HomeMy WebLinkAboutAgenda - 02-26-1996 - 4b 045
O R A N G E C O U N T Y
BOARD OF COMMISSIONERS
PUBLIC HEARING AGENDA ITEM ABSTRACT
Meeting Date: February 26, 1996
Action Agenda
Item # 4 b
SUBJECT: PROPOSED ZONING ORDINANCE TEXT AMENDMENT
Article 8.2 Special Uses
DEPARTMENT: PLANNING PUBLIC HEARING x Yes No
BUDGET AMENDMENT REQUIRED Yes X No
ATTACHMENT(S) : INFORMATION CONTACT:
Proposed Amendment Mary Willis
County Attorney Correspondence Extension 2583
TELEPHONE NUMBERS:
Hillsborough-732-8181
Durham -688-7331
Mebane -227-2031
Chapel Hill -967-9251
PURPOSE: To receive citizen comment on proposed amendments
to Special Use provisions related to expiration,
validity, and approval actions for Special Use
Permits,
BACKGROUND In the attached letter dated December 18, 1995,
the County Attorney recommended several changes
to the Zoning Ordinance provisions pertaining to
Special Uses.
It is proposed that the following standard
requirements be explicitly stated in each Special
Use Permit:
• that the permit will become null and void if
any of the conditions are held invalid or
void; and
• That the permit will automatically expire
within 12 months of approval if the use has
not commenced or if construction has not
commenced and proceeded, unless a time
extension is approved.
046
In addition, the proposed amendment involves a
change to Article 8.4.7, which relates to action
on Special Use Permits. The proposed amendment
would eliminate the requirement that a summary of
evidence supporting the action be included as a
part of the action itself.
RECOHMNDATION: Article 20 of the Zoning Ordinance requires that
the Zoning Officer's recommendation be presented
to the Planning Board within 30 days of receipt
of an application. However, Article 20.4 exempts
any application for amendments to the Zoning
Ordinance by either the public or the County from
the provisions of Article 20.3. In either case,
though, the public hearing is the time scheduled
for presentation of the Zoning Officer's
Recommendation.
Zoning Officer Recommendation
Provided that the Planning Board and Board of
Commissioners find in the affirmative, the Zoning
Officer recommends approval of the proposed text
amendment.
Administration Recommendation
The Administration recommends that the proposed .
amendment be referred to the Planning Board for a
recommendation to be returned to the Board of
Commissioners no sooner than April 1, 1996.
PROPOSED ORDINANCE AMENDMENT 047
ORDINANCE: ZONING ORDINANCE
REFERENCE: Article 8.2 Special Uses
ORIGIN OF AMENDMENT: Staff Planning Board
BOCC Public
_X Other: County Attorney
STAFF PRIORITY RECOMMENDATION: X High Middle Low
Comment _
PUBLIC HEARING DATE: February 26, 1996
PURPOSE OF AMENDMENT: To amend Special Use provisions re ate
to expiration, validity, and approval
actions for Special Use Permits,
IMPACTSIISSUES: In the attached letter dated December 18, 1995,
the County Attorney recommended several changes
to the Zoning Ordinance provisions pertaining to
Special Uses.
It is proposed that the following standard
requirements be explicitly stated in each Special
Use Permit:
• that the permit will become null and void if
any of the conditions are held invalid or
void; and
• That the permit will automatically expire
within 12 months of approval if the use has
not commenced or if construction has not
commenced and proceeded, unless a time
extension is approved.
In addition, the proposed amendment involves a
change to Article 8.4.7, which relates to action
on Special Use Permits. The proposed amendment
would eliminate the requirement that a summary of
evidence supporting the action be included as a
part of the action itself.
EXISTING ORDINANCE PROVISIONS AND PROPOSED AMENDMENT:
ARTICLE 8 - SPECIAL USES
8.1 It is the intention of the Board of County Commissioners
to create, and from time to time amend, a list of Special
Uses within Article 4 Permitted Use Table which, because
of their inherent nature, extent and external effects,
require special care in the control of their location and
methods of operation. The Board of County Commissioners
048 is aware of its responsibility to protect the public
health, safety and general welfare and believe that
certain uses which now or in the future may be included
on this list are appropriately handled as Special Uses,
subject to review in relation to general and specific
requirements, rather than as uses permitted by right.
