Loading...
HomeMy WebLinkAboutAgenda - 09-05-1995 - IX-A 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 5, 1995 Action Agenda Item # XV-A SUBJECT: Z-3-95 Marion Henry Wilson, Jr. and Nancy Wilson ACTION BY: DEPARTMENT: PLANNING PUBLIC HEARING Yes X No ATTACHMENT(S) : INFORMATION CONTACT: Mary Willis X2583 Vicinity Map Correspondence from County Attorney Public Hearing, Planning Board, and TELEPHONE NUMBERS: Commissioners Minutes from Combs Hillsborough - 732-8181 Rezoning (Z-3-92) Durham - 688-7331 5/31/95 Public Hearing Minutes Mebane - 227-2031 7/17/95 Planning Board minutes Chapel Hill - 967-9251 PURPOSE: To consider the rezoning of a .92-acre parcel (6.73B. .6A) from EC-5 Existing Commercial to RB Rural Residential. 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. 2 s 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 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 Service 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 • - 3 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 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. 4 Purpose Of The May 31, 1995 Public Hearing The purpose of the May 31, 1995 public hearing was to provide an opportunity for new information to be submitted regarding the use of the property when zoning was applied in 1981. STAFF EVALUATION Approval of Current Zoning District (EC-5) Issues discussed when the property was requested to be rezoned from RB to EC-5 ( 1992) focused on whether or not the property had been used for commercial purposes when Bingham Township was zoned in September, 1981. There was some testimony indicating that some activity involving storage, salvage and/or repair of vehicles had been occurring on the property when zoning was applied. The Planning Staff and administration recommended that the rezoning not be approved on the basis that no visible evidence of a business was evident in aerial photographs taken in the late 1970 's and early 19801s, and there were no business records to indicate the operation of a business. The discussion and testimony focused on whether or not the property was used for business which would be applicable according to the Table of Permitted Uses and definitions found in the Zoning Ordinance. The Board of Commissioners was persuaded by the evidence and testimony presented that the property had been used for business purposes when Bingham Township was zoned, and approved the requested rezoning to EC-5. At the time of the Board's decision, as well as during the preceding review by the Planning Staff and Planning Board, the focus was less on the specific use in terms of definitions of various uses found in the Zoning Ordinance and the provisions of the Table of Permitted Uses and more on determining whether or not a commercial use existed at all. Decision of Superior Court The decision of the court following appeal of the Board of Commissioners decision requires the Board of Commissioners to now consider whether or not a commercial use permitted in the EC-5 zoning district existed on the property at the time that Bingham Township was zoned in 1981. 5 Relevant Zoning Ordinance Provisions There are several uses and provisions in the Zoning Ordinance which relate to the storage, repair or salvage of automobiles. Junkyard - An establishment operated or maintained for the purpose of storing, dismantling, salvaging, buying or selling scrap or used. . . .vehicles. . . Junkyards are allowed in some zoning districts as a Class A Special Use, but are not allowed at all in the EC-5 Zoning District. Motor Vehicle Maintenance and Repair - An establishment where the following services are available: (a) body work, (b) straightening of body parts, (c) painting, (d) welding, (e) storage of motor vehicles not in operating condition Motor Vehicle Maintenance and Repair establishments (body shops) allowed by right in the EC-5 zoning district. Motor Vehicle Service Station - An establishment where gasoline, diesel oil and/or other fuel for internal combustion engines is supplied and dispersed at retail, and where, in addition, the following services may be rendered and sales made and no other: Sales and services of spark plugs, batteries and/or distributors and ignition system parts, sales servicing and repair of tires, but not recapping or regrooving; replacement of mufflers, tailpipes, water hoses; . . . . . minor motor adjustments not involving removal of the head of crankcase; sales of beverages, package foods, tobacco products and similar convenience goods A•service station is not a repair ara a nor a 9 9' body shop. Uses permissible at a service station do not include major mechanical and body work, straightening or body parts, painting, welding, storage of automobiles or trucks not in operating condition or other operation involving noise, glare, smoke, fumes or other characteristics to an extent greater than normally found in service stations. 1 6 Motor Vehicle Service Stations are allowed by right in the EC-5 zoning district. Motor Vehicle Repair Garage - An establishment where the following services are available: major mechanical repairs, including engine overhaul, and transmission work. Repair garages can also offer services similar to service stations. Motor Vehicle Repair Garages, though included in the definitions found in Article 22 of the Zoning Ordinance, are not included in the Permitted Use Table. Uses which are not explicitly permitted by the Zoning Ordinance are prohibited. The Planning Staff does not know at this time whether omission of Motor Vehicle Repair Garages altogether from the Permitted Uses Table was intentional or unintentional. Neither does it know whether the omission of this use from the EC-5 zoning district in the use table was intentional or unintentional. These issues will be researched further and brought before the Board of Commissioners at a later date for the purposes of determining whether or not Motor Vehicle Repair Garages should be included in the Table of Permitted Uses, and if so, in what districts they should be permitted. Land Use Classification of Wilson Property The public hearing record includes the recollection of a number of individuals who have had some familiarity with the historical use of the property. Some witness statements contain no indication of time in relation to the zoning of Bingham Township. In other cases, time estimates were very general, and not tied to a specific date of year. There was also some testimony in which the activities were described as occurring clearly after the zoning of Bingham Township. Even if it assumed that the activities occurred around the time that the township was zoned, then, the Planning Staff finds that activities which have been described as occurring on the property at that time best fit the Zoning Ordinance definition of a "junkyard" . There was evidence presented which indicated some degree of body work and engine repair. Some activities, particularly those related to repair and maintenance of "hotrod" vehicles by their owners could be considered as related to a hobby rather than a business. The Planning Staff finds that these activities would, however, have been incidental to the primary use of the property as a junkyard where vehicles would have been stored and parts salvaged. r • 7 The Planning Staff also considered whether or not the alleged use of the property could be considered as Motor Vehicle Maintenance and Repair (body shop) . Although some activities associated with a body shop were conducted, such as storage of vehicles and some welding, it appears that these activities occurred more in the context of salvage of parts than in body repair of the vehicles stored on the property. Since junkyards are not permitted in the EC-5 zoning district, the Zoning Officer recommends that the property be rezoned to Rural Buffer. , The Planning Board considered the proposed rezoning on July 17, 1995. After considerable discussion (see attached minutes) the Planning Board found that the use of the property when Bingham Township was zoned in 1981 was considered to be Motor Vehicle Maintenance and Repair (body shop) , and that it should retain its current zoning designation of EC-5. The vote was 6 in favor and 2 opposed. RECOMMENDATION: The Administration recommends that the property be rezoned to RB (Rural Buffer) on the basis that the property was in use a junkyard when Bingham Township was initially zoned, and junkyards are not a permitted use in the EC-5 zoning district. R 1 u a JQ MAC MCI 1 6 % p CY __l 1 1 11 YEti4 OL 1 1 1 '• White C i � + ' CIO � 9� f / l ` ' '9qq •pG - t0 '� Q. �q 1 �, °yet► CARL B n lo ftD- OLD tees 0- L :ErseoRO ,(py � 004 Im `f MIJJSRp, g 1 ,/ Uwe ra snow a noun a gnaw a a�j TM'� p a laam a soa Chathm � WA ' ■ ■ County �. Marion Henry Wilson and Nancy Wilson Z-3-95 9 i R � � 1 -s e t a tVo Q � 1 Ln y 41 - cc 00 Q I i • 1 /` R i Gf./ f .•a y � OK n ZZ 10 LAW OFFICES COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN coumm,jR, A PROFESSIONAL CORPORATION GEOFFREY E G=HILL 129 E TRYON STREET DOUGLAS HARGRAVE P.O.DRAWER 1529 Md K STEFFAN HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON (919)732.2196 DOUGLAS P.THOREN FAX(919)732.1997 SAMUEL FLY COLEMAN April 12, 1995 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, COI.EMN GLEDHILL Sc EARGRAVE, P.C. offre E. Gl dhill GEG/lsg 1sq\hcme3\mco11i12.1tr . � 11 LAW OFFICES COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN.JR. A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL DOUGLAS HARGRAVE I29 E.TRYON STREET P.O.DRAWER 1529 )GM K STEFFAN HILLSBOROUGH.NORTH CAROLINA 27279 JANET B.DUTTON (919)772.2196 DOUGLAS P.THOREN FAX(919)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 12 � . 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 CollinsVl*' John M. Link, Jr. 1sg\home3\board17.1tr 13 c • NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE ,.' Superior Court Division- ORANGE COUNTY File No. 93 CvS 911 L?. 