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HomeMy WebLinkAboutAgenda - 05-31-1995 - D1(c) 04 ORANGE C O U N T Y BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: May 31, 1995 Action Agenda Item #.,D 1 c) SUBJECT: Z-3-95 Marion Henry Wilson, Jr. and Nancy Wilson DEPARTMENT: PLANNING PUBLIC HEARING X Yes No ATTACHMENT(S) : INFORMATION CONTACT: Mary Willis X2583 Vicinity Map TELEPHONE NUMBERS: Correspondence from County Attorney Public Hearing, Planning Board, and Hillsborough - 732-8181 Commissioners Minutes from Combs Durham - 688-7331 Rezoning (Z-3-92) Mebane - 227-2031 Chapel Hill - 968-4501 PURPOSE: To receive citizen comment concerning the land use which existed on a .92-acre parcel (6.37B. .6A) when Bingham Township was initially zoned on September 2, 1981. BACKGROUND: On November 2, 1993, the Board of Commissioners approved the rezoning a .92-acre portion of a 6-acre lot located on the west side of Ferguson Road, between Old Greensboro Highway and Jones Ferry Road, from Rural Buffer (RB) to Existing Commercial (EC-5) . The property was owned by Donald Wayne Combs, who was operating an automobile storage and salvage business on a portion of his lot. The Board of Commissioners approved the rezoning on the basis that the property was being used for automobile storage and salvage when Bingham Township was initially zoned on September 2, 1981, and that it should have been zoned EC-5 at that time. The decision to rezone the property was appealed to Superior Court. The Court ruled the evidence submitted during the public hearing was insufficient to justify the rezoning of the property and remanded the case (sent it back) to the Board of Commissioners for further consideration. Intent of EC-5 District The EC-5 existing Commercial Zoning district is generally applied only upon initial adoption of zoning of a township, to properties located outside of activity nodes or U_n transition areas which are already used for certain commercial purposes. Application of the EC-5 district renders existing uses which are allowed in the district as conforming, allowing the use to be replaced in the event that it is destroyed and allowing it to be replaced with any other use allowed in the EC-5 district. The following uses are permitted in the EC-5 district: Uses Allowed by Right H1 Day Nursery, Daycare, Private Kindergarten H2 Single-Family dwelling H5 Mobile Home H6 Family Care Home P4 Bus Passenger Shelter P7 Church P10 Governmental Protective Services P21 Schools: Dance, Art and Music P25 Water and Sanitary Sewer Pumping Stations S3 Animal Hospitals; Veterinarians S6 Banks and Financial Institutions S7 Beauty and Barber Shops S10 Farm equipment and sales S13 Greenhouses (no on premises sales) S14 Greenhouses (on premises sales) S15 Health Services: Under 10,000 sq. ft. S21 Laundry and Dry Cleaning Services S24 Motor Vehicle Maintenance and Repair (Body Shop) S25 Motor Vehicle Sales Rental (new and used) S26 Motor Vehicle Services Stations S28 Offices and Personal Services. . . (low impact) S33 Printing and Lithography S39 Restaurants: Carry Out S40 Restaurants: Drive In S41 Restaurants: General S42 Retail Trade. . . (low traffic/impact) S43 Retail Trade. . . (medium traffic/impact) S45 Retail Trade. . . (high traffic/impact) S50 Storage of Goods, Outdoor S51 Storage and Warehousing, Inside Building S53 Wholesale Sales Uses Requiring Class A Special Use Permit P16 Public Utility Stations. . . Uses Requiring Class B Special Use Permit H7 Group Care Facility P3 Buildings; Portable P22 Transmission Lines J1. Zoning History of Property When Bingham Township was initially zoned on September 2, 1981, the subject property was zoned AR Agricultural Residential (Rural Buffer zoning was applied in 1987) . The Planning Staff was not aware of any commercial use on the property at that time. There was no evidence presented during the public hearing process in 1981 indicating that the property was used for a commercial use allowed in the EC-5 district. In October, 1991, complaints were received regarding the use of the property for storage and salvage of automobiles. The Zoning Officer found that the use of the property for the storage and salvage of automobiles was - in violation of the Zoning Ordinance. The property owner claimed that the property had been used for the storage and salvage of vehicles prior to adoption of the zoning regulations for Bingham Township, and appealed the Zoning Officer's decision to the Board of Adjustment. The Board of Adjustment chose to delay any decision on the interpretation of the Zoning Officer to allow time for the applicant to request that the property be rezoned to EC-5 on the basis that the use already existed when Bingham Township was zoned. The applicant then requested that the property be rezoned from Rural Buffer (RB) to Existing Commercial (EC-5) . On November 2, 1992, the Board of Commissioners approved the rezoning of .92 acres from RB to EC-5. Minutes from the public hearing and subsequent meetings of the Planning Board and Board of Commissioners are attached. The rezoning decision was challenged by neighboring property owners in Superior Court. The Superior Court ruled that the evidence and testimony presented in the Combs rezoning did not show that a commercial use allowed in the EC-5 district existed on the property when Bingham Township was zoned. Purpose Of This Hearing The purpose of this hearing is to provide an opportunity for new information to be submitted regarding the use of the property when zoning was applied in 1981. RECOMMENDATION: Article 20.3.3 of the Orange County Zoning Ordinance requires that the Zoning Officer's recommendation be presented to the Planning Board within 30 days of receipt of an application. The 30-day period may be extended up to 60 days with the written consent of the applicant. The public hearing is the time scheduled for presentation of the Zoning Officer's recommendation. Zoning Officer Recommendation If, based on new evidence received at the public hearing, the Planning Board and Board of Commissioners find that a commercial use allowed in the EC-5 zoning district existed on the property on September 2, 1981, then the Zoning Officer recommends that the current EC- 5 zoning district remain unchanged. If new evidence presented at the public hearing is not sufficient for the Planning Board and Board of Commissioners to find that a commercial use allowed in the EC-5 zoning district existed on the property on September 2, 1981, then the Zoning Officer recommends that the property be rezoned to RB Rural Buffer. Administration Recommendation The Administration recommends that the proposed Zoning Atlas amendment be referred to the Planning Board for a recommendation to be returned no sooner than August 3, 1995. 0 a ^ ► Uj 1 34 i OL White "" wwwww \ N Q 911 ` j aaic CARL a �l QQ' o gJp 1 Rae RD / // OLD V I c — 1 v , 1 : RO RD. S /r 1005 TOMMY } � 1 b \ ,r R Gomm■ , �9 Al ilium a a a�alom■ ww 1 �~ TULA Chathc ��� m County a Mom Marion Henry Wilson and Nancy Wilson Z-3-95 f Y V E r 1 b f L L Old ru gg .p •�" ; 1 N S. 1 c cc a a cc �� � h O Ole .� bi M ® ~Q C13 i C4, l -� V. J ' n 1 > �M ZZ �" r t5 t� Z-3-95 BINGHAM TOWNSHIP AFFECTED PROPERTY OWNERS Marion Henry Wilson, Jr. and Nancy Wilson Page One of Two Tax Map Number Property Owners 6.37B. .2 * New Hope Missionary Baptist Church No Address Given 6.37B. .3 David and Juanita McCauley 9811 Carrie Road Chapel Hill, NC 27514 6.37B. .4 Edward Lee Foushee 140 Nature Trail Chapel Hill, NC 275N 6.37B. .4A Bobby Burnette, Jr. 4200 Willis Road Chapel Hill, NC 27516 6.37B. .4B Bobby Burnette Beatrice Burnette Box 61 Carrboro, NC 27510 6.37B. .5 W. Jerry Baldwin 6.37B. .5B 1320 Ferguson Road Chapel Hill, NC 27516 6.37B. .5A Glenn E. and Phylinda H. Baldwin 1322 Ferguson Road Chapel Hill, NC 27516 6.37B. .6 Darryle L. Farrar 1321 Ferguson Road Chapel Hill, NC 27516 6.37B. .8 Gary William Zadjeika 6.37B. .8B 10 Tara Place Durham, NC 27707 6.37B. .8A Janie Gold Downey c/o Henry N. Downey 1204 Ferguson Road Chapel Hill, N 27516 * No available address owi _. Z-3-95 BINGHAM TOWNSHIP AFFECTED PROPERTY OWNERS Page Two of Two Tax Map Number Property Owners 6.37B. .8C Charles W. Alden 6.37B. .8H 730 Williams Circle Chapel Hill, NC 27514 6.37B. .8D Tamela J. Wilson Barbara E. Phillips 4205 Peeler Creek Road Chapel Hill, NC 27516 6.37B. .8E Barton Lloyd, Jr. 6.37B. .8G P.O. Box J Carrboro, NC 27510 6.37B. .8F Randel K. Whitehead 1909 Jo Mac Road Chapel Hill, NC 27516 6.37B. .9 Eva Laura Pennix 4119 Willis Road Chapel Hill, NC 27516 6.37B. .9C Charles F. Capers Annie C. Capers 4125 Willis Road Chapel Hill, NC 27516 6.37 . .32 Mary C. McCauley Barbara J. Worth 200 4th Avenue East Orange, NJ 07017 JRH 2-14-95 LAW OFFICES O O COLEMAN, GLEDHILL & HARGRAVE A PROFESSIONAL CORPORATION ALONZO BROWN COIN.!R. GEOFFREY E GIMHILL 129 E.TRYON STREET DOUGH HARGAAVE P.O.DRAWER 1529 KIM K SfEFFAN HRLSBOROUGH.NORTH CAROLINA 27278 JANET B.DurMN (919)732.21% DOUGLAS P.THOREN FAX(919)732.7997 April 12, 1995 SAMUEL ELY CpLMAN Mr. Marvin Collins Planning Director Orange County Planning Department Post Office Box 8181 Hillsborough, North Carolina 27278 RE: Barton Lloyd et al. v. Orange County et al. Dear Marvin: Judge Stephens remanded the referenced case to the Board of Commissioners for reconsideration, holding that the evidence presented at the zoning change public hearing did not justify the rezoning the property in question from a combination AR and RB to EC-5. I recommend that this matter be noticed for a public hearing at the quarterly public hearing in May for determination thereafter. I have recently heard from Robbie Smith who represents the Wilsons, the present owners of the property in question. Mr. Smith tells me that he is interviewing witnesses and the like to focus on the question of a commercial use permitted in the EC-5 district. I have also heard from Grainger Barrett. He is inquiring as to when this matter will be resolved. Very truly yours, COLEHM GL MHTT•T. & E U1GRAVE, P.C. ?offre E. G1 dhill GEG/lsg lag\h— 3\mco11i12.1tr LAW OFFICES COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN,JR. A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL DOUGLAS HARGRAVE 129 E.TRYON STREET P.O.DRAWER 1529 qM K STEFFAN HILLSBOROUGH.NORTH CAROLINA 21273 JANET B.Dl TTON (919)732.2196 DOUGLAS P.THOREN FAX f919)732.7997 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 s ` 5t ) 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 GLEDHILL & HARGRAVE, P.C. Geo frey E G el hill GEG/lsg , Enclosure ' xc: Marvin Collins t1 John M. Link, Jr. 1sg\home3\board17.1tr Y . NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE `.: Superior Court Division. File No. 9 3 CvS 911 "' ' �� ? r;; ? ORANGE COUNTY _ II/ BARTON LLOYD, JR. ; RANDAL ) _ WHITEHEAD; and GARY ) ZADJEIKA, ) Plaintiffs , ) V. ) ORDER ORANGE COUNTY; ORANGE ) COUNTY BOARD. OF ) COMMISSIONERS; and MARION ) HENRY WILSON, JR. , ) Defendants . ) THIS CAUSE came on to be heard before the undersigned Judge Presiding over the two week Orange County Civil Super-- or Court Session commencing January 23, 1995 and was called for trial by the undersigned at 9 : 30 a.m. Wednesday, February 1, 1995 . Grainger R. Barrett, Esquire, appeared as counsel for Plaintiffs . Geoffrey E. Gledhill, Esquire, appeared as counsel for Defendants Orange County and the Orange County Board of Commissioners (hereafter respectively "the County" and "the Board" ) . Robert H. Smith, Esquire, appeared as counsel for Defendant Marion Henry Wilson, Jr. (hereafter "Wilson" ) .. The parties presented the Court with the Record of the proceedings before the Board which consisted of minutes of the proceedings of the Board and all documents presented for consideration by the Board during the public hearing held by the Board on an application to change the zoning of property located in Orange County (hereafter "the Record" ) . This case results from the November 2, 1992 decision of the Board, following the proceedings referred to above, to change the 1 � • — • r zoning of a 40, 000 square foot portion ( 200 feet x 200 feet) of property now owned by Wilson (hereafter "the property,, ) from Agricultural Residential (AR) and Rural Buffer (RB) to Existing Commercial-V (EC-5) . Attorneys for the parties acknowledge to the Court that the Court should apply the "whole record" test in considering this challenge of the zoning decision of the Board, and that the proper scope of review is for the Court to determine if the decision of the Board changing the zoning of the property was arbitrary, capricious or without a reasoned basis•. Attorneys for the parties further acknowledge that the challenged zoning decision may be found to be arbitrary, capricious or without a reasoned basis if it is not supported by substantial evidence presented to the Board. The Court considered the Record and the arguments of counsel and made the following conclusions based on its whole record review: 1. The EC-5 zoning district in the County Zoning Ordinance is a district used during the application of zoning to previously unzoned townships in the County to accommodate existing commercial uses . This designation can only be applied to property used for existing commercial uses at the time of application of the Ordinance to the property in question. Section 4.2 . 12 of the County Zoning Ordinance. 