In addition to the listing of such uses, the Board of
County Commissioners intends that the general standards,
established in Section 8.2. 1, and the more specific
requirements in 8.2.2, established below, shall be used
by the Board of Adjustment, the Planning Board and the
Board of County Commissioners, as appropriate, to direct
deliberations upon application or the approval of Special
Uses. It is the express intent of the Board of County
Commissioners to delineate the areas of concern connected
with each Special Use and to provide standards by which
applications for such Special Use shall be evaluated.
8.2.1 Before any application for a Special Use shall be
approved:
a) The applicant shall have the burden of
establishing, by competent material and substantial
evidence, the existence of the facts and conditions
which this ordinance requires for approval; and
b) The Board shall make written findings certifying
compliance with the specific rules governing such
individual Special Use and that the use, which is
listed as a Special Use in the district in which it
is proposed to be located, complies with all
required regulations and standards including the
following general conditions:
( 1) The use will maintain or promote the public
health, safety and general welfare, if located
where proposed and developed and operated
according to the plan as submitted;
(2) The use will maintain or enhance the value of
contiguous property (unless the use is a
public necessity, in which case the use need
not maintain or enhance the value of
contiguous property) ;
(3) The location and character of the use, if
developed according to the plan submitted,
will be in harmony with the area in which it
is to be located and the use is in compliance
with the plan for the physical development of
the County as embodied in these regulations or
in the Comprehensive Plan, or portion thereof,
adopted by the Board of County Commissioners;
and including all applicable provisions of Articles
4, 5, 6, 7, 9, 10 and 12 of this Ordinance, unless
049
greater or different regulations are contained in
the individual standards for the specific Special
Use. The applicant shall have the burden of
establishing by competent material and substantial
evidence in the form of testimony, exhibits,
documents, models, plans and the like that the
application meets the requirements for approval of
a Special Use.
8.2.2 Where the Board finds compliance with the general
standards, specific rules governing the specific use
and that the use complies with all required regulations
and standards the application must be approved unless the
Board shall also find, in some specific manner, that:
The use will not maintain or promote the public
health, safety and general welfare, if located where
proposed and developed and operated according to the plan
as submitted;
Those opposing approval of the application on the grounds
that the use will not promote the public health, safety
and general welfare shall have the burden of
establishing, by competent material and substantial
evidence, the specific manner in which the proposed use
does not satisfy the requirements for approval of the
application for a Special Use.
8.2.3 RESERPMD
-The Special Use Permit shall include a statement that If
any condition of a Special Use Permit shall be held
invalid or void, then the permit itself shall be void and
of no effect.
8.2.4 In addition to the general standards stated in 8.2 the
following specific standards shall be addressed by the
applicant before the issuance of a Special Use Permit:
a) Method and adequacy of provision of sewage disposal
facilities, solid waste, and water.
b) Method and adequacy of police, fire and rescue
squad protection.
C) Method and adequacy of vehicular access to the site
and traffic conditions around the site.
d) Other use specific standards are set forth in
Section 8.8.
8.2 .5 It shall be stated in the Special Use Permit that the
Permit shall automatically expire within twelve ( 12)
months of the date of approval if the use has not
commenced or construction has not commenced or proceeded
unless a timely application for extension of this time
limit is approved by the Board of County Commissioners as
provided in 8.4. 11 of the Orange County Zoning Ordinance
8.4.7 Action On The Application
After completion of the public hearing, the Board of
County Commissioners or the Board of Adjustment, as
appropriate, shall take action upon the application.
This action shall be one of the following:
a) Approval;
b) Approval with conditions attached;
C) Denial.
in eveey ease, the aetie -ef the Beard- shall iaejude a
en the appileatlen.