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 Superior 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 - — 14 zoning f a 40 000 square foot g q 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 • 15 • (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 • a 16 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 day of F1995 . / � G Cam✓ The Donald W. Steph s J udng 1ag\home3\11oyd.0rd 4 Adooted Minutes - Public Hearing August 24, 1992 - Orange County Board of Commissioners r 17 6 to implement some kind 'of open space area arot nd 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 cn the property, Mr. Cogswell indicated that it would be at least March, 199 1, before any houses are built. DON HILL applaud the plan. He a ljoins 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 XEISTER of Strayhorn Hills tated he moved to this area because of the rural character of the area This proposal will put an imposition on traffic, on getting around, an 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 sta 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 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 s because she feels it is very important to their community. A motion was made by Commissi nor Halkiotis, seconded by Commissioner Gordon to refer this item the Planning Board for a recommendation to be returned to the Haar of County Commissioners on October 5, 1992. VOTE: UNANIMOUS some gTLAS Alor14DliEPf'i'S $;,L 8-3-92 Donald AiYne Coatba In summary this item is to ceive citizen comments on a proposed Zoning Atlas amendment in Bingham T hip. The property is . located - 597.22 Zest west of Ferguson Road d contains 1.84 acres. The property has a width of 200.45 feet and a d th 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 Atla . The rezoning was initiated as a means of resolvinq a zoning viola n involving the storage of automobiles. The applicant alleges that the ezoning will correct an error in the Zoning Ordinance, in that the prop was used for the storage of automobiles prior to the zoning of Bingham T ship in 1981. Planning Staff has been unable to substantiate the applican 's claims through examination of aerial photos. The photographs show that n 1979 and in 1982 there were 18 not any motor vehicles- on the parcel. The Zoning Officer has reviewed the application, the site plan and all supporting 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 being used for insurance purposes where damaged automobiles -are stored unti 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 Office recommends disapproval of the request. CaMMMS OR OVEST. IONS BOARD OF CQ XrSSIONERS OR TRZ VLAWaNG BOARD In answer to a question from Mr. Waddell, Mr. Hinkley stated that the eastern most portion toward Ferguson IDad is -in the upper most area of l:he University Lake. watershed. PUBLIC COMMENTS ROBERT SMITH, lawyer for the C in this matter, stated that the only way Mr. Combs can continue this operat on is to rezone this property to EC-5. This would acknowledge that this wa used for commercial purposes at the time the zoning became effective on eptember 2, 1981. This matter started with one complaint to the Orange C ty zoning office in the fall of 1991. The property was purchased in May of 979 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 calls Orange County and was told that this was a permitted use. He stressed that U this is allowed to be rezoned, it will not be allowing anything new, but 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 additiv after they bought the property, they built a house on the property and tha is where they live. No cars can bl.4een from Ferguson Road. He presented petition with 170 signatures in support of this proposal. If the person w 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 n the property. In response to this complaint, Mr. Combs removed 200 car 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. 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 r 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 and the present zoning. The problem is that there is not a home occupation pe it for storing cars. They went; to the Board of Adjustment which suggested that they apply for a rezoninq. �. • 19 8 - The EC-5 zoning would not .establish a wide-oplin 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 are asking that this error be corrected and that this land be rezoned to EC-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. SAth 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 I is 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 Uat they would certainly try to keep the number of cars down. TROOPER MlRiC 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 the area neat and organized and works well with all the law enforcement age ies. GLBW 871LD1►ZN purchased in 1979 oni 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 they do not bother him now. Mr. Combs in-an excellent neighbor and a fr end. He asked that the Board. vote to allow then to continue to operate i this area. NMY D17WAEY has been a neighbor of Mr. Combs for five or six years.' Mr. Combs in a good neighbor and he upports the rezoning. DM CLARK 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. EDWARD PODSMM 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. EMSON, JR. 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, lair. 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 ed to continue. He emphasized 20 . 9 that Wayne Combs is a man of his word. HQBERT ARRIIiGTON stated that he knew Mr. Martin when he owned the property and he _helped him move some cars n the property in 1979- and 19so. Mr. Combs is a fine person who has a well Drganized place. BARTON 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 ave 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 SADJE=NA owns two lots in e- southwest corner of this area. He asked if the application for a business icense is reviewed and it so why the zoning was not checked. He is in the lvrge 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 lic 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. w=LL=AX FORD owns a large tra t of land west of the Combs' property. He has no objection to the zon q change and feels it is a good use of the property. There have been c there since the mid 5011s. He worked for Mr. Martin since high school. w1xx - -NZLMM 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. . DURII`OOD ROU99 lives on Damascus arch 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 qs to say about Mr. Combs. RElPY XI = , stated that he the son of the man who sold the land to Mr. Combs. The land Was origina 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' 21 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 ants 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 'stance 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 rezo nq the property to EC-5. That factual basis -would be that there was an 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 inp t. Mr. Gledhill indicated that he would put his comments in writing and fo d 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 curt 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, en Kr. 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: zoninq 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. Comsissioners no sooner th October 5, 1992. VOTE: UNANINOUS b. - phase The following people Were sworn in by Bev 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 iten1was presented by Eddie k in order to receive citizen . comment on a proposed modification for an a itional phase to the Heartwood Mountain Planned Development. The appl t is requesting a Planned •a i 22 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 - experimentation 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 Domald Wayne Combs Adopted Minutes (The complete abstract information and Orange County attachments are attachments to these minutes Planning Board on pages .S"!o- (p,7 ) September 21, 1992 Presentation by Jim Hinkley. 1k 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 5. The part of the combs property V--AJ 23 _ 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_b 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 ?r 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 24 v ; 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 basebal•1 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 - a concession stand used in association with the then existing ball diamond. 25 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. S. 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, r-; 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 26 " r 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 i passing of the ordinance. 27 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 SAM e question as Scott. Scott continued that 28 '. he was not sure that a building was needed to operate a business such as a junkyard. Hoecke agreed with Scott. Reid stated that the prior owner did not have a storage building on the site because he had a 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 29 same request today or should that use have one away y 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 30 ` 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 31 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. So if an EC-5 district were created, within that district and within the � _ . 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 32 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 woI 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. He 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 bn them, but, there was no building. i Gledhill asked to make a statement about the 33 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. 34 Reid asked would the county have been at y 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 60's. 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 35 that would bring him back into line, one area 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 I asked Gledhill if it was his recollection that back in 1981 pretty much any area that was requesting an EC-5 got it 36 that the Planning Board turn down the request 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 37 cars. 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. i 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 = 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. 