 13 LAW OFFICES COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN,JR. A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL DOUGLAS HARGRAVE 129 E.TRYON STREET KIM K.STEFFAN P.O.DRAWER 1529 HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON (919)772.2196 DOUGLAS P.THOREN FAX(919)772.7997 SAMUEL ELY COLEMAN April 12 , 1995 Moses Carey, Jr. , Chair. Bill Crowther Alice Gordon Stephen Halkiotis Don Willhoit • Orange County Board of Commissioners Post Office Box 8181 Hillsborough, North Carolina 27278 RE: Barton Lloyd et al. v. Orange County et al. Dear Board Members : In November 1992 the Board of Commissioners rezoned property formerly owned by Wayne Combs and his wife from Agricultural Residential (AR) and Rural Buffer (RB) to Existing Commercial V (EC-5) . That decision was challenged by neighboring property owners . In February 1995 a hearing_,was held on the validity of the zoning decision. Following that hearing Judge .Stephens concluded that there was no evidence presented at the public hearing that the property in question had ever been used for a commercial use permitted in the EC-5 zoning district. Judge Stephens, rather than reversing the decision of the Board of Commissioners, remanded the case to the Board of Commissioners to conduct further proceedings for the purpose of considering evidence, if there is any, of use of this property for a commercial use permitted in the EC-5 zoning district that existed prior to and on September 2, 1981, which would justify the zoning of the property to EC-5 . You'll recall that September 2, 1981 is the date on which Bingham Township was zoned. The property in question lies in Bingham Township. By separate letter to 14 Board of Commissioners Page 2 April 12, 1995 Marvin Collins, I am asking him to schedule this matter for public hearing during the May 1995 Planning public hearing. Very truly yours, COLEMAN GT.RDHILL & HARGRAVE, P.C. Geo frey E G el •hill GEG/lsg , Enclosure / xc: Marvin Collins V John M. Link, Jr. lsg\home3\boardl7.ltr 15 LAW OFFICES COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN.JR. A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL 129E TRYON STREET DOUGLAS HARGRAVE P.O.DRAWER 1529 IOM S7EFFAN HILLSBOROUGH,NORTH CAROLINA 27278 LANE B.DUTTON DOUGLAS P.THOREN (919)FAX(919)7% SAMUEL ELY COLEMAN FAX(919)73t-7997 March 7, 1995 Mr. Marvin Collins Planning Director Orange County Planning Department Post Office Box 8181 . Hillsborough, North Carolina 27278 RE: Special Use Permits Dear Marvin: As you know, of late I have been busy with appeals of Board of Adjustment decisions. That activity has alerted me to what I see as a source of ambiguity in the special use permit application process and the need to modify the Board of Adjustment's Rules of Procedure. Presently Section 8.2.1 of the Zoning Ordinance places the burden of proof on the applicant to prove the general conditions listed as (1) , (2) and (3) under subsection b) . Section 8.2.2 then purports to shift the burden of proof on those same matters to opponents of the special use permit. I think this process should be revised. The burden should continue to be the applicants to prove Section 8.2.1.b, (1) , (2) and (3) . Opponents of an application, on the other hand, should have no burden with respect to the matters contained in Section 8.2.2(b) and (c) . Opponents of an application will, of course, have the opportunity to present evidence on the matters contained in those subsections. Enclosed is a rewrite of Section 8.2.2 with highlighted (new) and cross through (eliminated) language that accomplishes this change. My reason for recommending that this change be made is to make it absolutely clear that the applicant has a burden to make a showing with respect to value of contiguous property and that the use must be in compliance with the County's "general plan" for development. These two items are fact specific and can be readily established by evidence available to the applicant at 16 Mr. Marvin Collins Page 2 March 7, 1995 the application stage. On the other hand, although the applicant can be required to show in general that the use will maintain or promote the public health, safety and general welfare, the applicant cannot be expected to anticipate every specific health, safety and welfare problem. Proof of any such specific problem should be the responsibility of opponents. The best statement of the principles involved here is that contained in Brough & Green, The Zoning Board of Adjustment, at pages 83-84 (2nd ed. Institute of Government, UNC-CH, 1984) . These principles were recognized and approved in a recent North Carolina Court of Appeals case, Signorelli v. Town of Highland, s 93 N.C.App. 704, 379 S.E.2d 55 (1989) . In that case, the applicant sought a special use permit. The permit was denied and the Superior Court affirmed on