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HomeMy WebLinkAboutAgenda - 05-31-1995 - D2(a) 1 OR AN G E C 0 U N T Y BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: May 31, 1995 Action Agenda Item # D 2 a) SUBJECT: PROPOSED ZONING ORDINANCE TEXT AMENDMENT Article 8 - Special Uses DEPARTMENT: PLANNING PUBLIC HEARING —x—Yes No ATTACHMENT(S) : INFORMATION CONTACT: Mary Willis Proposed amendment Extension 2583 Correspondence from County Attorney TELEPHONE NUMBERS: Hillsborough-732-8181 Durham -688-7331 Mebane -227-2031 Chapel Hill -967-9251 PURPOSE: To consider a proposed amendment to the Zoning Ordinance which would clarify who bears the burden of proof in the consideration of Special Use Permits. BACKGROUND: The proposed amendment was initiated and drafted by the County Attorney after reviewing several recent appeals of Board of Adjustment decisions. The proposed amendment clarifies that the applicant bears the burden of proof to show that a proposed Special Use is in harmony with the surrounding area, and that those opposing approval of a Special Use have the burden of proof in establishing that the use does not satisfy approval requirements. RECOMMENDATION: Article 20 of the Zoning Ordinance requires that the Zoning Officer's recommendation be presented to the Planning Board within 30 days of receipt of an application. However, Article 20.4 exempts any application for amendments to the Zoning Ordinance by either the public or the County from the provisions of Article 20.3. In either case, though, the public hearing is the time scheduled for presentation of the Zoning Officer's Recommendation. Zoning Officer Recommendation Provided that the Planning Board and Board of Commissioners find in the affirmative, the Zoning Officer recommends approval of the proposed text 128 amendment. Administration Recommendation The Administration recommends that the proposed amendment be referred to the Planning Board for a recommendation to be returned to the Board of Commissioners no sooner than August 5, 1995. PROPOSED ORDINANCE AMENDMENT ORDINANCE: ZONING ORDINANCE REFERENCE: ARTICLE 8 SPECIAL USES ORIGIN OF AMENDMENT: Staff Planning Board BOCC Public _x_ Other: County Attorney STAFF PRIORITY RECOMMENDATION: _X High Middle Low PUBLIC HEARING DATE: May 31, 1995 PURPOSE OF AMENDMENT: To consider a proposed amendment- to the Zoning Ordinance which would clarify who bears the burden of proof in the consideration of Special Use Permits. IMPACTS/ISSUES: The proposed amendment was initiated and drafted by the County Attorney to clarify which parties bear the burden of proof in the consideration of Special Use Permits. The proposed amendment would make it clear that the applicant has a burden to show that value of contiguous property would be maintained or enhanced if the Special Use Permit were approved, and that the use would be in compliance with the Comprehensive Plan. These two items are fact specific and can be readily established by evidence available to the applicant when the application is submitted. On the other hand, although the applicant can be required to show in general that the use will maintain or promote the public health, safely and general welfare, the applicant cannot be expected to anticipate every specific health, safety and welfare problem. Opponents to the request have the burden of proof in establishing that the Special Use would be injurious to some specific aspect of health, safety and general welfare. EXISTING ORDINANCE PROVISIONS AND PROPOSED AMENDMENT: 8.2.1 Before any application for a Special Use shall be approved: a) The applicant shall have the burden of establishing, by competent material and substantial evidence, the existence of the facts and conditions which this ordinance requires for approval; and 130 b) The Board shall make written findings certifying compliance with the specific rules governing such individual Special Use and that the use, which is listed as a Special Use in the district in which it is proposed to be located, complies with all required regulations and standards including the following general conditions: ( 1) The use will maintain or promote the public health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted; (2) The use will maintain or enhance the value of contiguous property (unless the use is a public necessity, in which case the use need not maintain or enhance the value of contiguous property) ; be ......... .