38 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 a. Discussion of Public/Private Roads Issues `- Gray referred to a report by the County Attorney included in minutes of the Planning Board Meeting Adopted Minutes of the Orange County Board of Commissioners 39 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 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 40 Adopted Minutes ( 1 ) Z-3-92 Brenda Carol & Donald Wayne Combs Orange Co. Planning Board Presentation by Jim Hinkley. October 19, 1992 A copy of the abstract information is an 10 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. 41 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. . ,' 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 42 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. 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. Be wished to clarify that at least four adjoining property owners are in opposition to the proposed zoning of Mr. Combs property to EC-5. He 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. 43 He noted that zoning was in place in 1981 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 f ield. 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 44 removed. Eidenier continued asking if Mr. Combs had been a belligerent citizen and difficult to - deal with. Hinkley responded no, that Mr. Combs ti 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 :a 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. 45 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 46 November 2, 1992 6 V. SPECIAL PRESENTATIONS - NONE VI. PIIBLIC HEARINGS A. CONTINUATION OF PIIBLIC HEARING - NOT FOR CITIZEN COMMENTS I. 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 havd1requested 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 46a 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 listed 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) 0 C/v � � r 47 j CCJ TB lVa Cov J - � f 2 7 j�7 ��e C� � 1/7 cl ! , Ufa' C�1� A e �f � v D wad' U0 014 /�� ���wr )G/1-a j zo Z- Ile b�ll 79e c��C Ole c bt ,� l pd one ;� �� ����, bs ,�, Ile, / tv S� YVvr e bs, 48 , r. r - ---------- -- - -- - zlL '� 2( /O;5L kc j- 50 2 Zk, f 4_'1P-L& 4Oe4 Q � . 0 _ 51 "' Habitat for Humanity o ) range County NC 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 storage. 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 tf—ir jobs. He has also allowed those in such emergency situations to def payment for repairs on an affordable basis. Such willingness to he cV pose in tough situations is certainly an important sign about the stre, o' 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" _ L. L. HIDAY. P.A. ATTORNEYS AT LAW 52 SUITE 206 UNIVERSITY SQUARE EAST 123 WEST FRANKLIN STREET CHAPEL HILL. NORTH CAROLINA 27514 (919) 929-1133 L I. HIDAY D. DUNCAN M.AYSILLES March 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 I979_ We thus request a ruling that the use by Combs is a :mon-conforming use within the meaning of :Article. Il of the•0range County .Zoning Ordinance-, Very truly yours, D. Duncan .Maysilles DDM/ada cc: D. Wayne Combs Rt. 1, Box 44 Chapel Hill, NC 27514 UT 20 W. MEMO s ti D �i 53 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 gill, North Carolina, 27514. i I� 2. On May 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 # 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 I 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 1iof repairing vehicles, where possible, and for the eventual sale of parts and scrap. This h / t e � day of March 1984. i . i �.J. B. rtin, Affiant I i i i Sworn to and Subscribed before me 414 �c�.�i�i'/_�� ;✓-'�! Notary Public, this c-� day of March, 1984 ? :.• Notary Pu is ` M Commission expires: OUNCAN MAYSILLES g 20i My p NOTARY PUBLIC DAVIE COUNTY, W.C. �► Jj . OCT 20 L. L. MIOAT. P.A. ATTORNSY, AT LAW Z-.4 UNIV[RS+TT LOUARK r- .22 W. /RANKLIN ST. i C»A►4 HILL. N.C.:r0u ' f, 7 54 September 18, 1992 ,-� :�42 ;�•,� , r' Mr. Jim Hinkley Orange County Planning Department P.Q. 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 1-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 i<was suggested that Mr. Combs is r;arely Conti,.;.ping a nor.confcrming 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 55 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. 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 -- - �-OM CRANGE C ^-, 57 PETITION RE Z-3-92Z0NING ATLAS AMENDMENT REQUEST In the matter of the ZONING ATLAS AKENDMENT concerning the Wayne and Brenda Combs property on Ferguson Road in Bingham Township, we, the undersigned, are unequivocally opposed to the rezoning of the :.ombs tract and we petition the Board of Commissioners tc uphold the PLANNING STAFF FINDINGS AND RECOMMENDATION that "There was -no error Made with respect to this property when zoning was adopted for Bingham Township on September 2, 1981, • We believe. that the absence of automobiles or auto salvage/repair-related structures discernable in! the aerial photographs taken in 1979 and 1982 is sufficient evidence in and of itself to refute claims that the property was a site of commercial activity. In regard to Mr. Comb's contentions which conflict with the evidence of the Photographs that the property was not a site of commercial activity we question the applicant 's veracity with regard to the fl activity on 9/2/n& I. On an application made 3/22/90 for a building permit for the on the property, Mr. Combs stipulated that the a used he built owner's own cars. " garage "will be used to store 2. At ,the hearing held oR August 24, 1992 it was represented that there were no employees working on the property other than members of Mr. Combs family. On a visit to the site on October 21, 1991, the Orange County zoning administrator found that the above-mentioned garage had three bays and was equipped with "two lifts and other heavy auto maintenance and repair, equipmerit, ..a machine shop and tool area, office area, and a write sign ;raen and red lettering advertising INTERSTATE BATTERIES mounted on the w ,acade' .and "four people working in the garage".' On Au r<<st 31, 1992, the zon.6 found that a s administrator again visited the cite an-,second business, Hike's Auto Service, was in business using the garage on the Combs. premises. i S. The undersigned believe that in addition to the storage, salvage and repair Q4 vehicles on the site, the Property has been used as a site to display 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 licensable .without a change in zoning. The EC-5 zoning would allow Mr. combs t property,c have an automobile sales business as a Permitted use on the ----------- - -- - - - - -- - , ��------- --------- .y CHAPEL. I'.ILL rCl. ICE DErAR. _NT 828 AIRPORT ROAD atAPEL HILL, NC 27514 l 58 (919) 968-2760 December 17 , 1991 f 1r . Wayne Coi+bs WF!stside Towing 1300 Ferguson Rd. , Chmiel Hill , NC 27514 Dear- Wayne: This letter confirms or rr telephone conversation of December 1 1 , 1991 , ELga► ding the p c 1 icy change for towing of abandoned vehicle.s. Effective inmediately abandoned vehicles will no 1^r,g°r ',e stored at the Crape 1 Hill ro l i ce Department C,orrpound Lot. Abandoned vehicles shall be towed to your company's storage f a c i l i t y. Your carpany w i l l receive the towing fee for removal of the vehicle. After- thirty (30) days you can apply a Mechanic' s Lien on abandoned vehicles and then dispose of properly. Yor.rr- company' s wrecker driver will be advised by the police officer when a vehicle is considered abandoned and should be towed toy .n The definition of an abandoned vehicle is: "a vehicle of any kind" vAlich _ = is parked or left standing "upon any public street" or ►-fight-of-way and "wane urrroved for a per iod of time in excess of forty-eight (48) hours." (Sec. 2' '22 Town Code of Ordinance. ) After due process of law such vehicle may be rci►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. Sintnons Support Services W„iS: jmw 59 rFFIDr,L'I` OF WAITER MCF; LL My name is Walter McFall . I am familiar with' the property on Ferguson Road now owned by Wayne and Brenda Combs . I worked Z or the former owner, J. B. Martin, starting in 1975 , and re- member when he bought the property . He bought it to move his 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 we_e a lot of cars out there , at least 25 or 30 ; enough to be a salvage yard. There was a lot of other Dunk there , too; pieces of lumber, tractor parts , etc . J . B. was a path rat and never threw anything away, and the number of cars out at his land always went up , it never went down. This the day of December , _: WALTER MCFALL Sworn to and subscribed before me this day of Notary Public My Commission Expires : 7/4� -' ' i 60 AFFIDAVIT OF WILLIAM C. FORD My name is William C. Ford. I am familiar with the property. at 1-1100 Ferguson Road now owned by Wayne and Brenda Combs, and have been for over 30 years. I have lived in this part of Orange County ail 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 vears, 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. --•7 This the day of 1991 . WI,.LIAM C. FORD jSwarn tq,%an6rs;}bscribed to befo�e``' �. tfi �,`'�. �.j`day of �� . r;'' 1991. r '1 No Gr rte.`$ o i c ,: , 61 ROBERT H. SMITH ATTORNEY AND 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 Nillchnrnttoh: 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 P-ry+�trul ovr , Robert H. Smith /kms 62 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 far him. we needed a place to put cars, and bought this land for the purpose o: having a salvage varc 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 told 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 to 1: cars out there. More cars were taken out from time to time and cars were almost never taken off of the land. Vnen my parents owned the land, I went out there at least once a week, and sometimes as much as 10 times a week. Weer. 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 1991. .=2�6' i KENNETH H. MARTIN Sworn to and subscrib e to before me this the / day of C/u 1991. Notary Public *lv Commission ..xpires: 47���ts 63 AFFIDAVIT OF DORIS H. MARTIN 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 Toy.