**********************************
ORDINANCE REVIEW SUBCOMMITTEE:
PLANNING BOARD REVIEW:
BOCC REVIEW:
051
LAW OFFICES
COLEMAN, GLEDHILL & HARGRAVE
A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHI L
129 E.TRYON STREET DOUGLAS HARGRAVE
P.O.DRAWER 1529 KIM K STEFFAN
HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON
(919)732-21% DOUGLAS P.THOREN
FAX(919)732.7997 SAMUEL.ELY COLEMAN
December 18, 1995
Mr. Marvin Collins
Planning Director
Orange County Planning Department
Post Office Box 8181
Hillsborough, North Carolina 27278
RE: Special Use Pezmits
Dear Marvin:
While recently reviewing a special use permit or two, it
occurred to me that Orange County should condition its special
use permits such that if any condition is determined to be
invalid, the whole permit is invalid. I think it will also be
useful if special use permits describe the construction timing
requirements of the Ordinance as a condition of approval. I
recommend the following language be used and that each special
use permit approval be conditioned as follows:
# If any of the conditions affixed hereto or any- part of this
permit shall be held invalid or void, then this permit shall
be void and of no effect.
# This permit shall automatically expire within twelve (12)
months of the date of its approval if the use has not
commenced or construction has not commenced and proceeded
unless a timely application for extension of this time limit
is approved by the Board of County Commissioners as provided
for in Section 8.4.11 of the Orange County Zoning Ordinance.
These conditions are fairly standard for special use
permits. At some point in time I have talked about their need
with you or perhaps some members of your staff. I had overlooked
documenting those conversations and providing the needed
language.
05;e
Mr. Marvin Collins
Page 2
December 18, 1995
Also, Section 8.4.7 of the Zoning Ordinance, relates to
action on an application for a special use permit. That action,
by either the Board of County Commissioners in the case of a
Class A special use permit or the Board of Adjustment in the case
of a Class Q special use i� must nt _�__�_
vi v Class a.. �YJG6.1a1 Id.7G pCliLLl�., {IILLD{.. I n ever/ case, . . . include
a summary of the evidence supporting the action taken . . . on the
application. " In the context of a special use permit application
some time ago this language was remov6d from the Board of
Adjustment's Rules of Procedure. Enclosed is a copy of my March
7, 1995 letter to you about that. The language indicated above
should be deleted from the Ordinance for the reasons stated in
that letter. In my March 7, 1995 letter I mistakenly indicated
that the problem language only applies to the Board of
Adjustment. As you can see, Section 8.4.7 applies equally to the
Board of Adjustment and Board of Commissioners . And the problem
can only be fixed with an Ordinance revision.
Very truly yours,
COLEMAN GLEDHILL a HARGRAVE, P.C.
y E. dhill
GEG/lsg
Enclosure
1sg\home3\mco11sup.ltr
053
LAW OFFICES
COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN,JR.
A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL
DOUGLAS HARGRAVE
129 E.TRYON STREET
KIM K.STEFFAN
P.O.DRA\L'ER 1529
HILLSBOROUGH,NORTH CAROLINA 27278 }ANET B.DUTTON
(919)732.2196 DOUGLAS P.T'HOREN
FAX(919)732.7997 SAMUEL ELY COLEMAN
March 7 , 1995
Mr. Marvin Collins
Planning Director
Orange County Planning Department
Post Office Box 8181
Hillsborough, North Carolina 27278
RE: Special Use Permits
Dear Marvin:
As you know, of late I have been busy with appeals of Board
of Adjustment decisions . That activity has alerted me to what I
see as a source of ambiguity in the special use permit
application process and the need to modify the Board of
Adjustment's Rules of Procedure.
Presently Section 8 .2 . 1 of the Zoning Ordinance places the
burden of proof on the applicant to prove the general conditions
listed as ( 1) , (2 ) and ( 3) under subsection b) . Section 8 . 2 . 2
then purports to shift the burden of proof on those same matters
to opponents of the special use permit. I think this process
should be revised.