2 . The Permitted Use Table of the County Zoning Ordinance contains a list of commercial uses permitted in the EC-5 zoning district which list includes Motor Vehicle Maintenance and Repair 2 Y 062 (Body Shop) . That list does not include Junk Yards . Section 4 . 3 of the County Zoning Ordinance. 3 . The terms "Motor Vehicle Maintenance and Repair" and "Junk Yard" are both terms defined in the County Zoning Ordinance. Article 20 of the County Zoning Ordinance . 4 . The property is located in Bingham Township in Orange County which township was made subject to the County Zoning Ordinance on September 2 , 1981. 5 . The evidence contained in the Record is . that the commercial activity conducted on the property prior to and on September 2, 1981 fairly fits within the County Zoning Ordinance definition of a Junk Yard but does not fit within the County Zoning Ordinance definition of Motor Vehicle Maintenance and Repair. Article 20 of the County Zoning Ordinance. 6 . There is no evidence in the Record of Motor Vehicle Maintenance and Repair occurring on the property in question prior to and on September 2, 1981 and there is no evidence in the Record from which Motor Vehicle Maintenance and Repair on the premises prior to and on September 2, 1981 can be inferred. 7 . A decision by this Court reversing the November 2, 1992 decision of the Board will have the effect of changing the zoning of the property from EC-5 to AR and RB and making the present use of the property in violation of the County Zoning Ordinance and putting the present owner of the property, Wilson, "out of business . " Based on the foregoing, the Court, in its discretion, ORDERS, ADJUDGES AND DECREES as follows: 3 1. This matter is remanded to the Board for further proceedings consistent with the findings and conclusions of the Court reached above and to consider any further evidence concerning the use of the property before and on September 2 , 1981 constituting Motor vehicle Maintenance and Repair or any other commercial use made permissible by Section 4 . 1 . 2 (the Permitted Use Table) of the County Zoning Ordinance on September 2, 1981 in the EC-5 zoning district. 2 . ' Any such evidence may be presented to *the Board by the applicant, the present owner, and any other person pursuant to procedures for receiving the same established by the Board as provided in the County Zoning Ordinance and otherwise by law. 3 . In the absence of any evidence to show the existence of commercial use of the property, permissible by Section 4 . 1. 2 of the County Zoning Ordinance, on September 2, 1981, presented during the further proceedings authorized by this Order, a decision by the Board to retain the EC-5 zoning classification for the property would be erroneous as a matter of law and would have to be reversed by this Court. This the L'� day of February 1995. The Hono able Donald W. Steph s Judge Pr siding 1sg\home3\11oyd.ord 4 ,Adopted Minutes - Public Hearing August 24, 1992 - Orange County Board of Commissioners r 6 = to implement some kind 'of open space area aroind Hillsborough on its own, it could do so. In answer to a question from Mr. Drowns to Mr. Cogswell on how soon the company would build any structures an the property, Mr. Cogswell indicated that it would be at least March, 199t, before any houses are built. DON HILL applaud the plan. He aljoins the property and sees nothing wrong with developing the land. The plan seems to be a good plan. There needs to be more room to put more peop PETER KEISTER of Strayhorn Hills tated he moved to this area because of the rural character of the area This proposal will put an n . imposition on traffic, on getting around, a on enjoying the life here in C Hillsborough. This plan has problems. He que tions the prefix "NEO" and the definition of .rural village as one with'1,00 homes. He feels that people are not going. to abandon their cars and sta within the area to do their shopping. He feels that if the developers b ild the village center first, that the concept of the village would be more eal. However, the first stage includes the golf course and the second stn is still upscale. He feels that there will be an overburden of the resour es and a general deterioration of the quality of life. The ideal would be 60 1 homes on this 629 acre tract. He felt that this development should be place on 629 acres near Cary and not in orange County. KAREN BLY who lives on New Hope Ch, h Road spoke against the plan.. She is outraged and is firmly against it. he does not believe that all these people are going to live in this littl village and never go to work-- and that there will be enough jobs in this 1 ttle village for everyone not to travel downtown or New Hope Church Roa or University Station. She encouraged everyone to take a close look at th Ls because she feels it is very important to their community. A motion was made by Commissii iner Halkictis, seconded by Commissioner Gordon to refer this item the Planning Board for a recommendation to be returned to ,the Boar4 , of County Commissioners on October 5, 1992. VOTE: UNANIMOUS . � ZONING ATLAS A1�RDI�l1'PS �s 92 na Wayne Combs In summary this item is to rtceive citizen comments on a proposed Zoning Atlas amendment in Bingham Tcwnship. The property is located - 597.22 feet west of Ferguson Road and contains 1.84 acres. The property has a width of 200.45 feet and a di ath of 400 feet. The current zoning designation of the property is RB- Buffer. The proposed zoning designation is EC-5 Existing Commercial-5. The request has been made to correct an apparent error in the Zoning AtIal. . The rezoning was initiated as a means of resolving a zoning violat' n involving the storage of automobiles. The applicant alleges that the lezoning will correct an error in the zoning Ordinance, in that the propert r was used for the storage of automobiles prior to the zoning of Bingham Tos nship in 1981. Planning staff has been unable to substantiate the applican 's claims through examination of aerial photos. The photographs show that Ln 1979 and in 1982 there were 7 not any motor vehicles' on the parcel. Th Zoning Officer has reviewed the application, the site plan and all suppo ing documentation and has found that no error was made in respect to this roperty in the Zoning Atlas when zoning was adopted for Bingham Township o September 2, 1981. The current owners of the property purchased the fir six acres on February 9, 1984. The twelve acre lot to the north was p hased in January of 1991. Jim Hinkley noted that currently there is a thr a bay garage on this property and automobiles are being refurbished. Parts a being taken off of automobiles in the salvage yard.and being used to refur ish automobiles to make them road worthy again. The parcel is also currently eing used for insurance purposes where damaged automobiles -are stored anti there is a determination by the insurance company on what to do with them It is also being used for the storage of cars which are towed off th streets of chapel Hill.. The recommendation is that, provided the Planni q Board and County Commissioners find in the negative, the Zoning Officer recommends disapproval of the request. COMMIS O d ISSIONERS O OARD In answer to a question from Mr. Waddell, Mr. Hinkley stated that the eastern most portion toward Ferguson ad is -in the upper most area of l-he University Lake. watersbed. PUBLIC COXXMs ROBERT SKITH, lawyer for the C J in this matter, stated that the only way Mr. Combs can continue this open is to rezone this property to EC-5. This would acknowledge that this sed for commercial purposes _at the time the zoning became effective ptember 2, 1982. This matter started with one complaint to the Orange ty zoning office in the fall of 1991. The property was purchased in May 79 by J-D. and Doris Martin for the purpose of storing junk cars and it w used for that purpose the entire time they owned the property. They called Orange County and was told that this was a permitted use. He stressed that If this is allowed to be rezoned, it will not be allowing anything new, but k continuation of something that has been there for quite some time. Mr. mbs has tried real hard to be a good neighbor. He has kept the cars away from the road and away from the adjoining property. He has kept a natural ier between where he keeps the cars and the adjacent property. In additior , after they bought the property, theme built a house on the property and that is where they live. No cars can b1f.seen from Ferguson Road. He presented i petition with 170 signatures .in support of this proposal. If the person WD complained about this property had approached Mr. Combs, he would have wo ed out the problems. One of the concerns was that there were too many cars Dn the property. In response to this complaint, Mr. Combs removed 200 carl from the property in December, 1991. Another concern was that Mr. Combs s working on cars. There is a garage on the property. Originally, Mr. ( ombs had applied for a building permit and received a certificate of occup ncy from Orange County to store some of his personal cars. He has applied f or a home occupation permit which would let Mr. Combs work on cars. Mr. Smith feels he can 'meet the requirements for that and work on cars =dex the present zoning. The problem. is that there is not a home occupation per it for storing cars. They went`; to the Board of Adjustment which suggested that they apply for a rezoning. '. .t 8 • The EC-5 zoning would not .establish a wide-op in commercial area with all the permitted uses. All it allows is the type of use that was there at the-time the Zoning Ordinance was approved. They a asking that this error be corrected .and that this land be rezoned to E 5. He feels that Mr. Combs is providing a public service. He is available -hours a day for wrecker calls from various law-enforcement agencies. Mr. th submitted various documents for the record including a copy of the deed f the people who purchased the property in 1979, affidavits showing the us of the property, survey which shows that some properties were found t be allowed to continue as commercial, receipts for the cars which were rushed, privilege licenses and other documents showing that the business s been in operation for some time. In answer to a question from Commiss' ner Gordon about the increase in the number of cars, Mr. Smith indicated at they would certainly try to keep the number of cars down. TROOPER MARK T. BROWN spoke abo the service that Mr. Combs provides. Mr. combs responds to accidents a all hours of the night. He is a definite asset. He does a good job and d as not complain. His storage area is in a key location on the south side f the county. There are only one or two -other places they can store vehi les. The cars cannot be seen from the road or any public access. He keeps a area neat and organized and works well with all the law enforcement age ies . GLMM BALDWIN purchased in 1979 on to two acres on the north side. of the Combs' property. He noticed that the a were cars on the property in question. The cars did not bother him then d they do not bother him now. Mr. Combs in-an excellent neighbor and a fr end. He asked that the Board_ . vote to allow them to continue to operate i this area. HENRY ROMMY has boon a neighbor of Mr. Combs for five or six years.* Mr. Combs in a good neighbor and he upports the rezoning. DOUG Gr-M purchased 11 acres in 964 on Ferguson Road which is connected to Mr. Combs' property. There i no evidence that there is a garage or cars stored on the property. His ouse is nice and he provides a service to the community. He wants Combs t be able to continue. EDM2 FOUSMM lives across from Combs. He noted that the property is kept neat with all the cars line up like soldiers, the grass is mowed and there is no junk. His house is n There is no traffic problem and he sees nothing wrong with keeping it way it is. T.C. MMSOX. a8, noted he has en car crushing for Mr. Combs since 1986. A division of his company has en recycling metal since the early 1970's and car crushing since 1986. Mr Combs was waiting on the price to increase on metal before moving out the s he had accumulated. He sold his cars as ordered by Orange County. They ought several thousand dollars less than they would have on a good scrap tal market. Hudson does car crushing for all of central North Carolina d have never been to a yard as well kept as Combs. Since 1986, Nr. Combs ha had about 200 tons of cars per ; year crushed until December when he crushed 0 to be in compliance with the County's order. He wants Mr. Combs to be all ad to continue. He emphasized 9 that Wayne Combs is a man of his word. HUBERT-ARRINGTON stated that he knew ter. Martin when he owned the property and he helped him move some cars n the property in 1979- and 1980. Mr. Combs is a fine person who has a well Drganized place. SARTON LLOYD owns two lots to th south of the proposed area to be rezoned. His understanding is that the i sue is whether or not .cars were stored on the property when the zoning cam into effect in Bingham Township in 1981. When he acquired these two lots, a was aware that cars were being stored on Mr. Combs' property. He became oncerned when trees were cut and the lot was expanded. He asked that if the EC-5 zoning is granted, -it reflect very precisely the actual area of and that was in use as a storage facility in 1981-at the time that it would iave had to be in use as a storage facility to justify such a rezoning. He doesn't know