�::•.; : •.i:V.ii:.:::'.:: ::::}}:::.ii:Yi:'.ii'.ii::.::. : ,aseat the use is in compliance with the generalplan for the physical development of the County as embodied in these regulations or in the Comprehensive Plan, or portion thereof, adopted by the Board of County Commissioners; and including all applicable provisions of Articles 4, 51 6, 7, 9, 10 and 12 of this Ordinance, unless greater or different regulations are contained in the individual standards for the specific Special Use. it shall he the Fespeneib lty of the agpileant `e prose evidenee de :. Form o testimony, ex i its: documents, models, plans and the like te-sapped tree l eat es 9E ef a Spee=al Hse t t 8.2.2 Where the Board finds - e}gea leEanee-ef evic4esee to indleate compliance with the general standards, specific rules governing the specific use and that the use complies with all required regulations and standards the application must be approved unless the Board shall also find, in some specific manner.::: that: a} The use will not maintain or promote the public health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted; h) Whe use-will net maintain ee enhanee—the-value ef eentigueas pEepeEty—f-%nless th a-ubile nesese-ity; in .:hiss-ease the use need net-maintain ems enhanee—the---value--el eentr9ueas-PrepEty+t 131 8) The in these Eegulatiefis eLc Those opposing approval of the application on the grounds that the use will not promote the public health, safety and general welfare, will ft9t maintain uE eahaaee-fie GE s ftet In-eemp l i ane a wi: # -the- geneEal piaee €e--the physiea! develepstea1 -9 the Geanty shall have the burden of establishing, by competent material and substantial evidence;;; the specific manner in which the proposed use does not satisfy the requirements for approval of the application for a Special Use. ********************************** ORDINANCE REVIEW SUBCOMMITTEE: PLANNING BOARD REVIEW: BOCC REVIEW: 132 ' 33 LAW OFFICES COLEMAN, GLEDHILL & HARGRAVE ' ALONZO BROWN COLEMAN,JR. A PROFESSIONAL CORPORATION GEOFFREY E GLEDHILL 119 E.TRYON STREET DOUGLAS HARGRAVE P.O.DRAWER 1529 KIM K STEFFAN HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON (919)732.21% DOUGLAS p THOREN FAX(919)732-7997 SAMUEL ELY COLEMAN March 7, 1995 Mr. Marvin Collins Planning Director Orange County Planning Department Post Office Box 8181 Hillsborough, North Carolina 27278 RE: Special Use Permits Dear Marvin: As you know, of late I have been busy with appeals of Board of Adjustment decisions. That activity has alerted me to what I see as a source of ambiguity in the special use permit application process and the need to modify the Board of Adjustment's Rules of Procedure. Presently Section 8.2.1 of the Zoning Ordinance places the burden of proof on the applicant to prove the general conditions listed as (1) , (2) and (3) under subsection b) . Section 8.2 .2 then purports to shift the burden of proof on those same matters to opponents of the special use permit. I think this process should be revised. The burden should continue to be the applicants to prove Section 8.2.1.b, (1) , (2) and (3) . Opponents of an application, on the other hand, should have no burden with respect to the matters contained in Section 8.2.2(b) and (c) . Opponents of an application will, of course, have the opportunity to present evidence on the matters contained in those subsections. Enclosed is a rewrite of Section 8.2.2 with highlighted (new) and cross through (eliminated) language that accomplishes this change. My reason for recommending that this change be made is to make it absolutely clear that the applicant has a burden to make a showing with respect to value of contiguous property and that the use must be in compliance with the County's "general plan" for development. These two items are fact specific and can be readily established by evidence available to the applicant at A s 134 Mr. Marvin Collins Page 2 March 7, 199,5 the application stage. On the other hand, although the applicant can be required to show in general that the use will maintain or promote the public health, safety and general welfare, the applicant cannot be expected to anticipate every specific health, safety and welfare problem. Proof of any such specific problem should be the responsibility of opponents. The best statement of the principles involved here is that contained in Brough & Green, The Zoning Board of Adjustment, at pages 83-84 (2nd ed. Institute of Government, UNC-CH, 1984) . These principles were recognized and approved in a recent North Carolina Court of Appeals case, SigMorelli v. Town of Highland, 93 N.C.App. 704, 379 S.E.2d 55 (1989) . In that case, the applicant sought a special use permit. The permit was denied and the Superior Court affirmed on the basis that the "petitioner failed to meet the burden of producing evidence and the burden of persuasion to allow the board to find in the petitioner's favor. " 379 S.E.2d at 57 . The Court of Appeals' decision affirming the Superior Court in Signorelli contains the first explicit recognition in North Carolina case law that "the evidentiary burden in special use