HomeMy WebLinkAboutAgenda - 08-03-1995 - VIII-K 1
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OR AN G E C O UK T Y
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: August 3, 1995
Action Agenda
Item # V=-K
SUBJECT: PROPOSED ZONING ORDINANCE TEXT AMENDMENT
Article 8 - Special Uses
DEPARTMENT: PLANNING PUBLIC HEARING Yes X No
ATTACHMENT(S) : INFORMATION CONTACT:
Mary Willis
Proposed amendment Extension 2583
Correspondence from County Attorney
Draft 5/31/95 Public Hearing Minutes TELEPHONE NUMBERS:
Draft 6/19/95 Planning Board Minutes 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.
The proposed amendment was presented for public hearing on
May 31, 1995. There were no comments.
The Planning Board considered the proposed amendment on
June 19, 1995, and recommended approval. The vote was
unanimous.
RECOMMENDATION: The Administration recommends approval of the proposed
amendment.
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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
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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) ;
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ctt fie use .is in compliance ie
general"'"plan for the physical development of the
County as embodied in these regulations or in the
Comprehensive Plan, or portion thereof, adopted by
the Board of County Commissioners;
and including all applicable provisions of
Articles 4, 5, 6, 7, 9, 10 and 12 of this
Ordinance, unless greater or different regulations
are contained in the individual standards for the
specific Special Use. it- all be the
Eespensibility of t he-appireant `_e '" es
evidenee
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a in the form off` testimony; exhibits,
docu.me.nts, models, plans and the like
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8.2.2 Where the Board finds a pEependeEaaee-ef eviQenee 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) The use will net maintain 9E enhaneezie value-ef
eentigueus g eper-ty (unless the ese publie
neeessity, in which ease-tare-use-need net ma Main o=
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e) The s-aet is-eempli a--with t-die- jeaeL-al plane
=eE th sieeldeeepment e€-ter
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peEtien tie-ree€y--adepted by- he Be -a #--Ec::ntj
Ge
Those opposing approval of the application on the grounds
that the use will not promote the public health, safety
and general welfare, will net-maintali n eEenhaeeethe
value viean igaeuspa=epeEty eEis net in eempilanee-irs'cr�'r
the-geaEal plans feE the physleal develepment-ef the
City 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:
LAW OFFICES 5
COLEMAN, GLEDHILL & HARGRAVE ' ALONZO BROWN cols,N jR.
A PROFESSIONAL CORPORATION GEOFFREY E.GLEDWrt r
129 E TRYON STREET DOUGLAS HARGRAVE
P.O.DRAWER 1529 III K SEAN
HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON
(919)732-2196 DOUGLAS P.THOM
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 Perms s
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
s
I
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Mr. Marvin Collins
Page 2
March 7, 1995
the application stage. On the other hand, although the applicant
can be required to show in general that the use will maintain or
promote the public health, safety and general welfare, the
applicant cannot be expected to anticipate every specific health,
safety and welfare problem. Proof of any such specific problem
should be the responsibility of opponents .
The best statement of the principles involved here is that
contained in Brough & Green, The Zoning Board of Adjustment, at
pages 83-84 (2nd ed. Institute of Government, UNC-CH, 1984) .
These principles were recognized and approved in a recent North
Carolina Court of Appeals case, Sicnorel•li 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
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Mr. Marvin Collins 7
Page 3
March 7, 1995
the issue of public health and safety was that there was no
evidence before the board on this issue.
I recognize that all of this is perhaps legalistic to a
fault. However, I think my analysis is correct and I wanted to
share it with you. if for no other reason than to test your quasi
lawyering skills and set down in writing the basis for the
ordinance change, together with an analysis that will help in its
implementation when adopted.
I have also enclosed a copy of a recent North 'Carolina Court
of Appeals decision in the case of Vulcan Materials Company v.
Guilford County Board of County Commissioners, 115 N.C.App. 319,
444 S.E.2d 639 . That case approves the use of a special use
permit standard in the Guilford County Zoning Ordinance which may
be helpful to Orange County and which could be an addition to the
third special use permit general standard in the Orange County
Zoning Ordinance. That standard is that the special use be "in
harmony with the area in which (it] is to be located. . . . " Id. ,
444 S.E.2d at 642. As you can see by the analysis of the court
in the enclosed opinion, that standard permitted a denial of an
industrial use (rock quarry) when competent, material and
substantial evidence was presented that the use contemplated was
in fact not "in harmony" with the surrounding residential and
Agricultural land uses, notwithstanding the general conformity
implicit in the fact that this special use is one permitted in
the agricultural/residential zoning district. I commend this
approach and have included language in the rewrite of Section
8.2.1 which will accomplish it for your consideration.