The burden should continue to be the applicants to prove
Section 8 . 2 . 1 .b, ( 1) , (2 ) and (3) . Opponents of an application,
on the other hand, should have no burden with respect to the
matters contained in Section 8 . 2 . 2 (b) and (c) . Opponents of an
application will, of course, have the opportunity to present
evidence on the matters contained in those subsections .
Enclosed is a rewrite of Section 8 .2 . 2 with highlighted
(new) and cross through (eliminated) language that accomplishes
this change. My reason for recommending that this change be made
is to make it absolutely clear that the applicant has a burden to
make a showing with respect to value of contiguous property and
that the use must be in compliance with the County's "general
Plan" for development. These two items are fact specific and can
be readily established by evidence available to the applicant at
054
Mr. Marvin Collins
Page 2
March 7 ; 1995
the application stage. On the other hand, although the applicant
can be required to show in general that the use will maintain or
promote the public health, safety and general welfare, the
applicant cannot be expected to anticipate every specific health,
safety and welfare problem. Proof of any such specific problem
should be the responsibility of opponents .
The best statement of the principles involved here is that
contained in Brough & Green, The Zoning Board of Adjustment, at
pages 83-84 ( 2nd ed. Institute of Government, UNC-CH, 1984 ) .
These principles were recognized and approved in a recent North
Carolina Court of Appeals case, Signorelli v. Town of Highland,
93 N.C.App. 704, 379 S .E . 2d 55 ( 1989) . in that case, the
applicant sought a special use permit. The permit -was denied and
the Superior Court affirmed on the basis that the "petitioner
failed to meet the burden of producing evidence and the burden of
persuasion to allow the board to find in the petitioner's favor. "
379 S.E. 2d at 57 . The Court of Appeals ' decision affirming the
Superior Court in Signorelli contains the first explicit
recognition in North Carolina case law that "the evidentiary
burden in special use permit proceedings can shift from the
applicant to those who oppose the application. " Id.
The Signorelli case is interesting also for its recognition
that the applicant has some burden on the issue of public health,
safety and general welfare, notwithstanding the caution on that
point in the passage from the Brough and Green publication set
out above . The Signorelli court concluded that the applicant had
established a prima facie case because his application
demonstrated compliance with the relevant specific requirements
and therefore the question was whether the burden of showing that
the proposed use would materially endanger the public health and
safety had been met. The court stated that there was evidence
that the plans were not specific enough for the board to properly
decide whether or not the proposed use would materially endanger
the public health and safety. In particular, the court noted
that the board had found that:
. . .no set of plans or specifics were submitted regarding
hours of operation, number of machines and tables, or
methods of supervision so that protection of the public
welfare against traffic and noise difficulties was not
assured.
379 S . E. 2d at 58 . The court then concluded that "a plan
lacking in essential details and specifics potentially threatens
health and safety no less than a detailed plan which is
antithetical to the public and the public interest. " Id. , 379
S .E . 2d at 59 . In other words, the evidence before the board on
Mr. Marvin Collins 055
Page 3
March 7 , 1995
the issue of public health and safety was that there was no
evidence before the board on this issue.
I recognize that all of this is perhaps legalistic to a
fault. However, I think my analysis is correct and I wanted to
share_ with t _
Share it with you if =Lor no other reason than to test your quasi
lawyering skills and set down in writing the basis for the
ordinance change, together with an analysis that will help in its
implementation when adopted.
I have also enclosed a copy of a recent North Carolina Court
of Appeals decision in the case of Vulcan Materials Company v.
Guilford County Board of County Commissioners , 115 N.C.App. 319 ,
444 S .E . 2d 639 . That case approves the use of a special use
permit standard in the Guilford County Zoning Ordinance which may
be helpful to Orange County and which could be an addition to the
third special use permit general standard in the Orange County
Zoning Ordinance. That standard is that the special use be "in
harmony with the area in which (it] is to be located. . . . 11 Id. ,
444 S .E . 2d at 642 . As you can see by the analysis of the court
in the enclosed opinion, that standard permitted a denial of an
industrial use (rock quarry) when competent, material and
substantial evidence was presented that the use contemplated was
in fact not "in harmony" with the surrounding residential and
agricultural land uses, notwithstanding the general conformity
implicit in the fact that this special use is one permitted in
the agricultural/residential zoning district. I commend this
approach and have included language in the rewrite of Section
8 . 2 . 1 which will accomplish it for your consideration.