the basis that the "petitioner . failed to meet the burden of producing evidence and the burden of persuasion to allow the board to find in the petitioner's favor. " 379 S.E.2d at 57 . The Court of Appeals' decision affirming the Superior Court in Signorelli contains the first explicit recognition in North Carolina case law that "the evidentiary burden in special use permit proceedings can shift from the applicant to those who oppose the application. " Id. The Signorelli case is interesting also for its recognition that the applicant has some burden on the issue of public health, safety and general welfare, notwithstanding the caution on that point in the passage from the Brough and Green publication set out above. The Signorelli court concluded that the applicant had established a prima facie case because his application demonstrated compliance with the relevant specific requirements and therefore the question was whether the burden of showing that the proposed use would materially endanger the public health and safety had been met. The court stated that there was evidence that the plans were not specific enough for the board to properly decide whether or not the proposed use would materially endanger the public health and safety. In particular, the court noted that the board had found that: . .no set of plans or specifics were submitted regarding hours of operation, number of machines and tables, or methods of supervision so that protection of the public welfare against traffic and noise difficulties was not assured. Id. , 379 S.E.2d at 58. The court then concluded that "a plan lacking in essential details and specifics potentially threatens health and safety no less than a detailed plan which is antithetical to the public and the public interest. " Id. , 379 S.E.2d at 59 . In other words, the evidence before the board on i 17 Mr. Marvin Collins Page 3 March 7, 1995 the issue of public health and safety was that there was no evidence before the board on this issue. I recognize that all of this is perhaps legalistic to a fault. However, I think my analysis is correct and I wanted to share it with you if for no other reason than to test your quasi lawyering skills and set down in writing the basis for the ordinance change, together with an analysis that will help in its implementation when adopted. I have also enclosed a copy of a recent North •Carolina Court of Appeals decision in the case of Vulcan Materials Company v. Guilford County Board of County Commissioners, 115 N.C.App. 319, 444 S.E.2d 639 . That case approves the use of a special use permit standard in the Guilford County Zoning Ordinance which may • be helpful to Orange County and which could be an addition to the third special use permit general standard in the Orange County Zoning Ordinance. That standard is that the special use be "in harmony with the area in which [it] is to be located. . . . " Id. , 444 S.E.2d at 642. As you can see by the analysis of the court in the enclosed opinion, that standard permitted a denial of an industrial use (rock quarry) when competent, material and substantial evidence was presented that the use contemplated was in fact not "in harmony" with the surrounding residential and agricultural land uses, notwithstanding the general conformity implicit in the fact that this special use is one permitted in the agricultural/residential zoning district. I commend this approach and have included language in the rewrite of Section 8.2.1 which will accomplish it for your consideration. Finally, I have reviewed again the Orange County Board of Adjustment's Rules of Procedure and recommend the changes enclosed. These recommended changes arise out of one or more North Carolina Appellate Court decisions. The most important proposed change is to Section 3(e) . One North Carolina Court of Appeals decision remanded a board of adjustment decision because, among other reasons, the chair failed to summarize the evidence presented at the special use permit hearing and provide the parties an opportunity to make objections or corrections before the board of adjustment made its decision. Cardwell v. Forsyth County Zoning Board of Adjustment, 88 N.C.App. 244, 362 S.E.2d 843 (1987) , rev. denied 321 N.C. 742 (1988) . It seems to me that no matter how helpful such a practice is, it need not be the basis for overturning a board of adjustment decision. In that regard, there is no comparable requirement or practice by the Board of Commissioners in its special use permit procedures. Also, eliminating the requirement that the chair of the board of adjustment summarize evidence does not mean that the chair cannot do this if it is the practice. 