-reship on Ferguson Road. This tract was sold to Wayne and Brenda Combs by us in 1983, and a copy of 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 Mt. Carmel Church Road, and needed a place to store cars. This the i/ day of y"';��, , ✓��tL 1991. DORIS H. M_?RTIN Sworn to and subscribed to before me this the 1 day of ()C/ 1991. Notary Public My Commission Exg�'res: 64 AFFIDAVIT OF HERBERT ARRINGTON My name is Herbert Arrington. I was a good xriend 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 store cars, and also was planning to build a car repair shop there. I went to this land with J.B.Martin at least 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 a: it , or to look for a part from a junked car which was on the land. Each time we staved 30 to 45 minutes. The 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 on 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 ac that time. I have been on the property several other times between the time Wavne and Brenda Combs bought the property and the present, and there have always been junked cars stored on the property. This the day of _/U/ 0­0 1991. HERBERT ARRINGTON Sworn to and subscribed to (/ before me%I .s the day ��f+, yi 1991. NOTARY ra Nrca P Lit 1 My .3eior• es _ 65 I i i I 1 STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 2 COUNTY OF ORANGE FILE NO. 93-CVS-911 i 3 I 4 BARTON LLOYD, JR. ; RANDAL I WHITEHEAD; and GARY 5 ZADJEIKA, I 6 Plaintiffs, I i 7 VS . I 8 ORANGE COUNTY; ORANGE COUNTY BOARD OF 9 COMMISSIONERS; and MARION HENRY WILSON, JR. , 10 Defendants . 11 i 12 I 13 14 15 D E P O S I T I O N 16 0 F 17 M A R I 0 N H E N R Y W I L S O N, J_R. 18 19 20 21 22 In the Offices of Barrett & Associates 204 Henderon Street 23 Chapel Hill, North Carolina 24 August 19, 1994 9 :30 a.m. 25 i f P O BOX 2056 P.O BOX 560937 CHAPEL HILL, NC 27515 L cl e n lt i nt t t i t:c/ CHARLOTTE. NC 28256 (919) 933-2115 (704347.1039 • 66 MR. WILSON DIRECT Page 25 1 be in business . But I have no idea what went on about 2 that: part . 3 Q During the time that Kenny Martin, the son, 4 was operating basically out of his father' s shop, did 5 Kenny Martin, the son, make any comments to you about 6 this; property out in the country used for putting the �1 7 cars? 8 A That was so vague that I--about, like I say,-- 9 other than the fact that it was mentioned, is all I can 10 tell you. I 11 Q So primarily your awareness of this lot out ' 12 here in the country was from the father more than from 13 the son? i I -4 A Kenny may have mentioned it, but I can' t 15 honestly tell you. 16 Q Do you know whether--do you have any personal 17 knowledge that he actually used it when he was working 18 out of his father' s place? 19 A I can' t honestly say he did or did not. 20 Q Let me fast forward a bit, then, up to the 21 time of October and November of 1992 when you say that 22 you became aware that' Mr. Combs had decided to try to 23 sell his property. 24 How did you come to know that or become aware 25 of it, sir? File No- 93-CVS-911 Date 8/19/94 P.O. BOX 2056 P.O. BOX 560937 CHAPEL HILL. NC 27515 Bode rtfze in,z l fiCutim c�_qe12oatirty CHARLOTTE, NC 28256 (919) 933.2115 (704) 347-t039 r• MR. WILSON DIRECT Page 26 I _ 1 A Through two ways . We had an old Chrysler. F � 2 One of the boys that worked with me, we couldn' t find " 3 parts . I thought Wayne may have it, and my partner 4 went to see Wayne, I' d 'never been over there, and got 5 the part, and from a conversation that they had had. 6 Wayne stopped by the shop, and I talked to him 7 one evening after work--or I say "I" ; me and my partner 8 both talked to him. 9 Q Mr. Staples is the partner you' re referring 10 to? i 11 A Yes . 12 Q And is Mr. Staples still your partner in the 13 . business? 1a. A No- 15 Q When did he leave the business, sir? 16 A Basically the same time that I bought Wayne' s 17 place. 18 Q was he part of the decision to buy the 19 property with you? 20 A Yes. 21 Q But he wasn' t a party to the purchase or, 22 excuse me, was he a party to the purchase? 23 A No. 24 Q Why not? 25 A From some financial problems . He realized he Filp Nn_ 9-4-CVq-911 Date 8 /19/94 P.O. BOX 2056 r P P.O. BOX 560937 CHAPEL HILL. NC 27515 LOC�en�ein!e: ���e,I,a tin! C= e%01tiI!y CHARLOTTE. NC 28256 (919) 933-2115 (704) 347.1039 68 MR. WILSON DIRECT Page 27 1 could not swing his half of it, and we, at that point '` ' f 2 in time, agreed upon that if I could afford it--that 3 the corporation was unstable--we' d just lease the 4 property from me . That was an agreement at the time. 5 Q Is that the arrangement today? JI 6 A. No. 7 Q ' Is Mr. Staples--does Mr. Staples still have 8 any interest in the corporation? 9 A No. ) 10 Q What was the--do you recall what Mr. Staples } 11 heard or was made aware of by Wayne Combs that made him 12 come :back and tell you the property might be for sale? 13 A Evidently when .he had mentioned something to 14 David, and I, in turn, called Wayne and told him I'd ; i 15 like to talk to him about it. I 16 Q Do you recall what David told you he had heard 17 about the property' s availability? 18 A That it may be for sale. 19 Q Did he tell you why it might be for sale? 20 A That' s the reason I called Wayne. 21 Q What did you hear from Wayne when you called 1 2 him? 23 A Like I say, he stopped by that evening and 24 said that he was considering selling it with the proper 25 zoning, and I told him if he did, I was interested. pilp No- 93-cVS-911 Date 4 P.O. BOX 2056 P P.O. BOX §60937 CHAPEL HILL. NG 27515 SodEnf2eime, W.—tLttim ef\ e/ioitin y CHARLOTTE. NC 28256 (919) 933-2115 (704) 347.1039 MR. WILSON DIRECT Page 28 r 1 Q When you say, "considering selling it with -the 2 proper zoning, " what did that--what did you mean by 3 that, sir, or what did you--excuse me--strike that . 4 What did you understand Mr. Combs' meant by a 5 the phrase "with the property zoning"? 6 A Well, it may not be--may or may not be his 7 exact words. I think Wayne was loosing the--he was in 8 the junkyard business . I am not, but even with the 9 zoning, I think it was going to put what he had out of 10 business. 11 _ Q Was there--excuse me--had he made an 12 application for rezoning by that point? 13 A Other than just hearsay and what I heard from 14 different individuals, this was the first contact of 15 any that I'd had with Wayne over the problems or is 16 anything else. t7 Q What did he tell you about those problems at t8 that point, that day that he came by that evening? 19 A Nothing, other than, you know, I think, it was 20 in the process of being rezoned, and that if everything 21 went .through, he may consider selling the property. 22 Q So the evening that he came by, which was the i first discussion you'd had with him about this 24 property, you understood from him that there was a 25 rezoning process underway; is that correct? File No- - - Date 8/19/94 P.O. BOX 2056 �� ( �,� r �� P.O. BOX 560937 CHAPEL HILL, NC 27515 mot ert :eintet et atint G\ epo%tiny CHARLOTTE. NC 28256 (919) 933-2115 (704) 347-1039 70 MR. WILSON DIRECT Page 29 A Yes . 2 Q I mean, this roughly November--October, 3 November 1992, the fall of 1992? 4 A Yes .. ^" 5 Q Am I correct in understanding that he also 6 made you aware that there were some problems of some 7 sort? 8 A My understanding at that time was just that it 9 was overlooked from the County because it was not seen. i0 Q Did he tell you at all that the County staff 11 had given him notice that it was nonconforming? 12 A He didn' t go into any of those details . 13 Q Did he tell you that, though? 14 A I said no. 15 Q Not even in a general way? 16 A No. 17 Q At the time that you were looking for other 18 properties, were you using--at this time that you were 19 looking for other properties, were you using a real 20 estate broker? 21 A The properties we looked at, no. I had asked 22 Mickey Vernon if he ran across any commercial property 23 to let me know. He never found any. 24 Q How did you and Mr. Combs proceed? Please 25 describe the discussions you had after that evening Date 8/19/94 P.O. BOX 2056 n / ) p P.O. BOX 560937 CHAPEL HILL. NC 27515 CHARLOTTE, NC 28256 (919) 933-2115 (704) 347-1039 _ r 'MR. WILSON DIRECT Page 30 ' 1 when you first talked to him but prior to your _ 2 purchase . 3 What kinds of meetings or discussions did you ''y 4 have about the property? 5 A After that, I did go out and look at the j 6 property. And I don' t know the exact dates, but once z 7 it was zoned EC-5, I was=-Wayne told me that there was ?. 8 another party that had first option. 9 So.- there was a span in there I was waiting to 10 find out what was going to be resolved with this 11 Q Between the time--when you went out to the 12 property to take a look at it, was Mr. Combs there that 13 day? 14 A He was working. ! i 15 Q Did you have any discussions with him about 16 the property or- 'about the accounting process? 17 A No, mainly I was--just wanted to see what type 18 of building he had and what was there. 19 Q Did you go in the back part of the property to 20 look at where the cars were sitting? 21 A There was quite a few cars at that point in 22 time. 23 Q By "quite a few, " do you have an estimate of 24 how many? 25 A I wouldn' t even begin to count that many. File No- 91-=-911 Date 8/19/94 P.O. BOX 2056 / P.O. BOX 560937 CHAPEL HILL. NC 27515 Sodtnpp tintt CHARLOTTE. NC 28256 (919) 933-2115 (704) 347-1039 — � 72 MR. WILSON DIRECT Page 31 1 Q A couple of hundred? E 2 A At least . 3 Q Did you have any other discussions with Mr- 4 Combs about the property between the day that you i 5 visited it and the time when the County Board of 6 Commissioners voted to rezone it? 7 A You' re backing up from what I was telling you. 8 The zoning had already occurred, and he had another 9 party that had first option. 10 And then when the first party did not come up 11 with the money, Wayne called me back, and he also--at 12 that time, he had turned it over to a real estate 13 agent . t 14 Q When you first talked with him, the property 15 was not yet rezoned. When he came by that evening, 16 there-was still a County process going on; is that 17 correct? Am I--is that correct?, 18 A I think so, yes. 19 Q Are you saying that when you went out to take 20 a look at it, the Board of Commissioners had already 21 voted to rezone it? 22 A I don' t think that it'd been rezoned at that 23 point . 