if there were cars there at that time or how many. GARY ZAW_Z= owns two lots in e- southwest corner of this area. He asked if the application for a business icense is reviewed and if so why the zoning was not checked. He is in the laage business and had to appear before the Board of Commissioners in orde to get a conditional use permit before getting his privilege license. He ted that it seems that Mr. Combs business is growing and that there were st ctures built on the property. County Attorney Geoffrey Gledhil stated that Orange County does not license businesses as such. They do is ue permits for some kinds of land use like Special Use Permits and Home Oc pation Permits which are for a particular use of the land. Privilege lie uses are issued by the state and the towns. Gary Zadjeika stated no oppositi n to Mr. Combs continuing within the space that was preexisting but does t agree with rezoning the area which has been cleared since 1981. XUALrM FORD owns a large tra t of land west of the Combs' property. He has no objection to the zon g change and feels it is a good use of the property. There have been c there since the mid 501s. He worked for Mr. Martin since high school. MLYRE -XELInM lives in a mobile ome approximately 50 feet from where the cars are stored. He has lived th a for six years and this salvage operation has never bothered him. There is o erosion and he has never found a creek on the property. DURAOOD HOUSE lives on Damascus uFch Road. He spoke in support of this rezoning. He has known Wayne C s for a lot of years. He is dependable. . The site is clean and can t be seen from the road. He indicated that he has nothing but good gs to say about Mr. Combs. MOXITH XAR?IN , stated that he the son of the man who sold the land to Mr. Combs. The land was origin y purchased for the purpose of storing junk cars. That use Was permitt by the County at that time. He and his father used the land to store c for parts in their automobile' t 06S 10 repair business. At .a later time they sol the land to Mr. Combs for the same use. He indicated that he continues to se this land to store cars from his business and that Orange County needs p ces to store these cars. This lot is not visible from the road and it se s a need in the community. In response to a question from Co issioner Gordon, Mr. Gledhill indicated that he was interested in the co ents made regarding a license. If a license needs to be purchased, Mr. Co will need to take care of that. However, the land use question needs to be esolved independent of whether or not Mr. Combs is licensed to do- busin S. The land use question is simple. Was .the property in question in w 'stence in a commercial way in 1981 which is when the zoning laws went into effect in this township? If it did, then there is a factual basis for rezor, the property to EC-5. That factual basis -would be that there was an e or in the zoning atlas. The error comes about because the intention of a County when the zoning laws were put into effect was to locate all of he commercial- operations that existed and to classify them EC-5 or some o or commercial classification. Commissioner Gordon asked that item be referred-to the County Attorney and then to the Planning Board fo a recommendation, so that the Planning Board would have the attorney's in t. Mr. Gledhill indicated that he would put his comments in writing and fo rd them to the Planning Board. The Planning Board needs to decide if the believe that this commercial operation was located at its present loca 'on and to what extent it was operating in 1981., Commissioner Insko asked for clari ication as to what the Planning Board would mean if they recommended EC-5. ould they be recommending EC-5 as it existed in 1981 or as it exists Carr tly. If it was zoned EC-5 in 1981, would the buildings have been permitt ? Mr. Gledhill stated that if the buildings were a permitted use, they would have been approved for construction. If the use was a special use, an Mr. Combs would have needed a Special Use Permit. Mr. Gledhill indicated that the P1 ing Board's recommendation for EC-5 zoning will indicate whether ' or not the lot which is in question occupied that zoning lot in 1981. A motion was made . by Commis oner Halkiotis, seconded by Commissioner Insko, to refer this item to Planning Board to be returned to the Board-of Commissioners no sooner th October 5, 1992. VOTE: UNANINWS $s - - ase The following. people were sworn in by Hev y Blythe, Clerk to the Board: Roch Will, Bill Selvidge, Linda'Powers, Span a Dickinson, Jenny Shafer, John Hartley, Dave Laudicina and Eddie Kirk. This iteaLwas presented by Eddie k in order to receive citizen . comment on a proposed modification for an a itionai phase to the Heartwood Mountain Planned Development. The appl t is requesting a Planned r 0�. I 20 be much better than other types of development that could be placed in the area and he felt the numbers indicated they were close to what the Rural Character Committee was seeking. Waddell stated that he understood Collins to say that they would utilize options to change the density calculations for density bonuses. Waddell continued that he felt pulled in different directions but he did feel that the developer is attempting to meet the spirit of what we have said. VOTE: 7 in favor. 3 opposed (Burklin - for reasons already stated and felt that this was preceding ahead of the guidelines and will be done outside of the guidelines - we are losing the chance to use this as a showcase. Hoecke - supportive of Burklin's remarks - too much too soon - experi.mentation is fine but you can't turn back if it doesn't work - it is not our responsibility to support corporations just because they feel they have a right to spend money - it is their risk, not our problem. Our problem is the character of the countryside and economic development at a pace that won't overload things. Jobsis- supportive of previous statements but also felt that this should not been done before looking at alternative development that might stay with what is already existing in that area. b. Zoning Atlas Amendment (1) Z-3-92 Donald Wayne Combs Adopted Minutes (The complete abstract information and Orange County attachments are attachments to these minutes Planning Board on pa September 21, 1992 pages �OJr • ) Presentation by Jim Hinkley. The proposed zoning lot is located 597.22' to the west of Ferguson Road (SR 1948) . The lot measures 200.45 ' x 4001 , containing 80,180 sq. ft. or 1.84 acres. It is situated entirely on the property of Brenda Carol and Donald Wayne Combs (6.37B. .6A) at 1300 Ferguson Road and Combs Drive. The proposed zoning designation. is EC-5 Existing Commercial S. The part of the combs property t 21 affected by the atlas change proposal is currently zoned RB Rural Buffer. The request has been made to correct an apparent error in the Zoning Atlas . The requested rezoning was initiated as a means of resolving a zoning violation involving the illegal operation of motor vehicle salvage and repair business and the storage of junked motor vehicles. The applicant alleges the rezoning will correct an error in the Zoning Ordinance, in that the property was used for the storage of junked motor vehicles prior to the zoning of Bingham Township in 1981. Planning Staff has been unable to substantiate the applicant's claims through the examination of aerial photos. A complete enforcement history titled Chronology of Events is an attachment to these minutes on pages _(p(o.&o' . Surrounding properties are subdivided for residential development and zoned RB/ULW Rural Buffer-University Lake Watershed to the east toward Ferguson Road and AR Agricultural Residential to the west. Current predominant existing land uses include forest and residential to the north, east and south, and forest to the west. An estimated forty citizens interested in this matter attended the public hearing and twelve testified in favor. Two questioned the rezoning. There was not strong argument against the requested rezoning. The testimony for the rezoning can be categorized into three areas which: 1. Expressed the value of and need for the service Combs provides to the State Highway Patrol and the County in general; 2. Provided statements that automobiles were being stored on the property on the effective date of the Zoning Ordinance; and 3. Attested to the character of Mr. Combs. The testimony against the rezoning can be categorized into two areas: 1. Mr. Combs did not live on or own the property until 1983. 2. Mr. Combs has expanded his business 21J i 1 substantially over the past three years. The application has been reviewed by the Planning Staff. Following are the most critical findings in the case: 1. It has been found that there was no zoning error made with respect to this property when zoning was adopted for Bingham Township on September 2, 1981. 1979 and 1982 aerial photographs show no commercial auto repair establishment or any storage of junked motor vehicles on the property. The photographs show a baseball or softball diamond and concession stand on the premises. Four commercial establishments in Bingham Township were identified and zoned EC-5 when the ordinance was adopted. Other commercial properties were not zoned and their uses were designated• as non- conforming. 2. The Combs purchases lot 6A on August 29, 1983 and lot 6 on January 22, 1991. Current commercial and outside storage land uses on these properties are in violation of Section 4.3 Permitted Uses of the Zoning Ordinance. 3. If the property had been used for the storage of junked motor vehicles on the effective date of the Zoning Ordinance, the use of the property today would be in violation of Section 11.8 Non-Conforming Uses of Land Without Structures or With Minor Structures of the Zoning Ordinance which states: "Non-conforming uses of land not involving any permanent structure with a replacement cost of $2,000 or combination of permanent structures with a replacement cost exceeding $5,000 as determined by the Zoning Officer shall cease within two years of the adoption of this ordinance, or any amendment which shall cause such uses to assume non- conforming status. " There was only one structure on the property when the ordinance was adopted - Ff a concession stand used in association �- with the then existing ball diamond. • f 23 This building has since been removed, and the area where the ball diamond and concession stand once stood, as late as 1982, now has a three-bay garage on it (built in 1990) and is now being used to store junked motor vehicles. 4 . If the property had been used for storage of junked motor vehicles on the effective date of the zoning ordinance, any building of structures for commercial use would be illegal as established in the provisions of Section 11.44 Intent Concerning Non-conforming Uses : Specifically Declared To Be Incompatible With Permitted Uses, which states : "It is the intent of this ordinance that non-conforming uses shall be considered to be incompatible with the Permitted Uses within the districts. Such non- conforming uses shall not be enlarged or extended in any respect. " A commercial operation was begun since adoption of zoning for the area, and it has expanded substantially over the past three-year period. 5. On March 22, 1990, Mr. Combs received a building permit to construct a "Building, 45' x 321 , 1-story building. Will be used to store owner's own -cars. " The building permit application was signed by Mr. Combs. A garage for the storage of one's person vehicles is a permitted use in the RB Rural Buffer zoning district. After the customary inspections, a Certificate of Occupancy was issued on May 15, 1990. 6. On October 25, 1991, a complaint was received from a neighbor that Mr. Combs was operating an automotive repair and junked vehicle salvage business on the premises. 7. On October 31, 1991, the Combs were cited for the use violation after it was found that the three-bay garage, with a lift, electronic testing equipment, and other heavy motor vehicle maintenance and repair equipment, is being used for the commercial purposes of parts recovery and repairing. -There were four people 24 73 observed working on motor vehicles in the garage. It appears that the building was never intended to be used for the sole purpose of storing personal vehicles. Also found on the premises was systematic outside storage of some 350+ junked motor vehicles. No zoning lot size for EC-5 can be recommended because there was no detectable existing commercial use or outside storage use on the property when zoning was adopted for Bingham Township. No non-conforming status for the commercial establishment and outside storage use can be recommended because the use of the property was recreational. A ball diamond and concession stand were in existence before, at the time of, and well after the adoption of zoning for Bingham Township. Provided that the Planning Board finds in the negative, the Planning Staff recommends that the Planning Board recommend to the Board of County Commissioners the disapproval of the request to rezone a portion of the Combs property ( 1.84 acres as described) from RB Rural Buffer to EC-5 Existing Commercial 5. Gray asked if there was any doubt of the location of the property in 1979 and 1980 according to tax maps. Hinkley responded there was no doubt and overlays had been provided by Land Records and the information matches with the tax maps. Scott asked whether the question is that of a commercial building, or, that of determining if there were junked cars on the property in 1981 when zoning was adopted. Hinkley responded that the issue is was there a commercial operation establishment at the time of the ordinance. Reid asked what classified it as a business establishment, because there were people who had testified that there were junked cars on the property prior to zoning. Hinkley responded that he felt the burden of proof rests with the applicant. He continued that the staff could find no evidence of junked automobiles on the property prior to the passing of the ordinance. 