18 Mr. Marvin Collins Page 4 March 7, 1995 I'll be glad to review all of this with you. I would hope that an ordinance amendment consistent with this letter could be considered by the Board of Commissioners at the next scheduled regular quarterly public hearing and the Board of Adjustment could consider the Rules of Procedure changes as soon as practical. Very truly yours, CO AJ i GLEDHILL & HARGRAVE, P.C. Ge. rey E. Gledh 11 GEG/lsg Enclosures lag\home3\mcollin4.ltr • 19 Revisions to Article 8 - Special Uses 8.2.1 Before any application for a Special Use shall be approved: a) The applicant shall have the burden of establishing, by competent material and substantial evidence, the existence of the facts and conditions which this ordinance requires for approval; and b) The Board shall make written findings certifying compliance with the specific rules governing such individual Special Use and that the use, which is ' listed as a Special Use in the district in which it is proposed to be located, complies with all required regulations and standards including the following general conditions: Amended (1) The use will maintain or promote the public 1/8/90 health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted; (2) The use will maintain or enhance the value of contiguous property (unless the use is a public necessity, in which case the use need not maintain or enhance the value of contiguous property) ; ' '" „fSdSSCi?LS�d OeCa£':tiX f'itv..1a 2 r.N;c;?{Sa�. �v4acv � h x e use is in comp lance wi e genera p an for the physical development of the County as embodied in these regulations or in the Comprehensive Plan, or portion thereof, adopted by the Board of County Commissioners; and including all applicable provisions of Articles 4, 5, 6, 7, 9, 10 and 12 of this Ordinance, unless greater or different regulations are contained in the individual standards for the specific Special Use. It shall be the responsibility of the applicant to present evidence in the form of testimony, exhibits, documents, models, plans and the like to support the application for approval of a Special Use. 8.2.2 Where the Board finds a preponderance of evidence to indicate compliance with the general standards, specific rules governing the specific use and that the use 20 complies with all required regulations and standards the application must be approved unless the Board shall also find, in some specific mannel. that: Amended a+ The use will not maintain or promote the public 1/8/90 health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted; b) The uco will not maintain or enhance thc value of contiguous property (unlcoo thc uoc in a public nececoity, in which case thc uoc need not maintain or enhance the value of contiguous property) ; 0) Thc use is not in compliance with the general piano • fer thc physical development of the County an embodied in theoc regulations or in the• • - • = = = - • • - - = - - Those opposing approval of the application on the grounds that the use will not promote the public health, safety and general welfare, will not maintain or cnhancc the - = - - • . the general piano for the physical development of the County shall have the burden of establishing, by competent material and substantial evidences the specific manner in which the proposed use does not satisfy the requirements for approval of the application for a Special Use. lsg\home3\art8.amd 21 VI. Appeals and Applications B. Procedure for Filing Appeals ¢re. r " A o- ;I' Amended No appeal shall be heard by the Board unless notice 6/11/90 thereof is filed within thirty (30) days after the decision, determination or directive was made by the Zoning Officer and record of that action filed in the office of the Zoning Officer. No appeal ', <n ` x - y # shall be considered by the Board 'tin ess a comp a e• application is received. All applications for hearings shall be filed with the Secretary, or with the Zoning Officer, who shall act as Secretary for the Board in receiving this notice. All applications shall be made upon the form furnished for that purpose, and all required information shall be provided thereon before an appeal or an application shall be considered as havin• been filed. Any 4,47.7R4 s< ; ':a }rK ;:: .. _ _ _ = = may appea from any order or act of the Zoning Officer pertaining to enforcement of the Zoning Ordinance. • • • . C. Hearings g • 3. Conduct, of Hearing Any party may appear in person or by agent or by attorney at the hearing. The order of business for each hearing shall be as follows: (e) the Chair ohall oummarisc thc ovidcnoo which hao bccn prcocntcd, giving thc partico an Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law Zl aa. ft y Sf '.YrcYS+C4 S"y' "i r >k 3{ a cF s a, „c i.C .v+ti t sa 6e X a Nsi 'yu t • §.cr.. h�a, k '£.�,�� ��"'£a,a �ssqq,, ��a#�wr alto�ry Y t°xLa.,a"`.":.;,,-.. ,..•.:..�rw ..- 'S`� e = •ar• may, n i s •iscre ion, v ew e premises and obtain additional facts in the matter before arriving at a determination of the case. lag\home3\vibbdad.doc