24 Q So my question was, from that point when you 25 went: out just to eyeball the place until when they did Dat A/19/94 P.O. BOX 2056 / P ( p P.O. BOX 560937 CHAPEL HILL, NC 27515 �oC�inhEimf% AzL,atini 4WE11, 1tiu� CHARLOTTE. NC 28256 (919) 933-2115 (704) 347-1039 73 ROBERT H. SMITH ATTORNEY AND COUNSELLOR AT LAW 312 WEST FRANKLIN STREET CHAPEL HILL,NORTH CAROLINA 27616 TELEPHONE(919)967-2200 TELECOPIER(919)967-4933 June 26, 1995 Ms. Mary Willis Orange County Planning Dept. PO Box 8181 Hillsborough, NC 27278 Re: Z-3-95 Marion Henry Wilson, Jr. and Nancy Wilson Dear Ms. Willis: Enclosed please find additional information which we are submitting for consideration by the Planning Board and the Board of Commissioners. We ask that you forward it to them. Thank you for your help in this matter. Very truly yo , P4;��,Robert H. Smith RHS/mr cc: Mr. Geoffrey Gledhill PO Drawer 1529 Hillsborough, NC 27278 Mr. Grainger Barrett 204 Henderson Street Chapel Hill, NC 27516 Mr. & Mrs. Henry Wilson 2615 Jefferson's Choice Chapel Hill, NC 27516 74 Walter T . McFall IV 5909 Orange Grove Road Hillsborough, N .C . 27278 June 6, 1995 Orange County Board of Commissioners P .O. Box 8181 Hillsborough, N .C. 27278 Dear Commissioners: This letter is in reference to a request to clarify the use of land owned by J.B. Martin on Ferguson Road. This property was used as a storage lot for cars and other property that J .B. did not have space for at his home . The purpose was to have spare parts for future use. J .B. Martin sold parts off cars there, as well as removed parts that were taken to the Mt . Carmel garage. As early model cars were sold for scrap, special body parts were hard to come by. This is why the cars were kept and used at the Ferguson Road property. If I can be of additional help, please contact me at address above . Sincerely, b�77 A/1 C Walter T . McFall IV 75 NORTH CAROLINA ORANGE COUNTY A F F I D A V I T My name is Russell Garrett. I am currently employed by the Chapel Hill/Carrboro City Schools. I graduated from Chapel Hill High School in 1974 in the class with Kenny Martin. I know about the land that his father owned on Ferguson Road in Orange County starting around 1980. This land was owned by them as part of their automobile business. In the early 1980 's, a group of us used to work on cars frequently on this property. Three of us had Dodge Chargers and we had a club where we had some different colored cars. I went to this property all the time to work on the cars. Usually on the weekends we spent one whole day out there and we often went on week nights. Body work was done out there all the time. We would do things like fix dents in a body panel and straighten body parts out. I remember using a hammer and spending a lot of time hammering on body parts and also using a grinder or a sander to smooth out body parts. We also did some painting after we fixed the body parts. Mechanical work was also done such as rebuilding engines, tearing cars down and rebuilding transmissions. All we ever did on this property was work on cars. There was no other reason for going out there. This the 4rv, day of i 1995. RUSSELL GARRETT 0gi'*�PBF2'lf�,` `;.and Subscribed before this the 9,tw� day of 1095. Y r 7f j N a 1'c My ires: l%l��t� 4 76 Residential. The zoning designation requested is for I-1 Light Industrial. Access to the proposed zoning lot is from the east side of NC 86 North. The proposed rezoning would be consistent with the Comprehensive Plan. COMMENTS OR QUESTIONS FROM THE BOARD OF COUNTY COMMISSIONERS OR PLANNING BOARD Commissioner Gordon asked about other businesses in the area and Jim Hinkley said that he is only aware of Major Business Forms . Commissioner Crowther asked about the business license mentioned in the application and Mr. Hinkley said that Mr. McBroom was asked to renew his business license and that is when they discovered that he was in violation of the Zoning Ordinance and the only way it could be brought into compliance was to rezone the property. 'Commissioner Willhoit asked what kind of provisions are there for setbacks and if there are further rezonings what kind of provisions are there for adequate buffers, right-of-way or space available for a turn lane. Jim Hinkley said that the minimum requirements for this type of use in the comprehensive plan is that the road needs to be a rural minor collector and N.C. 86 meets that requirement. The frontage required for an I-1 zone is 200 feet. Commissioner Willhoit questioned if all the property in that area was developed as industrial type property, would they be served by regular driveway cuts and Jim Hinkley said yes. He said that there is no restriction on the amount of acreage that may be rezoned. Planner Mary Willis explained that in the Rural Industrial activity nodes there is not an acreage limitation. There is a radius limitation which she believes in a quarter mile from the intersection. In the Rural Commercial activity nodes there are acreage limitations. MOTION FOR BOTH D-1 (a) (b) A motion was made by Chair Carey, seconded by Commissioner Willhoit to refer items D-1 (a) and (b) -to the Planning Board for a recommendation to be returned to the Board of Commissioners no sooner than August 5, 1995. VOTE: UNANIMOUS c) Z-3-95 Marion Hen Wilson, Jr. and Nan Wilson Planner Mary Willis presented information on this item as contained in the agenda. In summary, on November 2, 1993, the Board of County Commissioners approved the rezoning of 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 to Existing Commercial. This was done on the basis that it was determined that the operation had been in place prior to the adoption of zoning and should have been zoned EC-5 Existing Commercial at the time the township was zoned. This decision to rezone was appealed to Superior Court. The Court ruled that the evidence submitted during the public hearing was insufficient to justify the rezoning of the property and sent the case back to the Board of County Commissioners for further consideration. The purpose of this hearing is to provide an opportunity for any new information to be submitted regarding the use of property when the township was zoned in September, 1981 . The staff does not have a recommendation. If based on new evidence received at this hearing, the Board of County Commissioners find that there was a commercial use 5 77.. allowed in the zoning district and thatuse existed on the property September 2, 1981, then the Zoning Officer would recommend that the current zoning of EC-5 remain. If there is not new evidence presented at this hearing that would show that the commercial use was in place on this property at that time, the staff recommends that the property be rezoned back to Rural Buffer. County Attorney Geoffrey Gledhill clarified that the Board can consider the information that is in this packet even though the Court deemed it to be insufficient. However, the Board will need additional information on which to base their decision. THERE WERE NO COMMENTS OR QUESTIONS FROM MEMBERS OF THE BOARD OF COUNTY COMMISSIONERS OR THE PLANNING BOARD NOTE: THE VERBATIM TRANSCRIPT OF THE FOLLOWING COMMENTS IS IN THE PERMANENT AGENDA FILE IN THE CLERK'S OFFICE. THE COMMENTS LISTED BELOW ARE SUMMARIZED. Marion Henry Wilson, Jr. , present owner of the property, said that the business they run is not a salvage yard but a small automotive repair shop. He presented for the record pictures of his property, property adjacent to his and pictures of other businesses in the area. Mr. Daryl Farrell, next door neighbor, said he owns the land on the right side of Mr. Wilson. Personally, he does not have a problem with his business being next to him. He feels Mr. Wilson is a very good neighbor and conducts his business in a matter which he thinks he should. In answer to a question, Mr. Farrell said he purchased his land in March, 1994 . He also responded to another question saying that he had knowledge of Mr. Combs prior to graduating from high school. He had been out there looking for old parts when he was in high school and he remembered talking to Mr. Combs . He did not have his parts but he thinks they were working then. This was back in 1979. Larry Reid asked for clarification in that the attorney said that they have to have new evidence for the rezoning situation. He asked if they were looking for receipts during the years 1980 and 1981 to prove that there was a business actually being conducted there. He stands firm that there was a business there. He is not sure if it was being conducted in a way that it is perceived to be conducted today. But if it is a matter of digging up receipts, then he believes he can do that to verify that Combs did some work on a vehicle of his. Geof Gledhill clarified that any new evidence can be considered including receipts or anything else that proves that there was an existing commercial use on this property prior to 1981 . Karen Barrows asked for clarification and Geof Gledhill said that the EC-5 zoning district has to do with commercial permitted uses. There was no evidence, for example, of a bank, financial institution, etc. Since there is no evidence that any of these uses existed, then this property cannot be zoned EC-5. 