074 25 Hoecke asked if we disbelieve those people who say there were. Hinkley responded that the Board would have to decide that. He could only give the evidence. Scott stated that he could not accept Hinkley's evidence because he could not see anything that Hinkley pointed out on the aerial photos. Hoecke stated that he had seen many aerial photographs and that those presented were junk. Hinkley responded that he could provide the originals since they were provided by the ASCS office. Hoecke noted again they were very poor evidence. Reid stated that he was not arguing with the photographs but that his point was if there were junked cars on the property prior to 1981, was it a business? Hinkley responded that, according to the Zoning Ordinance, if there was no building on the site on the effective date of the ordinance, then within two years the use of the property would have to conform to the list of permitted uses for the zoning district. Reid noted that he did not feel a building was needed to assure that a "junkyard" was in operation. Other Board members 'expressed the same concern of whether a building was what determined whether or not a commercial operation was in place. Scott expressed concern that it was not being made clear what the Planning Board was to make a decision on, whether a junkyard was in operation in 1981 or whether the building constructed in 1991 was the issue. Hinkley responded that the building constructed in 1991 was a garage built to store Mr. Combs' personal automobiles. It has since become a commercial operation. He noted again that there was no building on the site in 1981. Scott asked if there were junked cars stored under the trees on the lot in 1979, would Mr. Combs be granted the EC-5 designation. Hinkley responded that he would not. Scott asked why. Hinkley responded because there was no structure on the parcel of land on the date of adoption of the ordinance. Scott responded that was what the' Board was trying to establish, was the deciding factor the lack of a building and Reid stated he had the same question as Scott. Scott continued that he was not sure that a building was needed to operate a business such as a junkyard. a Hoecke agreed with Scott. Reid stated that the prior owner did not have • storage building on the site because he had • garage at another location and the lot in question was just simply a place to store the junked vehicles. Cantrell noted that perhaps Scearbo could help clarify this situation. Scearbo indicated she wished to respond to comments made about the aerial photographs. She continued that if you look at the affidavits and make the assumption that they are true, and that there are cars there somewhere, then they would be some place other than within the ballfield. The two black and white aerials clearly show the_ ballfield, and there are no cars stored there. If there are vehicles in there somewhere that we cannot see in those photographs, then they would be somewhere in the perimeter. If that was the case when zoning went into effect, if we had known that the junked vehicles were out there, then, the EC-5 district could have been applied in some way around the edge of that ballfield taking up the area where the vehicles actually were. The EC-5 district would probably not have been applied to the extent that the expansion has occurred. I think it is clear from the recent photographs that something very significant happened in the interim from 1981 to the present. It is very clear that it has expanded and is now operating in an area within which it was clearly not operating in 1981. Scearbo noted again that, if there were junked vehicles stored among the trees that did not show on the earlier photographs, that would have been the only area that would or could have been zoned EC-5. What we are looking at now, is, if there was something that should have been zoned EC-5 at that time, then that is what the Board needs to deal with. What they've got there now does not match up. Waddell asked if this had been known, if an EC-5 district had been carved out around the 50 or 100 cars in the edge of the woods around the ball field and we were here today where he had expanded the operation into what was not an EC-5, would we be faced with the 076 27 same request today or should that use have gone away years ago. Scearbo responded that there would have been choices. Rather than rezoning to EC-5, the County could have considered the use it non-conforming which is what Hinkley was alluding to. A non- conforming use with no structures must cease within two years. At the time that Bingham Township was zoned there were some properties for which a specific decision was made not to zone it EC-5 but to consider it non- conforming. The other option would be to zone it EC-5 which was used more often. If it were zoned EC-5, the next day after zoning was adopted the cars could have been removed and the business ceased but that EC-5 zoning district would have remained and the property could have been used for any of the uses allowed in an EC-5 district. The use could have also been expanded but only within the boundaries of the zoning district. Since neither one of those things happened, we are faced with going back and looking at what would have been the appropriate thing to do. Burklin asked if it had been zoned EC-5 and ten years later they decided to build a garage, would it have been allowed. Scearbo responded, yes, within the boundaries of the EC-5 district. Scearbo also noted that EC-5 is not a district that you can rezone to expand. An EC-5 district is designed to catch the use as it existed at the time that zoning was put in place. Scott asked what recourse did Mr. Combs have to continue his business. Hinkley responded that Mr. Combs was offered the recourse of applying for a Home Occupation Permit and he did apply. Hinkley continued that a Home Occupation Permit for a parcel of six acres would allow for 2000 sq. ft. of floor space and at the present time he has about 1600 sq. ft. of floor space in the garage. So, he could add 400 more sq. ft. if this were approved. But, it would be very difficult for him when it comes to outside storage because outside storage is limited to 1000 sq. ft. Scott expressed concern that it had been undetected for such a long period of time and now, possibly having the door slammed on his business. Scott continued that the way he understood the complaint at the public hearing was that there was not 2M 7 such concern about the business being there, but, that the expansion had caused some trees _' to be cut down. Waddell noted that there was another citizen who had stated that because of zoning laws, he had not expanded his business and he felt he was suffering by obeying the law. Hinkley noted that there are three or four comparable cases at this time and whatever decision the Board makes is precedent setting. Three of those uses are expanding considerably at this time. Scott noted that there was also testimony from several people.. at the public hearing that there is a real need for yards such as this. Gray asked if Hinkley was reasonably sure that the Planning Department's investigation is completely accurate from 1979 and that to the best of your knowledge that from what you have been able to find out there were no vehicles stored there, not withstanding what other people say, human nature being what it is. Hinkley responded that there were five affidavits that state there were cars stored there but did not say there was a commercial business. Reid noted that was the "catch" . Hinkley continued that when the parcel of land was bought in 1983 there was no commercial business there. The principle use was recreational purposes. Cantrell asked the County Attorney to speak to the issue. Geoffrey Gledhill, County Attorney made the following comments: There are two ideas I have that may not help you but will add to the discussion. One of those ideas is that there is only one basis in the Zoning Ordinance to rezone this property EC-5. The fact that there may be a need for this kind of operation does not have anything to do with your discussion tonight, because in the Comprehensive Plan there's no activity node in this area; so, it doesn't 078 29 matter that there is a need. It may cry out for an activity node, but, in the absence of an activity node, the way the County's zoning system is structured you can't have a commercial use there unless the commercial use is zoned EC-5. That's the only category of commercial zoning in Orange County scheme of things that can be located outside of an activity node. The EC-5 district was created in 1979 when the Zoning Ordinance was adopted to recognize certain commercial uses that were outside of activity nodes and to recognize them as being existing at the time the ordinance was adopted and to allow them to be in existence conforming which means that they could be expanded; the use could, you could add buildings, you could do whatever you wanted to do within the permitted use table within the existing commercial zone. Waddell asked you say expanded within - Gledhill responded within that zoning district. $o if an EC-5 district were created, within that district and within the r' other constraints that the Zoning Ordinance has for all of its zoning districts you could j add buildings, you could add stories to buildings, you could change uses. You could have an automobile repair business today and you could have another one of the permitted uses in the permitted use table the next in that zoning district. This special designation was created so that these existing businesses, typically small convenience stores, mom and pop stores, small automobile repair businesses out in the county, out in the country could remain and not have to worry about battling constantly the non-conforming use problem which is that you can't expand and if you stop doing business for some reasonably short period of time, you can't come back and do business again; all those pitfalls that people are not aware of typically when non-conforming status wouldn't apply. Having said that, the genesis and the origin of this EC-5 district, let me say then that the only basis in the- County zoning scheme of things for this property to be zoned EC-5 is, if you find that if this use had been known by Orange County in 1981, it would have been at that time zoned EC-5. The second inquiry you have to make, assuming that you conclude that it would have been zoned EC-5 then, is what would have been the zoning lot. You have to put yourselves in the minds of the people who were doing this in 1981"and decide what kind of zoning lot they would, have created for this use. Probably they would have included the area where the cars were. How much additional area would they have included. You have to frankly guess, because there is no evidence about that. I think you can assume that it would be at least 40,000 sq. ft. lot because that's probably the smallest one of these that we have. It could be greater than that but you really have to kind of a mind reader and put yourself back at that time and figure out what they would have done then. If you can do that,- then you can rezone this property to EC-5 to correct an error in the 1981 Zoning Atlas. gray asked is not one o4,.the key words in ,this whole issue the woAd commercial. You may have had stories of automobiles because a man stored cars upon a piece of property. But storage of automobiles is not necessarily a commercial operation, am I not correct? Gledhill responded that if it is the man's own collection of wrecked vehicles then it is- not a commercial use. Gray responded that everything from the public hearing indicates that he did store vehicles out there. Gledhill stated that you would have to determine that in 1981, storage of vehicles and whatever else was done to these vehicles was done for commercial purpose. That is "something else you would have to determine. Hoecke noted that the affidavits stated the man worked on cars at his home on Mt. Carmel Church Road and needed a place to store parts and cars and that's why they wound up over there. That is repeated over and over Be worked on cars elsewhere and needed a place to store the cars and did on this property. Reid stated because his Mom and Dad owned it. Reid continued that he knew that there were junked cars on the property, in 1979. Be stated that Kenny Martin and Wayne Combs actually built hotrod cars and this was the place where they worked en them, but, there was no building. is Gledhill asked to make a statement about the osn 31 building issue. In my opinion, the only issue about which a building is relevant is the non-conforming use issue. You do not have to find, in my view, the existence of a building