Finally, I .have reviewed again the Orange County Board of
Adjustment's Rules of Procedure and recommend the changes
enclosed. These recommended changes arise out of one or more
North Carolina Appellate Court decisions. The most important
proposed change is to Section 3(e) . One North Carolina .Court of
Appeals decision remanded a board of adjustment decision because,
among other reasons, the chair failed to summarize the evidence
presented at the special use permit hearing and provide the
parties an opportunity to make objections or corrections before
the board of adjustment made its decision. Cardwell v. Forsyth
County Zoning Board of Adjustment, 88 N.C.App. 244, 362 S.E.2d
843 (1987) , rev. denied 321 N.C. 742 (1988) . It seems to me that
no matter how helpful such a practice is, it need not be the
basis for overturning a board of adjustment decision. In that
regard, there is no comparable requirement or practice by the
Board of Commissioners in its special use permit procedures.
Also, eliminating the requirement that the chair of the board of
adjustment summarize evidence does not mean that the chair cannot
do this if it is the practice.
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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;; GLEDHILL & HARGRAVE, P.C.
i
Ge rey E. Gledh' ll
GEG/lsg
Enclosures
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( 1) Article 8 - Special Uses
Presentation by Emily Cameron.
This item is 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.
The proposed amendment waq 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.
The proposed amendment was presented for public
hearing on May 31, 1995. There were no comments.
(A copy of the proposed amendment is an
attachment to these minutes on pages . )
The Planning Staff recommends approval of the
proposed amendment.
Barrows stated that she had spoken with the
County Attorney about this item today. She was
concerned about deleting 8.2 .b since it is the
only place in the ordinance that addresses the
value of contiguous property. She was concerned
that citizens would not be aware of what they
could speak about at the public hearing for a
Special Use Permit. She continued that Gledhill
indicated the best way to address her concern was
to include a letter from the Board of Adjustment
with the notification to property owners. The
letter would let citizens know about the
testimony that could be heard at the public
hearing and how the Board of Adjustment uses
testimony to make a decision. Gledhill said he
would be available to assist Planner Eddie Kirk
with such a letter.
MOTION: Barrows moved approval as recommended by Planning
Staff. Seconded by Jobsis.
Katz expressed concern that some uses have much
greater impacts than just on contiguous property;
in particular, transmission towers and the visual
impact beyond 500 feet. He felt that property
values would be affected by the visual impact
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even though the property may not be contiguous
and asked what mechanism is in place to address
this concern.
Waddell asked for clarification on notification
procedures. Cameron responded that for a
variance, notification is to contiguous owners;
Special Use Permits require notification of
property owners within 500 feet.
Katz continued expressing concern that towers
with strobe lights have impacts far greater than
500 feet. He felt "if you could see it, you
should be notified" . Waddell asked Staff about
the feasibility of such notifications. The time
involved in determining properties that might be
visually impacted could be excessive and some
other answer to the concern should be found.
Hoecke noted that there are pitfalls in such a
suggestion.
Cameron expressed agreement with the concept.
However, the whole legality of the case is based
on procedure. If one person who may be impacted
is not notified, the whole process could become
null and void. Depending on the type of impact,
visual, traffic, etc. , determining the limit
of affected property would be difficult. She
continued that the County Attorney drafted the
amendment and she would ask for clarification and
guidance from him. Waddell suggested that Staff
discuss this concern with the County Attorney.
Hoecke continued that he was concerned with the
possibility of claims due to the fact that it
could be interpreted very loosely. It would
have to be very carefully thought out.
Barrows stated that there was discussion in that
TAC meetings that development could occur with
citizens knowing about it. She noted that Gene
Bell, Planner, has been sending copies of the
agenda face sheet for the Planning Board and
Commissioners meetings to the Little River TAC
members in order to keep them informed. She
continued that some similar notification might
work for the Special Use process.
Reid expressed concern regarding the consequences
that could occur. Waddell agreed, stating that
was another reason to ask for the County
Attorney's opinion.
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VOTE: Unanimous.
Meeting adjourned 11: 15 p.m.
Prepared By
Approved By
Date