6 78 Larry Reid said that the argument that came before the Planning Board was that it was not presented correctly. He understood that there had to be a business existing there at the time the area was zoned. He did not understand it had to be a permitted use specified for the EC-5 area. Geof Gledhill said that if the claim is that there was a body shop there then there must be evidence that there was an auto body shop there. If the claim is that there was a bank there then there must be evidence that there was a bank there. That is the jest of what has to happen. Mr. Reid' s testimony last time was not sufficient and there was not any other evidence to prove what was there. A salvage shop is not a body shop. In answer to a question from Chair Carey, Geof Gledhill indicated he does not know how storage of goods is defined in the ordinance. The use table was developed in 1967 and the Zoning Ordinance was codified in 1981 and it was changed somewhat. It was not developed by going around to see what uses existed. Grainger Barrett, Council that argued this case for the people that made the appeal asked to reserve the right to come back. He directed the court' s attention to a provision in the Ordinance that expressly says that uses which are not permitted in a particular district are expressly found to be incompatible with that district and the evidence before the court basically resolved that this business was a salvage yard which is not permitted in the EC-5 district. The judge said that taking parts off of a car is a junkyard use and therefore he sent it back here tonight to find out if there was other evidence that Mr. Wilson and Mr. Combs could present on some use that was permitted in the EC-5 district. Donald Wayne Combs, previous owner of the property, said he sold the property to Mr. Henry Wilson. He bought the property from Mr. J. B. Martin and at one time he worked for Mr. J. B. Martin. J. B. Martin owned the property and had cars out there, restored wrecked cars and worked on cars. When he owned the property he did away with the salvage yard and rezoned it to commercial. He sold it to Mr. Wilson to get away from Buz Lloyd who would not leave him alone. There were cars worked on and stored there before there was any zoning at all in the township. In answer to a question from Commissioner Willhoit, Mr. Combs said he sold the property two years ago. He owned the property when the Board of County Commissioners zoned it and did away with the salvage yard and zoned the garage and one acre of land commercial. In answer to a question from William Waddell, he said that there were cars parked there that were wrecked. There were motors taken out of cars and put in other cars and fenders taken off of cars and put on other cars and rearends, transmissions and stuff like that. Mr. Waddell asked if there was any recollection of Mr. Combs taking parts off of cars that were there and transporting parts to another place and Mr. Combs said no he put the parts on right there. He also had another little garage on Farington Road where he worked on cars. If one was out there wrecked and he needed the motor, he would go out there and pull the engine out of the wrecked car and put it in another car and at that time he was working for Mr. Martin. That was in 1976 or 1977 . Commissioner Crowther asked if Mr. Martin received money for this and Mr. Combs said yes . Commissioner Crowther asked if there were any receipts available. Mr. Combs said that Mr. Martin is dead and he has no idea. 7 79 - Commissioner Crowther asked if Mr. Martin had a business license and Mr. ` Combs did not know. Mr. Smith, attorney for Mr. Wilson asked if they used cutting tools to cut apart cars and Mr. Combs said yes . Mr. Combs was asked if he had receipts and records when he owned it and he said yes . Mr. Robert Smith, attorney for Mr. Wilson, said he was at the public hearing at which the property was eventually rezoned for Mr. Combs . At that hearing they focused basically on the salvage yard because that is what Mr. Combs was doing at the time. He honestly felt that there was sufficient evidence that cars had also been worked on but obviously the judge felt different. Part of the problem is that there is an unusual set of definitions in the Zoning Ordinance. There is a category called motor vehicle maintenance and repair which sounds like the more traditional working on cars but is somewhat defined more like a body shop. There is another category in the Zoning Ordinance which sounds more like the traditional working on cars which says motor vehicle repair garage which includes major mechanical repairs, engine overhaul and transmission work. For some reason, that is not in the permitted use table. He feels that it was probably intended to be part of the EC-5 but it was not. Mr. Reid has mentioned that he may have receipts which may prove some of this activity. He also talked with Mr. Reid' s brother who stated he was also familiar with this property. He will submit testimony later either by affidavit or letter. Larry Reid said that his brother Michael and a friend David Nickinson both had hotrods or race cars and Mr. Martin' s son was also a race driver and they swapped parts pulling parts off of one car and putting on another. He is almost positive that he has the receipts. He had several parts replaced on his car. He said that he guarantees that money changed hands. He was asked if his brother could have swapped a part and Mr. Reid said no. He paid for some parts but he is not sure which parts . Barton Lloyd said that he owns land adjoining to what was then Mr. Combs' operation. There seems that there are two or three basic issues in question at the moment. One is the definitional issue of did the activities alleged to have taken place on the property up to and since 1981 constitute what is required to justify an EC-5 zoning. Before Mr. Wilson purchased the property, Mr. Lloyd made it clear to the real estate agent who listed this property that he intended to appeal the rezoning decision. His concern is that the piece of property that he developed and invested in adjoins a piece of land which, by consensus of an attorney representing either Mr. Combs or the previous owner Mr. Martin and the staff of the Planning Department of Orange County, was a noncomforming use. He was motivated to file the complaint only when Mr. Combs clear-cut an additional acre of land and through a barter arrangement had the topsoil striped in return for the grading and clearing of the land and proceeded to fill up this additional acre with more motor vehicles. He summarized some of his concerns with the original rezoning which was based largely on the testimony from Mr. Combs. It is in the record from previous hearings and meetings that Mr. Combs operated his business lacking the appropriate licensing to do so. To the best of his knowledge, he never filed to pay a business tax in Orange County. There is no public record that he operated a business there at all. He mentioned a building permit in which Mr. Combs stated that the structure was estimated to cost $2, 000. Mr. Lloyd said that he hopes all parties concerned, the Planning Board and the Commissioners will remain focused on 80 8 the issues and the definitional issues and not get sidetracked by the pleas for personal sympathy. In answer to a question from a Planning Board member, Mr. Lloyd said he was not sure he discussed the uses in great detail with the discussion he had with Mr. Collins and Mr. Gledhill. Although he thinks the presumption among them was they were talking about something that would allow continuation of Mr. Wilson' s business. What they focused on were possibilities that would allow him to continue the business for a finite period of time and at the end of that time, the use would stop. Geof Gledhill said, so that everyone would know the context in which these discussions took place, this case was referred to arbitration and mediation. They spent about a half day in mediation in an attempt to reach an agreement on how to resolve this situation. Mr. Lloyd' s recollection of the offer is accurate. It was to allow Mr. Wilson to continue his present use of his property for some period of time. Geof Gledhill said that any proposed mediation agreement would have had to come back to the Board of County Commissioners for consideration if there had been an agreement and there wasn't. It has nothing to do with whether the property ought to be or ought not to be rezoned. Grainger Barrett said that the context of this basic issue is a question of whether there was a manifest error in the Zoning Ordinance when zoning was applied to this township back in 1981 . He introduced into the record a copy of the building permit application of 1990 which Mr. Lloyd referred to above. He outlined the events that led up to the time the building permit was issued. He also introduced into evidence certain pages of a deposition of Mr. Wilson in which he states four or five times that he discussed before the rezoning decision with Mr. Combs the sale of this property. In his testimony at the Planning Board at the public hearing, he said this property was used for storing junked vehicles . That is all he said this property was ever used for. He thinks that this kind of testimony is less than substantial when it is given to the Board of County Commissioners in this context tonight. In Mr. Reid' s testimony, the reference he makes are that all he ever saw out there were junked cars . He makes clear on page 87 that Mr. Martin, Sr. , actual garage was on Mt. Carmel Church Road where parts for the repair came from the area in question. He agrees with Mr. Smith that there is a definitional issue that the Board will have to confront. He contrasted the definition of a junk yard with that of a body shop. He suggested that working on hotrods was a hobby and not a commercial activity of the type being talking about. Commissioner Willhoit made reference to page 101 of the agenda, affidavit signed by Mr. Martin in 1984, item 5 where he says he stored numerous used junked vehicles on the six acres for the purpose of repairing vehicles and asked for clarification on how that fits. Geof Gledhill said that Judge Stevens' view was that it did not provide evidence that there was bodyshop work being done on this property. The problem with noncomforming use is complicated. There cannot be a noncomforming junkyard use because under Orange County's Zoning Ordinance, a junkyard is a special use and Orange County does not recognize special uses as noncomforming. Therefore, there is no way to make this use noncomforming under the County' s Zoning Ordinance. 