or the use of a building on this property in 1981 to change the zoning to EC- 5. A commercial operation can be without a structure. The structure and the building question is only relevant in whether or not this property would be eligible for non- conforming use status . Since there was no building there, it lost whatever opportunity that it had for non-conforming use status after two years because of the way the Zoning Ordinance is written. But, the existence of a building is immaterial to the decision whether to change the zoning from AR to EC-5 . Hinkley noted that were two mobile structures indicated on the map in 1987. and three mobile structures in 1991 plus the garage that had just been built. Scott asked if the aerial photos are being used because there are cars in the area today that did not appear on the earlier photos. Hinkley responded that the reason the aerial photos are being used is because they are the only technical evidence we have of the past. We reviewed the minutes of the Planning Board and County Commissioners at that time and there was no reference to the property at all. Jobsis stated that she felt a case could be made that there were some cars there and some business operation going on even if the cars were just being stored for parts. It sounds like such a small area that if we stick to the guidelines that you have outlined we would have to make this so small that the man could not even operate his business as he is operating it now. If we decide in his favor, we would have to decide on such a small amount of area. Cantrell stated that the Board would have to decide how much area would have been given to designate at that time. Waddell said that first the Board has to _= decide whether the folks elevbn years ago would have decided that it is such a minor business that it 'should not be zoned EC-5 but allow to die out. Reid asked would the county have been at liberty to ask the property owner at that time whether or not they wanted it zoned EC-5 or whether or not they wanted it non- conforming. Waddell stated he was sure the question would have come up and the property owner could have presented testimony to the Board of Commissioners. Gledhill stated that in some instances that is how some of the EC- 5 districts came about. The County staff did a survey and then that survey was supplemented by people calling in to ask if they were on the list. I took some time today to research my old files of when this all happened and it's amazing how little was said about this so I had to rely solely on my recollection but I can tell you that is what was done, there was some supplementing by telephone calls. Later on during the process some other uses were brought to the attention of the County. Reid noted that the parents would have been contacted since they were the owners at that time. Gledhill continued that obviously either these folks did not know about the process or did know about it and just ignored it. Waddell commented they didn't think it was consequential. Hamilton indicated she felt it was a weekend or night working which they didn't consider a business. Scott stated that he felt the time period speaks for itself and they were definitely overlooked. They have been operating for years and nobody has said anvthing,.up to this point. Hinkley stated that the operation began to expand about three years ago. Mr. Combs had a service station in Chapel Hill where he did the work and stored the cars on this property. He specializes in Chrysler products of the vintage of the late 50's and early 601s. He apparently supplies parts for people all over the southeast. Reid said I am not convinced that we would be wrong in acting in his favor for a spot. I'm not disagreeing with the fact that he has definitely outgrown what would have been as I remember what would have been the area for a business that Kenny Martin had. I have not been out there since Combs had it, but, when I was out there and Kenny Martin was there, it was just a junkyard. If that is the case ' n I 33 that would bring him back into line, one area r z in here could have been zoned EC-5 because of those cars stored there, then in my opinion, that is what needs to happen for that particular area. Gray said but only that particular area where he had the cars at the time can be legally zoned EC-5 . Gledhill responded or the area that would have been designated by the Planning Staff at the time which would have probably have included some regularly shaped lot which included that. I think that is a reasonable assumption. I do not recall any L-shaped zoning lots created through this process. . So it would have created some regularly shaped lot to include those cars. Eidenier asked if that lot would have had to been contiguous with property boundaries. Scearbo responded that there are quite a few EC-5 districts that are not. The zoning lot itself establishes the boundaries. Hinkley noted that if Mr. Combs closes down next week there are 43 more uses that could be permitted. He noted that some of those might not be as acceptable as a junkyard and reminded- the Board that they should look at that list of uses. The lot would not be rezoned for just this particular use but for any of those uses permitted in EC-5 including outside storage of vehicles. Hinkley proceeded to read the list of uses. Waddell asked Gledhill if it was his recollection that back in 1981 pretty much =•3 any area that was requesting an EC-5 got it or did they do a lot of selection. Gledhill responded that there were some commercial uses for reasons that I can no longer recall were not zoned EC-5 . The vast majority of them were zoned EC-5. I don't remember which ones were not zoned EC-5 but left as non- conforming. Cantrell stated that she remembered it was a long meticulous process and Gledhill agreed noting that those EC-5 zones were all hand =; picked. MOTION: Waddell stated that he found that there was not, repeat not, a commercial enterprise on this property in 1981. Therefore, he moved that the Planning Board turn down the 3"�`3 for EC-5 zoning designation. Seconded by Gray. _ VOTE: 4 in favor. 6 opposed. MOTION: Reid stated that he did find that there was a a business establishment in 1981 on this property and moved that the request be granted. However, he did have a problem with where this needs to be. Eidenier noted that the area proposed to be rezoned is 1.84 acres. Hoecke said how about we base it on what people agree was the approximate number of cars at the time and start from that. Gledhill stated that 40,000 sq. ft. was the minimum EC-5 district established. Scott asked Reid if the cars were around the ball field because the ball field was also being used at that time. Reid responded that is exactly how it was and asked if Scott was familiar with the term "shade tree mechanic" . More discussion followed trying to determine the exact location of the ballfield. Burklin stated that one recommendation could be to have the aerial photos and the tax maps reconciled so that the location of the ballfield- could be seen better, and a second, to try to get the affidavits more clear about how many cars were there and maybe some more information about the extent of commercial activity. Cantrell responded noted that you were talking about fifteen years ago. Burklin continued that you could get more information versus sketching of the map and we don't have the boundaries on the aerial photographs. It is possible they could provide more information about where those cars were stored. Cantrell responded that Reid had given information as he remembered the location of the cars. :Reid noted that the question would still come back that if we are going to give him anything out there it doesn't make any sense to do less than an acre. I will clearly tell you that at that time there was not an acre of cars stored out there. At my best count there were 25 to 30 OS4 35 cars. 7 Scearbo stated that id- the terms of a specific placement of -an acre or 40,000 sq. ft. there was a previous case where there was a 200' x 200' zoning that was for some reason misplaced on the atlas and that was a case where it was rezoned to keep the same land area to match up with the activity. Hinkley stated that he had researched to see if there was a business listed and, according to Orange County Tax Office, Mr. Combs had not listed the .business or the tools or equipment and now they are investigating that. Mr. Combs also does not have a dealers license. Cantrell noted that this is not the question before the Planning Board. Reid stated that what he remembered was Kenny Martin's parents property which has changed configuration because of the purchase', of additional property. There was discussion that at one time the property was a partnership between Combs and Martin. Jobsis asked for clarification of the EC-5 rezoning that Scearbo had mentioned. Scearbo noted that it was changed not to- increase the size of the lot but to change the shape of it to better fit the activity that was actually there. Jobsis asked then if that would be reasonable, if 40,000 sq. ft would be the recommendation, that it be superimposed over where the business activity actually is. Scearbo responded that she felt that is probably reasonable. I do not want to make a specific recommendation. But, the point is, that if 40,000 sq. ft area would have been zoned, then it would seem reasonable to assume that the area be worked out with the location of the business. Gledhill stated that he felt the Board should try to put the EC-5 designation where it would have been in 1981. Reid restated his finding that there was a business in 1981 and had it been known that ' Planning Staff would have recommended an EC-5 s designation at that time. It was also his finding that the area would have been a minimum of 40,000 sq. ft. and indicated the area on the map he felt it should .include. The area was blocked off on the map by Board members. The position that was blocked off was the east half of the property being requested. MOTION: With these findings, he moved that an EC-5 designation be granted. Seconded by Hoecke. Waddell stated that there was no evidence that there was a business; moreover we have no filings of any type to indicate that this person intended at any time to pay property tax on the car storage area or operating as a business. I suspect, but cannot prove, that it was, the intent of the owners at that time not to ask for an EC-5 designation because they did not want to pay additional taxes. Hoecke stated he disagreed with calling it no evidence. There is evidence in at least one affidavit by Herbert Arrington which says he needed a place to store cars and was planning to build a car repair shop there. I do not think it is a question of no evidence. Hamilton stated that the Planning Board did not have to deal with the questions regarding- taxes. VOTE: 7 in favor. 3 opposed (Waddell - reasons already stated; Gray - agreed with Waddell; Burklin - had seen evidence that cars were on the site, but .would like to see more evidence 'and more directed questions than affidavits when the others were brought to the Board for Proof of business taking place on the site. ) Adjournment time was reached. MOTION: Gray moved to extend the meeting for discussion of Public/Private Roads. Seconded by Reid. VOTE: unanimous. AGENDA ITEM #10: PLANNING BOARD ITEMS r° a. Discussion of Public/Private Roads Issues 7 Gray referred to a report by the County Attorney ti- included in minutes of the Planning Board Meeting t 0 cJ 6 Adopted Minutes of the Orange County Board of Commissioners October 5, 1992 5 of the property and that the density would need to be increased to make it workable from a financial standpoint. They also took into account the discussion of the transit corridors. They focused on the need for high density developments because the higher density would help support the transit system. The density of 1.74 is much lower than any kind of density required to support a transit system. The village itself may have the density that can support a system but when spread out over the entire development it would not. Commissioner Insko asked for a fiscal impact analysis on the tax base that a development like this would have. Motion was made by Commissioner Willhoit, seconded by Commissioner Halkiotis to adjourn this item to November 23 , 1992 for the purpose of receiving additional public comments and additional information. The transition area change portion of the public -hearing will be advertised. VOTE: UNANIMOUS 10 D. Z-3-92 ZONING ATLAS AMENDMENT - BRENDA CAROL AND DONALD WAYNE COMBS This rezoning request is being made to correct an apparent error in the Zoning Atlas. The applicant alleges the rezoning will correct an error in the Zoning Ordinance, in that the property was used for the storage of junked motor vehicles prior to the zoning of Bingham Township in 1981. Planning Staff has been unable to substantiate the applicant's claims through the examination of aerial photos. The Planning Staff recommended to the Planning Board that they recommend to the Board of Commissioners the disapproval of the request to rezone 1.84 acres. The Planning _ Board recommends that the 200' x 200' lot be rezoned to Existing Commercial (EC-5) . The day following the Planning Board meeting, they received a letter from a person unable to attend the public hearing. The administration feels