permit proceedings can shift from the applicant to those who oppose the application. " Id. The Signorelli case is interesting also for its recognition that the applicant has some burden on the issue of public health, safety and general welfare, notwithstanding the caution on that point in the passage from the Brough and Green publication set out above. The Signorelli court concluded that the applicant had established a prima facie case because his application demonstrated compliance with the relevant specific requirements and therefore the question was whether the burden of showing that the proposed use would materially endanger the public health and safety had been met. The court stated that there was evidence that the plans were not specific enough for the board to properly decide whether or not the proposed use would materially endanger the public health and safety. In particular, the court noted that the board had found that: . . .no set of plans or specifics were submitted regarding hours of operation, number of machines and tables, or methods of supervision so that protection of the public welfare against traffic and noise difficulties was not assured. Id. , 379 S.E.2d at 58. The court then concluded that "a plan lacking in essential details and specifics potentially threatens health and safety no less than a detailed plan which is antithetical to the public and the public interest. " Id. , 379 S.E.2d at 59. In other words, the evidence before the board on 35 Mr. Marvin Collins Page 3 March 7, 199-5 the issue of public health and safety was that there was no evidence before the board on this issue. I recognize that all of this is perhaps legalistic to a fault. However, I think my analysis is correct and I wanted to share it with you if for no other reason than to test your quasi lawyering skills and set down in writing the basis for the ordinance change, together with an analysis that will help in its implementation when adopted. I have also enclosed a copy of a recent North 'Carolina Court of Appeals decision in the case of Vulcan Materials Company v. Guilford County Board of County Commissioners, 115 N.C.App. 319, 444 S.E.2d 639. That case approves the use of a special use permit standard in the Guilford County Zoning Ordinance which may be helpful to Orange County and which could be an addition to the third special use permit general standard in the Orange County Zoning Ordinance. That standard is that the special use be "in harmony with the area in which [it] is to be located. . . . " Id. , 444 S.E.2d at 642 . As you can see by the analysis of the court in the enclosed opinion, that standard permitted a denial of an industrial use (rock quarry) when competent, material and substantial evidence was presented that the use contemplated was in fact not "in harmony" with the surrounding residential and agricultural land uses, notwithstanding the general conformity implicit in the fact that this special use is one permitted in the agricultural/residential zoning district. I commend this approach and have included language in the rewrite of Section 8.2.1 which will accomplish it for your consideration. Finally, I have reviewed again the Orange County Board of Adjustment's Rules of Procedure and recommend the changes enclosed. These recommended changes arise out of one or more North Carolina Appellate Court decisions. The most important proposed change is to Section 3(e) . One North Carolina .Court of Appeals decision remanded a board of adjustment decision because, among other reasons, the chair failed to summarize the evidence presented at the special use permit hearing and provide the parties an opportunity to make objections or corrections before the board of adjustment made its decision. Cardwell v. Forsyth County Zoning Board of Adjustment, 88 N.C.App. 244, 362 S.E.2d 843 (1987) , rev. denied 321 N.C. 742 (1988) . it seems to me that no matter how helpful such a practice is, it need not be the basis for overturning a board of adjustment decision. In that regard, there is no comparable requirement or practice by the Board of Commissioners in its special use permit procedures. Also, eliminating the requirement that the chair of the board of adjustment summa ize evidence does not mean that the chair cannot do this if it is the practice. r .. 136) Mr. Marvin Collins ' Page 4 March 7, 1995 I'll be glad to review all of this with you. I would hope that an ordinance amendment consistent with this letter could be considered by the Board of Commissioners at the next scheduled regular quarterly public hearing and the Board of Adjustment could consider the Rules of Procedure changes as soon as practical. Very truly yours, COLENW, GLEDHIT T. & HARGRAVE, P.C. Ge rey E. Gledh 11 GEG/lsg Enclosures 1sg\home3\mco11in4.1tr