9 81 ; Mr. Baton Lloyd presented aerial photographs taken of the site at various dates. The first three show no motor vehicles and the last two or three show that there were motor vehicles on the property. He submitted these photographs into the public record. MOTION: A motion was made by Commissioner Crowther, seconded by Chair Carey to refer the proposed Zoning Atlas amendment to the Planning Board for a recommendation to be returned to the Board of County Commissioners no sooner than August 3, 1995. VOTE: UNANIMOUS d) Z-5-95 Piedmont Quality Electric Planner Emily Cameron presented information as contained in the agenda abstract. In summary the property is located in Cedar Grove Township at the southeast corner of NC Highway 86 North and Walnut Grove Church Road. Adjacent land uses include a County-operated solid waste convenience center, a store zoned Neighborhood Commercial, residential and agricultural land. The County proposes to rezone one acre to Neighborhood Commercial to correct an error in the Zoning Atlas which was discovered by the Planning Staff on April 26. THERE WERE NO COMMENTS OR QUESTIONS A motion was made by Chair Carey, seconded by Commissioner Crowther to refer this proposed Zoning Atlas amendment to the Planning Board for a recommendation to be returned to the Board of County Commissioners no sooner than the next available Board of Commissioners meeting following the Planning Board recommendation. VOTE: UNANIMOUS 2. Amendments to the Orange County Zoning Ordinance a) Article 8.2 Special Uses Information on this item was presented by Planner Mary Willis. In summary 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. THERE WERE NO COMMENTS OR QUESTIONS A motion was made by Chair Carey, seconded by Commissioner Crowther to refer the proposed amendment to the Planning Board for a recommendation to be returned to the Board of Commissioners no sooner than August 3, 1995. VOTE: UNANIMOUS i 1 S July 17, 1995 Planning Board M.imites 82 Katz asked that Hinkley describe the current use of the property and the proposed change. Hinkley responded that an automobile sales lot has been on the lot since 1983. Mr. McBroom had no trouble until this year in having his DOT sales license and permit applications and renewals. Agencies are now reviewing more closely to determine whether businesses are in compliance with local zoning ordinances. DOT determined that Mr. McBroom's property needs to be rezoned before they will reissue his sales license. Mr. McBroom is requesting the rezoning to correct a zoning violation of which no one was aware until he applied for the renewal of his sales license. There have never been more than four cars on the lot at any time. Price asked what effect rezoning this lot would have on the surrounding residential. Hinkley responded that the Comprehensive Plan shows this property to be within a Rural Industrial Activity Node. Price continued asking about future residential use of the lot. Hinkley responded that the portion of the lot for which the rezoning is being requested is vacant. Waddell noted that this is a large lot on which a smaller zoning lot is being superimposed. For clarification, Willis stated that, if the request is approved, the one lot owned by McBroom would contain two zoning lots and would be viewed separately. The appropriate criteria would be applied to each zoning lot. The residential lot will not be affected by the I-1 Light Industrial lot. Motions and votes on findings of fact as follows: MOTION: Reid moved findings in the affirmative for Article 20.3.2. Seconded by Howie. VOTE: Unanimous. MOTION: Reid moved findings in the affirmative for Article 4.2 (b) 1,2,3. Seconded by Allison. VOTE: Unanimous. MOTION: Reid moved approval as recommended by the Planning Staff. Seconded by Katz. VOTE: Unanimous. (3) Z-3-95 Marion Henry Wilson, Jr.& Nancy Wilson 83 l Presentation by Mary Willis. This item is to consider the rezoning of a .92- acre parcel (6.37B. .6A) from EC-5 Existing Commercial to RB Rural Residential. 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. 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 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 it is destroyed and allowing it to be replaced with any other use allowed in the EC-5 district. (A list of permitted uses in the EC-5 district is an attachment to these minutes on pages . ) 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. Brown asked who brought the court case. The 84 response was neighbors represented by attorney, Grainger Barrett. Katz noted that there is a land use category in the Zoning Ordinance of motor vehicle repair garage that is defined, but it is not permitted in any zoning district. Willis agreed, noting that it is defined in the Zoning Ordinance but is not included in the permitted use table. Any use which is not explicitly permitted by the Zoning Ordinance, it is prohibited. Willis continued that is an issue that will be reviewed to try to determine if it was an omission or if it was intentional when the ordinance was adopted. Katz noted that he felt it was not intentional, however, he found it very difficult to make a decision since he felt that motor vehicle repair garages should be allowed in some areas. Willis pointed out that, regardless of which districts the repair garage may or not be allowed in, the primary use of the property was found by the staff to be a junkyard with some of the other activities being accessory uses. Reid asked if this case could be compared to the McBroom case, and, whether Staff would have made make recommendations to bring it into compliance if it had not already been challenged in court. Willis responded that there was a lot of difference between this case and the McBroom case; particularly, that the McBroom case is located in an activity node where commercial zoning is consist with the Comprehensive Plan. Reid expressed concern that the case had previously been presented that, if it could be proven a business had existed, it could remain in an EC-5 designation. Willis responded that the main question that Staff had concentrated on was whether or not there was some kind of business on the lot. In reviewing the case now, it would have been better for Staff to look more closely at the alleged use category as well. Reid continued that the information presented thus far, still indicated to him that a business was in effect with the zoning effect. Willis responded that the critical issue is whether the use is permitted in an EC-5 district. Allison asked if, at the time the rezoning was requested, it had been proven that body work was done at the site, would that have made a difference in the Staff's recommendation. Willis responded that the decision made by the Planning w 85 Board and Board of Commissioners was that a business was in operation. She reminded the Board that the Planning Staff had made the recommendation previously that the request for an EC-5 district designation be denied. Waddell referred Board members to the last sentence in the court order from Judge Donald W. Stephens which states: "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. " Waddell emphasized that the Judge had made a ruling and clearly expected more evidence if the EC-5 designation was to be allowed to remain. Willis stated that when the described activities and the aerial photos were studied, the use would best be described as a junkyard. Discussion followed regarding the consistent use of the property as well as discussion as to whether or not it is and/or has been a junkyard. Willis responded that the issue is whether or not what was located on the property in 1981 establishes a basis for zoning the property to EC-5. Price stated that if it has been in existence since or prior to 1981, she felt it is a non- conforming use and should be allowed to remain as a non-conforming use. Willis responded that a non-conforming use cannot expand and this use has clearly changed and more is happening on the site that was in 1981. A non-conforming use can continue as is, but may not expand. Price asked for clarification on the recommendation being made by the Planning Staff. Willis responded that the Staff is recommending that the property be rezoned back to Rural Buffer on the basis that there is not justification for it to be zoned EC-5. The court decision would not allow EC-5 because a junkyard is not allowed in EC-5. More discussion indicated concerns and disagreements that the business had remained the same since 1981. _w "^ 86 Allison referred to testimony he had heard at the public hearing indicating automobile repair work was in progress in and since 1981. He indicated he felt it could not be considered a junkyard, but, rather auto repair/body shop. Katz expressed concern that the Board is attempting to apply a category to a situation that does not fall into any of the categories. He continued that he heard evidence that auto repair and body work was being done. He felt there was no way to determine whether there was more "junkyard activity" going on the repair work. Price expressed concern that the issue may be whether or not it is now a legitimate business, not what it has been for the years since 1981. Willis responded that the existence of business records are not used directly in the terms of identifying if something is a business and what the business is. If business records existed, that would be evidence to indicate there was a business. The absence of such records does not state that there was not a business. It simply does not give as much information to base findings on that there was a business. Waddell reminded the Board again that the item has been returned to the Board by a Judge asking for additional evidence supporting the contention that the use was one allowed in an EC-5 district in 1981. Waddell continued that there had been much history attached to this issue. Reid noted that he felt the information being presented was not sufficient to convince him that the business was not operating in 1981. Waddell emphasized again that a Judge was saying, "If you provide additional evidence, then I will not overturn it; however, if you don't, to my satisfaction, then it is overturned. " Waddell agreed that it was a difficult decision, but, in order to retain the EC-5 designation, additional evidence must be presented. Henry Wilson, applicant, stated that his business specializes in the rebuilding of transmissions and engines. No body work is done. He felt nothing has changed since 1981. He felt there was reasonable doubt and that the classification being applied is incorrect. He referred to an affidavit submitted by Russell Garrett. Willis responded that the affidavit indicated more hobby 87 type work than repair. Mr. Garrett's affidavit seemed to indicate that individuals went to the area to do work on their own cars rather than taking them to someone else for repair. That was what helped to determine that it was more "hobby type work" than a auto repair business. If that was not the case, then