that the substance of this letter is enough to recommend to the Board of Commissioners that the Combs rezoning request be referred back to the Planning Board for them to consider the new information that has been received. Bart Lloyd, Jr. , stated that four of the five who own property directly adjacent to the Combs' property have signed a petition which states their opposition to the rezoning. They petition the Board of Commissioners to uphold the Planning Staff findings and recommendation. They feel that the absence of automobiles in the photographs taken in 1981 and 1982 is sufficient evidence to repute claims that the property was used for commercial activity. He questioned the use of a garage on the property and the use of paid labor. Linda R. Noonan stated that she sees no reason for granting the rezoning. The area that•is proposed for rezoning is not directly adjacent to her land. However, the land that has been cleared of topsoil and trees•' is directly adjacent to her land. It. was suggested to Mr. Combs that he could not store automobiles there and that he needed to replant that area. As of today, there are automobiles on that area and no vegetation. There are cars stored in an area on this property that is not considered for rezoning. Motion was made by Commissioner Insko, seconded by Chair Carey to refer this rezoning request back to the Planning Board to consider new information received, and that the public hearing be continued to November 2, 1992, at which time a Planning Board recommendation will be considered. VOTE ON THE MOTION: UNANIMOUS Adopted Minutes ( 1) Z-3-92 Brenda Carol & Donald Wayne Combs Orange Co. Planning Board October 19, 1992 Presentation by Jim Hinkley. A copy of the abstract information is an attachment to these minutes on pages This includes the Planning Board's findings and recommendations from their September 21, 1992 meeting to the Board of Commissioners, 'Administration's Recommendation, Board of Commissioners' Action, Planning Staff findings, Planning Staff recommendation, and chronology of events. Hinkley reviewed and summarized the information and distributed information that had been received since the agenda was distributed. He noted that, after this point, no new information could be considered unless the Board of Commissioners decided to. reopen or continue the public hearing. Hinkley presented infra-red aerial photographs dated 1983 which he felt gave a better view of the property and indicated the location of a building. He did note that automobiles not running are not heated and probably would not appear on the photos. He continued that vehicles that were out in the open did show somewhat on the infra-red photos. Chair Cantrell asked that Board member Reid speak to this issue at this time since he needed to leave this meeting to attend a meeting of the Solid Waste Committee to make a report. Reid stated that the question that came to him at the Planning Board meeting on September 21, 1992, was whether or not there were vehicles in the area prior to 1981. He stated again, as he had in the previous meeting, that he came to the area at that time and had work done on his vehicle by Kenny Martin at the location in question and there were vehicles in the area. Reid noted that he had asked what constitutes commercial or a business being there and he stated that he felt Mr. Martin used it as a business because it was a parts area. The actual garage was on Mt. Carmel Church Road but the parts for repair came from the area in question. He continued that the question arose at that point as to whether or not a building was on the site and that a building would be what would constitute a commercial business. 0SS 11 Cantrell asked if Reid was prepared to stay with the findings that he made at the previous Planning Board meeting and the response was that he certainly was. x. �• Burklin asked Reid about the number of vehicles on the site at the time he was there and where they were located. Reid responded that he did not know the location of the vehicles and in review of the previous meeting minutes it was noted that he had stated there were 25 to 30 cars at the site. Cantrell noted that this figure was in line with that stated by Dr. Noonan in her letter. Eidenier noted that she did not feel any of the additional information and affidavits have substantially changed anything that the Board discussed at length at the last meeting. Gray noted that some of the letters did not address the question before the Board, but, rather, were character references for Mr. Combs. Jobsis agreed that the new documents did not change the issues the Board had voted on previously. Hoecke stated that he felt the evidence would always be mixed in such an issue, but, that he felt that the evidence weighed in favor of there having been a business on the site prior to 1981. He continued that the photographic evidence was "soft" at best. Gray stated that he felt some of the evidence did indicate that there were vehicles stored there, but he did not feel that there had been any substantial evidence to show that at the time the ordinance was passed there was an "existing commercial operation there" . Cantrell stated that she felt there had been evidence but the question is whether or not it is persuasive. Waddell stated that he would .agree with that view. While there was evidence that the cars existed on the lot, it was still questionable whether or not it was a commercial business. He felt it was the task of the Planning Board to go back to that date and determine if the question had come up at that time, would the Planning o!�) Board have called it a commercial business. With no tax records of a commercial enterprise, he felt it was more just a collection of cars by an individual used from- time to time. Hoecke stated that he did have a business elsewhere and he was using this area as a source for parts. Waddell responded that this did not persuade him that it was a commercial use. Hamilton stated that the real business was conducted from another site. Waddell noted that this business was not inventoried and he was not convinced that it was a commercial operation. i Hoecke noted that he felt it was a commercial operation as a source for parts. Waddell stated that he was trying to view this as it would have been considered when zoning went into effect. Jobsis responded that the Board did consider that issue at the previous meeting and decided that there were parts stored there and she felt it was not reasonable to go back over the same vote. Cantrell noted that in trying to recall how the issues were dealt with in the inventory and drafting the ordinance that the Board of Commissioners were the ones who made the decisions and not the Planning Board. Four citizens whose petition was included in the agenda materials were present and asked to speak to the issue: Barton Lloyd, Gary Zadjeika, = Randall Whitehead, Linda Noonan. Mr. Lloyd noted that they were in attendance at the last two Board of Commissioners meetings even though they were not at the September 21, 1992 Planning Board meeting. He wished to clarify that at least four adjoining property owners are in opposition to the proposed zoning of Mr. Combs property to EC-5. Be continued that they felt very strongly that it is not an appropriate place for an EC-5 designation and that there is no justification for it. He continued that he felt the evidence was vague and indicated only that some cars were stored under the trees. He referred to the minutes from the previous Planning Board meeting noting that Mr. Reid had stated cars were stored on the property in 1979. 090 13 He noted that zoning was in place in 1: 81 and he felt this was a very significant two years. He referred to the aerial photographs noting that he felt it was obvious that there were some cars under the trees but, that, he didn't feel there was a significant number of cars stored there to signify a commercial operation. He continued that he felt none of the evidence stipulated the location of the cars except the letter signed by Mr. Arrington which stated that the cars were in the middle of the field and this was not the case. Cantrell responded that her reading of Mr. Arrington's letter was that he stated the cars were in the middle part of the property and that did not necessarily mean in the middle of the field. The middle of the property could very well be under the tree canopy. Cantrell stated that with the number of pages of minutes from the previous meeting, it was evident that the Planning Board had wrestled with this issue for a long period and it is a burden of persuasion. She noted that there were times when the Board was not in agreement on issues but the work must continue. Mr. Lloyd stated that he had read in the news ! about a subdivision where the Planning Board had made a recommendation to the Board of Commissioners which did not conform to the ordinance. Cantrell responded that was not the issue on the table at this time. Mr. Lloyd continued that there were four, and perhaps five citizens who would be paying very close attention to the Planning Board's recommendation and that they will be present at the Board of Commissioners meeting and will speak to the miscarriage of jurisdiction, if not justice, that they felt was occurring. Eidenier referred to the Administration's recommendation and the implications to be considered: a. Due to the history of the expansion, frequent monitoring will be required to assure compliance; and b. The action on this rezoning will set a precedent for a number of similar situations - -, in Orange County. She asked Hinkley if Mr. Combs had removed some cars from the property. Hinkley responded that 250 cars had been crushed on the site and removed. Eidenier continued asking if Mr. Combs had been a belligerent citizen and difficult to - deal with. Hinkley responded no, that Mr. Combs -y had been a gentleman and easy to deal with. Eidenier asked then if Hinkley felt frequent monitoring would require that a Deputy accompany him to the site. Hinkley responded that would not be necessary in monitoring the Combs case. Mr. Zadjeika stated that a question of compliance had been raised and that there is an issue of compliance that is not being met at the present time. Cantrell responded that is not what is before the Board. What is before the Board is an EC-5 zoning and that is all the Board can address. The only information that can be considered now is information that was not available at the original public hearing. Ms. Noonan referred to the cars that Hinkley had indicated had been removed from the back lot. She noted that automobiles were still there. Cantrell responded that that was an issue of compliance and is not what the Board is dealing with at this time. Eidenier noted that the Board of Commissioners had suggested that the Planning Board look at compliance. Ms. Noonan presented photographs of automobiles on the site noting that they were not located in the area being requested for the EC-5 zoning. Hinkley stated that he had given Mr. Combs permission to move the cars onto the back lot until the crusher could be placed there to crush and remove the cars. Mr. Combs stated that he is awaiting the decision of the Planning Board. The car crusher is available to remove all or part of the cars once Mr. Combs receives a decision from the Board of County Commissioners on the rezoning. Ms. Noonan continued expressing concern that the number of cars on the site seemed to be increasing. Mr. Combs stated that, if the decision is made by the Board of Commissioners that the cars are to be removed, he has arranged with a car crusher to crush and remove them. Mr. Lloyd stated that the photographs being viewed by the Board were taken. by him this morning. Mr. Combs responded that Mr. Lloyd had to climb a twelve foot pile of dirt with trees growing on the top and go onto the Combs property in order to take the photographs. Mr. Combs indicated Mr. 092 15 Lloyd could not stand on his own property and see the cars. Mr. Zadjeika spoke again regarding the lack of tax records for the business operation. Cantrell responded that this was just more argument and not new evidence. Burklin asked Hinkley if storage associated with the commercial operation on another site was considered a commercial extension of that business. Hinkley responded that if the property is zoned commercial, a use considered to be part of the commercial establishment, such as storage of automobiles, is allowed. If it is zoned residential, it is not allowed. Burklin . continued asking if legally it would be apart of the business at another location. Hinkley responded that yes it would be part of the business activity. MOTION: Eidenier moved that the Planning Board reconfirm its findings of the last Planning Board meeting that in 1981 there was a business on the property and the area which needs to be rezoned is the 200.45 x 200 lot recommended by the Board. Seconded by Hoecke. - VOTE: 6 in favor. 