the affidavit needs to be more clearly stated. Grainger Barrett, attorney for the three neighbors who brought the case, stated that he was aware of the sympathy for someone operating a business. However, he knew that he was taking a calculated risk. Not only is there a different use than was there in 1981, also, there have been two different owners. Mr. Combs brought the original rezoning application because the Staff considered him to be in violation of the existing zoning. Mr. Barrett continued, stating that Mr. Combs clearly did things that were intended to minimize the amount of regulatory scrutiny that came upon him. He continued referring to the permit application for a $2,000 structure for a 1440 square foot addition that was to be used to allow individuals to restore their own personal cars. When the Zoning Enforcement Officer inspected the site, it was basically a major league automotive operation. There were two or three bays, heavy jacks, lifts and other heavy duty equipment. Mr. Barrett stated that the Judge had determined that removing parts from junked cars and repairing cars on the site was part of what a junkyard is. Mr. Barrett also referred to a statement by County Attorney, Geof Gledhill from the public hearing minutes: "Mr. Reid's testimony last time was not sufficient and there was not any other evidence to prove what was there. A salvage shop is not a body shop. " He continued that the Judge realized that there were some parts being taken off cars, but it did not convince him that it was anything other than a junkyard. Mr. Barrett also noted that the original application by Mr. Combs himself called the business a junkyard. He also noted that the attorney for Mr. Combs and Mr. Wilson called the business a junkyard all through the testimony. It was constantly called "junked cars" . No one said that there was any major activity on the site other than junked cars and storage of vehicles. Everyone also said that Mr. Martin, owner in 1981, had a shop elsewhere and stored • 88 cars on this site. There was no structure at that time, the cars were used for parts. Mr. Barrett referred to the additional testimony noting that no significantly different testimony has been presented. He noted also that the burden of proof is on the applicant. He asked that everyone remember the Zoning Ordinance; junkyards were not allowed in EC-5 in 1981 and are not allowed in EC-5 now. He referred to affidavits that were presented noting that they all indicate junkyard, salvage yard operation rather than auto repair shop. Mr. Barrett closed his statements by asking that the integrity of the Zoning Ordinance not be not be challenged by attempting to determine that anything, other than a junkyard, salvage yard operation, was in operation at the site in 1981. Price asked if Mr. Barrett considered the business a junkyard now. The response was, "No, the use has clearly changed; it is an auto repair shop today. " Price asked when it became an auto repair shop and the response was two years ago. Howie asked about businesses that would be allowed in a Rural Buffer designation. Willis responded that the only businesses permitted in a Rural Buffer designation would be those that would qualify as a home occupation. Willis reviewed some of the main criteria for a home occupation. In response to a question about a business that would not be a home occupation, Willis noted that some are allowed with a Special Use Permit. Reid asked what Willis meant by her mention of "hobby" type work. Willis responded that would be where someone would have a place where they could go to work on their own vehicle, not for financial gain, something similar to building or repairing a "hotrod" . A commercial zoning designation would not be required for such work. The evidence did not address a type of use that was allowed under an EC-5 designation. Brown asked about permitted uses in an EC-5 district related to automobiles. Willis responded that motor vehicle maintenace/repair and motor vehicle service stations are the only two permitted in an EC-5 designation. Brown asked how Staff determined that the 1 89 operation was a junkyard. Willis responded that review of the evidence submitted and information on file indicated, in the Planning Staff's best judgment, that the business in operation in 1981 most closely resembled a junkyard. Brown noted that she came away from the public hearing with the feeling that a more elaborate operation was in place than simply a junkyard and she felt it was still a valuable commercial use. Rosemond asked about the implications of remaining an EC-5 district. Willis responded that the business could grow or change within the boundary of the .92 acre as any use allowed in an EC-5 district. Price asked if the business could operate as a non-conforming use with a Rural Buffer designation. Willis responded that the only way to operate as a non-conforming use with a Rural Buffer designation would be if it remained as it was in 1981. The use that is on the site now could not be considered a non-conforming use. Allison asked about determinations regarding non- conforming uses. Willis responded the Zoning Officer made those determinations and the Zoning Ordinance provides for an appeal of the Zoning Officer's decision to the Board of Adjustment. Willis continued that the Zoning Ordinance is very specific on determining what is a non-conforming use and they are all handled on a case by case basis. Waddell added that the Board of Adjustment's decision could be appealed to this judge. Brown asked if Staff's decision that the use was not a non-conforming use was appealed to the Board of Adjustment. Waddell responded that Mr. Combs appealed the Zoning Officer's order to cease and desist to the Board of Adjustment. Willis noted that was basically an appeal of the Zoning Officer's interpretation of the Ordinance that the use was a violation of the Zoning Ordinance. If it had been determined that it was a non-conforming use, it would have been able to continue. This could also have been appealed to the Courts by the neighbors. Brown indicated that the questions asked of those presenting affidavits were not specific enough. Allison expressed concern that a business was in operation that was more than a junkyard; he felt .a that space was also provided to work on and repair automobiles. He felt the real question was not a junkyard question. Willis responded that the real question was whether or not the use that was occurring on the property was one that is allowed in the EC-5 district. Willis emphasized again that automobile repair and service stations are allowed in EC-5 designation. She also noted again that the Planning Staff's finding is that the junkyard definition best fits the activity occurring on the site in 1981. Adjournment time was reached. MOTION: Allison moved to extend the meeting to complete the agenda. Seconded by Katz. VOTE: Unanimous. Price noted that she agreed with Allison's concern that a junkyard was not the only thing going on at the site in 1981. She felt the issue was not really being addressed. She asked if there was a change of structure from the time Mr. Combs owned the property until he sold it to Mr. Wilson. Hinkley responded that in 1983 the only structure on the site was a refreshment stand and ball field. In 1987-88 there were two mobile homes on the site. In 1990 application was made to build a garage to store personal cars but there were no requests for building inspections. Hinkley continued that the garage was built and contained lifts and other equipment. At the present time there are two mobile structures, a double-wide and the garage. Mrs. Wilson noted that the present structures were on the site when they purchased the property from Mr. Combs. Price asked about other permits and licenses. Mrs. Wilson responded that they have the licenses that are required. Brown stated that she was confident that the use was motor vehicle repair and would meet the criteria for an EC-5 designation. MOTION: Brown moved that the use was consistent with automobile maintenance and repair and should retain the EC-5 designation. Seconded by Reid. Waddell explained that aerial photographs had been presented from that time period that indicated a ball field and some cars were located on the property. He indicated that he could also r. 90 understand the Judge's position. He continued that he felt the owner at that time was storing the cars on the site and removing parts to be used at his repair business located elsewhere. Allison noted concern that it seemed as if there was doubt about the affidavits and he felt the truth had been told about the uses on the site in 1981. Howie stated that she felt there was more of the hobby type work done than actual auto repair and her decision would be based as much on the printed material as on the public hearing and testimony. VOTE: 6 in favor. 2 opposed (Waddell - stated that the last three years that this issue has been dealt with, there has been a preponderance of evidence of the storage of cars with occasional use of those cars for parts. Howie - reasons already stated. ) (4) Z-4-95 Donald Keith Godwin Presentation by Mary Willis. This item is to consider a rezoning requested by Donald Keith Godwin for property owned by Thomas Walker and Gail Harris. This request involves an amendment to both the Orange County Zoning Atlas and the Carrboro Zoning Map. The area proposed to be rezoned is located at the northwest corner of Rogers Road and Tallyho Trail. The property consists of one parcel (TM 7 .23.C.25) containing 13.6 acres. Existing subdivisions surround the area on three sides: Meadow Run Subdivision to the north, Fox Meadow Subdivision to the west, and Highland Meadow Subdivision to the south. According to the Joint Planning Area Land Use Plan (JPALUP) this parcel is categorized as Suburban Residential, and is located within Transition Area I of Carrboro Joint Development Review Area. The Suburban Residential designation allows densities up to 5 dwelling units per acre. The property is now zoned R-R, which allows a density of up to 1 dwelling unit per acre. The proposed zoning is R-20, which allows a density of up to 2. 1 dwelling units per acre. A Staff Report for the proposed rezoning,