3 opposed (Burklin, Gray and Waddell - - for reasons already stated) . AGENDA ITEM #9: PLANNING BOARD ITEMS a. FY 92-93 BOCC. Goals/Work. Objectives This item is to consider recommended changes to the schedule for completion of the FY 1992-93 Board of Commissioners, (BOCC) goals. When the BOCC considered University Station on October 5, no decision was made. Instead, the BOCC continued the hearing until November 23 and asked that the project be considered along with the rural character strategies. The BOCC also asked that specific impacts of the development be addressed at the hearing; i.e. , schools, traffic, environmental, etc. Because of this action, the November public hearing is shaping up as follows: a. Continuation of University Station, including Adopted Minutes of the Orange County Board of Commissioners November 2, 1992 {��3 6 V. SPECIAL PRESENTATIONS - NONE VI. PIIBLIC HEARINGS A. CONTINUATION OF PIIBLIC HEARING - NOT FOR CITIZEN COMMENTS 1. PD-2-92 HEARTWOOD AT BLACKWOOD STATION/PHASE 3 Planner Mary Willis stated that the applicants are considering revisions to the plans in response to concerns raised at the public hearing held on August 23, 1992 . They have requested that action on the project be delayed until issues regarding the use of Duke Forest property are resolved. Motion was made by Commissioner Insko, seconded by Commissioner Gordon to adjourn this item to the February 23, 1993 quarterly public hearing. If there are significant changes made to the Planned Development, then it will be readvertised for presentation at the public hearing. If significant changes are not proposed the project will be presented to the Planning Board for a recommendation at its January meeting and to the Board of Commissioners on February 23, 1993 for a decision. VOTE: UNANIMOUS VII. REPORTS A. 1991-92 COMPREHENSIVE ANNUAL FINANCIAL REPORT John Link stated that this report covers all financial activity of the County for the fiscal year 1991-92. Presentation of this report fulfills the requirements set forth in G.S. 159-34 of the North Carolina General Statutes. The Board received this report for information only. VIII. ITEMS FOR DECISION - REGULAR AGENDA A. Z-3-92 ZONING ATLAS AMENDMENT - BRENDA CAROL AND DONALD WAYNE COMBS s ,..- The applicants have °requested a rezoning as a means to resolving a zoning violation involving the illegal operation of a motor vehicle salvage and repair business and the storage of junked motor vehicles. Planning Staff has been -unable to substantiate the applicant's claims of a pre-existing business through the examination of aerial photographs. This rezoning was presented at public hearing on August 24, 1992. The Planning Board at its regular meeting on September 21, 1992 found (1) that there was a commercial business on the property on September 2, 1981, the date when zoning was adopted for Bingham Township, (2) that the nature of the existing business was commercial automotive repair and outdoor storage of junked motor vehicles, (3) that if the County had known about the use at the time zoning was adopted, it would have zoned the lot located 597.22' to the west of Ferguson Road measuring 200.35' x 200' and (4) that the commercial operation of automobile repair and salvage has been in continuous operation since the Zoning Ordinance was adopted for Bingham Township on September 1, 1981. Additional information from Dr. Linda R. Noonan was received on September 22, 1991. On October 5, 1992 the County + r 094 7 Commissioners referred the case back to the Planning Board to consider new evidence. At the October 19, 1992 Planning Board meeting, they considered this new evidence. The Planning Board found that the new evidence added no more to that which had been heard before and recommended that the 200.35' x 200' lot be rezoned to EC-5 Existing Commercial. The applicant Wayne Combs stated that when he bought the property, he was told by his attorney that what he planned to do was okay. Barton Lloyd stated that the question is how many cars were stored on this property in 1981 when the Combs' purchased the property. According to aerial photographs there were no cars on this property. If there were cars stored around the ball diamond as indicated then he feels that may justify a rezoning for one-third acre only. He asked the Board of County Commissioners to be very specific in asking Mr. Martin where the cars were on this property in 1981. Kenny Martin spoke in support of this request. - He stated that there were 30 cars stored on this property in 1981 around the ball diamond. Robert Smith, Attorney for Wayne and Brenda Combs, stated that the Planning Staff's opposition is solely based on photographs. There has been testimony from numerous witnesses who have made it very clear that cars have been stored on this property for sometime. He noted that the cars cannot be seen from the road or from other adjoining property owners. He asked the Board to approve this rezoning. Commissioner Halkiotis expressed a concern about contamination. Mr. Combs explained that all fluids are drained from the cars. Commissioner Gordon noted that there is no evidence to show that cars were stored on this property in 1981 and if there were cars stored there it would not necessarily constitute a business. Motion was made by Commissioner Insko, seconded by Commissioner Halkiotis to close the public hearing. VOTE: UNANIMOUS Motion was made by Commissioner Insko, seconded by Chair Carey to approve rezoning to EC-5 Existing Commercial the lot referenced that measures 200.35' x 200' based on the findings of the Planning Board as liited on page 5 of the agenda abstract. VOLE: AYES, 2; NOES, 3 (Commissioners Gordon, Halkiotis and Willhoit) Motion was made by Commissioner Willhoit, seconded by Commissioner Gordon to deny the rezoning request based on the conclusions on page 5 and supported by the eight (8) findings listed on pages 2, 3, and 4 of the agenda abstract. VOTE: AYES, 2; NOES, 3 (Commissioners Halkiotis, Insko and Carey) Motion was made by Commissioner Halkiotis, seconded by Commissioner Insko to reconsider this item based on the findings of the Planning Board. VOTE: AYES, 4; NOES, 1 (Commissioner Gordon) Motion was made by Commissioner Insko, seconded by Commissioner Halkiotis to approve rezoning the lot referenced that measures 200.35' x 200' to EC-5 Existing Commercial based on the findings of the Planning Board as listed on page 5 of the agenda abstract. VOTE: AYES, 3; NOES, 2 (Commissioners Gordon and Willhoit) t r 0 C;7��j All � 09,E J y 76' S,J1 ilJG� cav X0 L�i'vLr�S CLti O�Vo 0, l l�a� �f C� v e 5*6t t r �,4 � 00. 1� a u,` ZI)L4S � lip c��-��►ASS p�' �� e C����5 �`�° /�' � �r c^ IP17q 4a -l�e W-j 0 e v7�1 X3, S cr ;S- ce Zoo,U , ig , ZArl =' ;12 -&T(IZIL Z-4:: 2a IqZL -- __ _ _ _ r----�--- =� . .. . . . . --- .-- �-___.-- -- • - 0� � OJT ID 5 f O mac . Habitat for Humanity range County NC eft;. . October 13.- 1992 PO Box 3673 Chapel Hill NC 27515 Orange County Planning Board 306-F Revere Road Hillsborough, NC 27278 To Whom It May Concern: RE: Public Hearing concerning zoning of property on Ferguson Road owned by Wayne Combs currently used for auto repair and storaoe. While I do not have information concerning the use of this property at the time it was originally zoned in 1981, I can speak to the very careful and protected use made of the property since Wayne has constructed his shop and been operating his repair business there. I have been very impressed with the organized and professional operation he had operated, careful to protect surrounding property owners and street traffic from any unsightly exposure to the autos temporarily stored there. I would also like to add another important note which I feel is significant in the decision being made concerning the appropriateness of Wayne being allowed to continue his repair operation. In my position as Affiliate Coordinator of Habitat for Humanity in this county, I have come in contact with many people who often in silent and unseen ways build and support our community and its members who have special needs. Wayne has been one of those unsung heros. Wayne has assisted those who could not afford critically important auto repairs essential in getting to and keeping their ,jobs. He has also allowed those in such emergency situations to defer payment for repairs on an affordable basis. Such willingness to help those in tough situations is certainly an important sign about the strength and vitality of our community and the need to honor and include such people. Finally, I would like to say that I feel it is very important when considering the restrictions you place on property use to consider that one of your tasks as community leaders it to strive to build an inclusive community which has room for all people, from all backgrounds and all vocations. There must me a place for Wayne who not only believes in the community and gives much back to it, but who also depends upon our community for his livelihood. We the community, I especially for one, have also come to depend upon the excellent professional service that Wayne has provided to those of us who are also dependent upon reliable transportation, regardless of our economic situation. For the reasons I have stated above, I request that you give favorable consideration and recommendation concerning this zoning matter to the County Commissioners. Sincerely, David W. Nichols, Affiliate Coordinator "Building Houses in Partnership with God's People in Need" _ Y L. L. HIDAY. P.A. too ATTORNEYS AT LAW SUITE 206 UNIVERSITY SQUARE EAST 123 WEST FRANKLIN STREET CHAPEL HILL. NORTH CAROLINA 27514 (919) 929-1133 L. I. HIDAY D. DUNCAN MAYSILLES Larch 27, 1984 , Ms. Jane Atwater Orange County Planning Dept. Orange County Courthouse Hillsborough, N.C. 27278 RE: Donald Wayne Combs Dear Ms. Atwater: Enclosed is an affidavit by J. B. Martin, the person who owned the 6.0 acre tract prior to conveying it to Donald Wayne Combs. The purpose of the affidavit is to establish that the current use by Mr. Combs is merely a continuation of a vow confirming use by Mr! Martin originally begun in 1979. We thus request a ruling that the use by Combs is a ..non-conforming use within the meaning of .Article 11 of the•Orange County .Zoning Ordinance-, Very truly yours, D. D49�les DD M/ada cc: D. Wayne Combs Rt. 1, Box 44 Chapel Hill, NC 27514 It off 20 . RECEDED s , ti a � . � 10i5 NORTH CAROLINA ORANGE COUNTY A F F I D A Q I T i i I, J. B. Martin, being first duly sworn, do depose and say: 1. My address is Route 7, Box 279, Chapel Rill, North Carolina, 27514_ i I� 2. On Y Ma 21 1979 I purchased a tract containing 6.0 acres from Evelyn Atwater and husband Roscoe Atwater as is set forth in a deed dated May 31, 1979 recorded in Book 311 at Page 422 Orange County Registry. 3. Said tract is located on the East side of N.C. State Road f 1948 1 . in Bingham Township, Orange County, North Carolina. 4. I sold said 6.0 tract to Donald Wayne Combs on August 29, 1983 as is set forth in a deed bearing that date and which is recorded in Book 432 at Page 356, Orange County Registry. 5. Throughout the period of May 21, 1979 to August 29, 1983 I stored numerous used and junked motor vehicles on the 6.0 tract for the purpose i �i of repairing vehicles, where possible, and for the eventual sale of parts ;I and scrap. I This the 2 is day of March 1984. B. rtin, Affiant I i i t IISworn to and Subscribed before me �c�� �� �'� '� Notary Public, this day of March, 1984 ����';� �.�7 i Notary Pu is ` f). DUNCAN MAYSILLES g IOi ,I My Commission expires: NOTARY PUBLIC II �G OAVIE COUNTY, H.C. � �► rt off 20 1992 L L F{IDAT, P.A. , ATTORN(Vf AT LAW RECEIVED i--i UNIV(RfITT SGUAR((. ' l� 127 W. (RANK IIN ST. r„A.CL MILL. M.C.ZM4 ' (iit)iss•iiii a ((SS 27 September 18, 1992 Mr, Jim Hinkley Orange County Planning Department P.O. Box 8181 Hillsborough, NC 27278 Dear Mr. Hinkley:. I write in regard to the proposed zoning atlas amendment Z-3-92, the property in question belonging to Mr. Donald Combs. A notice was sent to me regarding the public hearing that took place on August 24, 1992. During August I was away on business for an extended period of time, and therefore did not receive the notice until after the hearing actually took place. Ergo, I wish to take this opportunity to make my opinion On this issue known to the Planning Department and Board of Commissioners. I wish to state unequivocally that I am against the proposed change of zoning from RB to EC-5 on the property in question. My property is adjacent to the property that Mr. Combs uses as an auto salvage storage area. Mr. Combs currently uses a land area to store auto salvage that is much larger than the area proposed for zoning change. When I moved into my house in May 1987, 1 was aware of the presence of approximately 20 automobiles on Mr. Combs property. Since that time this has grown in number to several hundred autos. Thus Mr. Combs has been in violation of the current RB zoning for at least four years. Granting an EC-5 designation would be tantamount to setting a precedent that rewards ongoing zoning violations. As I have watched Mr. Combs' auto salvage business grow over the past five years, my concern has grown over the potential health and environmental hazard. This auto salvage area is a breeding ground for rats and other vermin. Last year Mr. Combs cleared of trees and topsoil over an acre of land for auto storage, thus providing a potential site for auto-derived petrochemical runoff into the water supply. Because I do not know and have never seen Mr. Combs, I contacted the Planning Department twice to express these concerns. I was told that this situation would be looked into further. To my knowledge there is no legal reason why an EC-5 zoning should be granted, nor any reason to believe that an error was made in assigning the existing RB zoning. I believe it was suggested that Mr. Combs is merely conti^uing a non^onfcrm1rg use of the land established by a prior owner. However, there is evidence of both discontinuation of and expansion of the non-conforming use under Mr. Combs' ownership. Photographs taken around 1981 indicate there were no autos on the land in question. I personally have witnessed over the past five years the explosive growth of autos stored on this property. This evidence suggests that the nonconforming use should not be continued under the current RB zoning, and certainly does not suppport a change to EC-5. An EC-5 zoning would open this piece of land to a plethora of potential future uses that are inconsistent with the agricultural and rural residential nature of this area. If Mr. Combs is allowed to continue his business at all, it should be under the current RB zoning with a variance clearly specifying the nature of the business and size restrictions on the enclosed and outside storage. The outside storage area should be more in line with earlier use estimates as opposed to the currently proposed area (1.84 acres), or the even larger currently used area. It is my feeling that these restrictions are necessary 1 • 29 because, to date, Mr. Combs has shown little compliance with current land use restrictions and little respect for environmental issues or adjacent landowners. Thank you for your consideration. Sincerely, Linda R. Noonan, Ph.D. f t 29 10.4 , ,�✓% October 7, 1992 Mr. Jim Hinkley Orange County Planning Department P.O. Box 8181 Hillsborough, NC 27278 Dear Mr. Hinkley: I write in regarxd to the letter I sent to you, dated September 18, 1992, stating my opinion of the proposed zoning atlas amendment Z-3-92. This letter was printed on stationery bearing the University of North Carolina at Chapel Hill and Department of Psychiatry letterhead. It has recently been suggested to me that the use of this ietterhead could be construed to reflect that my personal opinion may also be that of the University of North Carolina at Chapel Hill and the Department of Psychiatry. Whereas it is true that I am a faculty member of the University of North Carolina at Chapel Hill and the Department of Psychiatry, to my knowledge neither entity has to date been aware of my opinion on the zoning amendment or the circumstances surrounding it. Nor does it seem reasonable to assume that they have any interest regarding the issue. I believe that my letter clearly states that the opinions and observations contained in that letter were mine alone. Whereas my affiliation with the University of North Carolina at Chapel Hill and the Department of Psychiatry has no bearing on the facts pertaining to the zoning amendment, I also would not want misunderstanding to occur. Therefore I enclose a copy of my letter of September 18, 1992 on stationery without letterhead._ In all other respects, the letter remains unchanged. Sincerely, Linda R. Noonan t ORANGE C7v ��. ,t= : 7Z PETITION RE Z-3-92 ZONING ATLAS AMENDMENT REQUEST In the matter of the ZONING ATLAS AMENDMENT concerning the Wayne an Combs property on Ferguson Road in Bingham Township we d Brenda unequivocally opposed to the rezoning of the we,tract and undersigned,er petition Board of Commissioners to uphold the PLANNING mbs the undersigned, are that 'There was-no error made with respect to this property FINDINGS AND RECOMMENDATION adopted for Bingham Towhship on September 2 1981. -property when zoning was , We believe. that the absence of autcmObiles or auto salvage/repair-vela structures discernable in! the aerial photographs taken in 1979 and 1982 is sufficient. evidence in and of itself to refute claims that the site of commercial activity. s property was a In regard to Mr. Comb's contentions which conflict with the evidence of Photographs that the property was not a site of commercial activity on /2/ we question the applicant's veracity with regard to the following': 9 2/ g, 1• On an- application made 3/22/90 for a buildin on the property, Mr. Combs sti g permit for the garage he built owner's own cars. " pulated that the garage "will be used to store 2. At 'the hearing held"On' August 24, 1992 it was represented that were employees working On the property other than members of Mr. c' ombserfamily no '. on a visit to the site an October 21, 1991, the Orange county administrator found that the above-mentioned garage had three bays nand w equ-pped with "two lifts and other heavy auto maintenance and repair as equipment, .,a machine shop and tool area, office area, and a write amen and red lettering advertising INTERSTATE BATTERIES mounted on-thewwest racade• .and "four people working in the garage-. On Au;,ust 31, 1992, the zonin ; found that a g administrator again visited the Site anc second business, Mike's Auto Service, was in business using the garage on the Canrbs. premises. i S. The undersigned believe that in addition to the storage, salvage and repair �� vehicles on the site, the property has been used as a site to disolay any sell non-salvage (street usable) automobiles a business for which the state of North Carolina requires a license but for which Mr. Combs is not legally '_icensable .without a change in zoning. The EC-5 zoning would allow Mr. y Combs tc have an automobile sales business as a Property. permitted use on the _ S . ---;----��r�o�(s►_?e�tzre ,�/r�4 - - - ---------- L _ r ►_Le �Z--- C CIiA,PEL. HILL r C� ICE DFrAR. _NT 828 AIRPORT ROAD 31 a APEL HILL, NC 27514 (919) 968-2760 December 17, 1991 t Ir- . Wayne Carbs W�stside Towing .1300 Ferguson Rd. - U mne1 Hill , NC 27514 Dear- Wayne: Tl s letter con irJrGs or jr telephone conversation of Dec en-,ber 11 . 1991 , egaraing the policy change for towing of abandoned vehicles. Effecti• a inn,ediately abandoned vehicles will no `,e stored a`. the Chapel Hill Police Department Ccxnpound Lot. Abandoned vehicles shall be towed Lo your company's storage facility. Your company will receive the towing fee for- removal of the vehicle. After thirty (30) days your can apply a Mechanic's Lien on abandoned vehicles and then dispose of properly. Your canpany' s wrecker driver will be advised by the police officer when a vehicle is considered abandoned and should be towed to y n t rr- f a c i l i t y. _ The definition of an abandoned vehicle is: "a vehicle of any kind" which is parked or left standing "upon any public street" or right-of-way and "sane ut-mved fore a per iod of time in excess of forty-eight (48) holm°s." (Sec. 21 -22 Town Code of ordinance. ) After due process of law sUch vehicle may be r-ecI,eved as abandoned. This due process takes approximately three (3) weeks. This department appreciates your cooperation in this matter- and if You have any questions please call me at ,968-2760. Sincerely, Lt. W.J. SirtTmns Support Set-vices WJS:jnw J 32 OF WA:,-.-7R MCFALL 1 �7 My name is Walter McFall . I am Lamiliar with the property on Ferguson Road now owned by Wayne and Brenda Combs . I worker C the former owner, J. B . Martin, starting in 19715 , and I re- member when he bought the property . He bought it to move h_s car repair garage to, and to store cars on for parts , and he started putting junked cars out here just after he bought It . By 1980 , there were a lot of cars out there , at leas` 25 or 3c ; enough to be a salvage yard. There was a lot of other gunk there , too; pieces of lumber, tractor parts , etc . J. B. was a pack rat and never threw anything away, and the number of cars out at '-is land always went up, it never went down. This the day of December, 19 . WALTER MCFALL Sworn to and subscribed before me this dad Of Notary Public t, Mltti° Y Commission Expires �/��/ � , �'• y, • 33 AFFIDAVIT OF WILLIAM C. FORD My name is William C. Ford. I am familiar with the propert}- at 1300 Ferguson Road now owned by Wayne and Brenda Combs, and have been for over 30 years. I have lived in this part of Orange Count• all my life, and currently live less than a mile away through the woods. I knew J.B. Martin, the former owner of the land for about 20 years, and used to work for him. I know that he bought the property now owned by the Combs' around 1979. During 1979, 1980 and 1981 I was on the property about once a month, usually riding horses through it. J.B. Martin started to put used parts cars on this land during this time, and I know that by 1981, there were at least 40 used parts cars on the land. This the day of Ir, 1991 . WILLIAM C. FORD Sworn t�4,tand+r6y4bscribed to befot re t, ts# , �(. day of ` ' r;' ': 1991. ?Y w , No trr�.`$ b-11-C 34 ROBERT H. SMITH ATTORNEY ANO COUNSELOR AT LAW PAGE BUILDING 210 NORTH COLUMBIA STREET CHAPEL HILL- NORTH CAROLINA 27514 TELEPHONE(919) 942.4161 November 22, 1991 Mr. James R. Hinkley Orange County Planning Dept. 306F Revere Road Hi l l c},nrrnlrrh, NC ?7 278 Re: Combs property - Tax Map 37B, 6 & 6A, Bingham Township Dear Mr. Hinkley: To meet the concerns of Orange County, Mr. Combs-has contacted a firm that removes junk cars in an attempt to reduce the number of cars on this property. He has been told that the market for these cars is very bad right now, and that kernersville is not taking cars at this time. As you know, this is the regional center for disposing of these Cars. He will continue to work on this. Our appeal time to the Board of Adjustment runs out on December 2. While we are attempting to resolve this matter, it might be helpful to have a commitment that our appeal time will not lapse if it is not filed by that date. Please contact me concerning this matter. I thank you again for your cooperation. V�ry t ul our , Robert H. Smith /kms 35 AFFIDAVIT OF KENNETH H. MARTIN My name is Kenneth H. Martin. In 1978 or 1979 , my parents , J .B. and Doris Martin, bought a tract of land on Ferguson Road in Bingham Township which is now owned by Wayne and Brenda Combs. At the time , my father worked on cars at our house on Mt. Carmel Church Road, and I worked for hir.. We needed a place to put cars, and bought this land for the purpose of having a salvage yard to keep old cars . Most of them were junk cars which were used for parts. We checked with Orange County before my parents bought the land to be sure there were no zoning regulations or other regulations which would keep us from storing cars on the land and were cold that it was permitted. As soon as the land was purchased, we started taking cars out there. I had a wrecker and took most of them out there myself. At first, there were probably 10 cc 115 cars out there. More cars were taken out from time to time and cars were almost never taken off of the land. When my parents owned the land, I went out there at least once a week, and sometimes as much as 10 times a week. When the land was sold to the Combs, they agreed that we could keep cars out there, and so I have continued to go to the land frequently up to the present time. There have been old junk cars kept on this land continuously since my family bought it. This the day of i �" 1991. KENNETH H. MARTIN Sworn to and suoscribe� to before me this day of Uu , ,1991. Notary Public My Commission _xpires: 36 AFFIDAVIT OF DORIC H. MARTIN 1 My name is Doris H. Martin. My late husband, J.B. Martin, and I were the former owners of a tract of land in Bingham Townshi on Fer sold to Wavne and Brenda Combs by us in 1983p and a Boson Road. This cracc was P_ oI the deed is attached. My husband and I purchased this land in 1979. We never lived there or had a house there. It was bought for the sole purpose of storing cars. MY husband worked on cars at our home on `;t. Carmel Church Road, and needed a place to store cars. This the i/ day of DORIS H. MARTIN Sworn to and subscribed to before me this the day of �uJ 1991. Notary Public My Commission ExBi'res: <' AFFIDAVIT OF EER.BERT ARRINGTON My- name is Herbert Arrington. I was a good friend of J.B. Martin' s, and knew him from the 1950' s until his death in 1987. I am familiar with the property in Bingham Township on Ferguson Road now owned by Wayne and Brenda Combs. This was previously owned by J.B. Martin and his wife, Doris. I remember when the Martins bought this property in 1979. J.B. Martin needed a place to score cars, and also was planning to build a car repair shop there. I went to this land with J.B.Martin at leasc 3 times, the first time right after he bought the land, and the second and third times I believe were in 1980. On each occasion, J.B. Martin and . were riding around together, and rode out to the land to look at it , or to look for a part from a junked car which was on the land. Each cime we stayed 30 to 45 minutes. she first time I went to this land, there were approximately 10 cars stored there. The other 2 times there were 10 to 15 cars. A few of the cars still ran, but most were junk cars kept to get parts. The cars I saw were grouped together in the middle part of the property. I did not go on the whole property and do not know if there were other cars oa ocher parts of it. I was on the property in 1983 to deliver a tractor to Wayne Combs, and there were as many as 50 junk cars on the property at chat time. I have been on the property several other times between the time Wayne and Brenda Combs bought the property and the present, and there have always been junked cars stored on the property. This the day of 1991. HERBERT ARRINGTON Sworn to and subscribed to (/ before they-�, day . 1 ✓ , 1991. NOTARY %;�<: N�QLar.V P ,�L�� i O �' i G My 5, �3aioc' �t���.�res N