Finally, I have reviewed again the Orange County Board of
Adjustment's Rules of Procedure and recommend the changes
enclosed. These recommended changes arise out of one or more
North Carolina Appellate Court decisions . The most important
proposed change is to Section 3(e) . One North Carolina Court of
Appeals decision remanded a board of adjustment decision because,
among other reasons , the chair failed to summarize the evidence
presented at the special use permit hearing and provide the
parties an opportunity to make objections or corrections before
the board of adjustment made its decision. Cardwell v. Forsyth
County Zoning Board of Adjustment, 88 N.C .App. 244 , 362 S .E.2d
843 ( 1987 ) , rev. denied 321 N.C. 742 ( 1988) . It seems to me that
no matter how helpful such a practice is , it need not be the
basis for overturning a board of adjustment decision. In that
regard, there is no comparable requirement or practice by the
Board of Commissioners in its special use permit procedures .
Also, eliminating the requirement that the chair of the board of
adjustment summarize evidence does not mean that the chair cannot
do this if it is the practice.
056
Mr. Marvin Collins
Page 4
March 7, 1995
I ` ll be glad to review all of this with you. I would hope
that an ordinance amendment consistent with this letter could be
considered by the Board of Commissioners at the next scheduled
regular quarterly public hearing and the Board of Adjustment
could consider the Rules of Procedure changes as soon as
practical .
Very truly yours,
COLEMAW, GLEDHILL & HARGRAVE, P.C.
Geo rey E . Gledhill
GEGJlsg
Enclosures /
1Sg\home3\mco11in4.1tr
Y f
057
Revisions to Article 8 - Special Uses
8.2. 1 Before any application for a Special Use shall be
approved:
a) The applicant shall have the burden of
establishing, by competent material and substantial
evidence, the existence of the facts and conditions
which this ordinance requires for approval; and
b) The Board shall make written findings certifying
compliance with the specific rules governing such
individual Special Use and that the use, which is
listed as a Special Use in the district in which it
is proposed to be located, complies with all
required regulations and standards including the
following general conditions :
Amended ( 1) The use will maintain or promote the public
1/8/90 health, safety and general welfare, if located
where proposed and developed and operated
according to the plan as submitted;
( 2 ) The use will maintain or enhance the value of
contiguous property (unless the use is a
public necessity, in which case the use need
not maintain or enhance the value of
contiguous property) ;
( 3) Tie lt� art �m hd har tes b. the u ,
dexreQped acedrdrng the plan submitt'edf
.aMDn worth h� area . ww Z
.;;
mss..tc�:;?e. QCa ed antl the use is in compliance
With: ..:,the.. ...genera.1 plan for the physical
development of the County as embodied in these
regulations or in the Comprehensive Plan, or
portion thereof, adopted by the Board of
County Commissioners ;
and including all applicable provisions of Articles
4 , 5 , 6 , 7 , 9 , 10 and 12 of this Ordinance, unless
greater or different regulations are contained in
the individual standards for the specific Special
Use. It shall be the responsibility of the
applicant to present evidence in the form of
testimony, exhibits, documents, models, plans and
the like to support the application for approval of
a Special Use.
8.2 .2 Where the Board finds a=p e e e-evidenee--te
compliance with the general standards, specific
rules governing the specific use and that the use
058
complies with all required regulations and standards the
application must be approved unless the Board shall also
find, in some specific manned that:
Amended a+ The use will not maintain or promote the public
1/8/90 health, safety and general welfare, if located
where proposed and developed and operated according
to the plan as submitted;
eel}gueus-- preperty (unless the use a--publi
necessity, In w ieh ease the use need--fret-malatain
e) The- use Is ne-t in eemplianee with the geneEal plans
eE the—pis le a 1
embedled—in these regulat--iens er— la t
,
Those opposing approval of the application on the grounds
that the use will not promote the public health, safety
and general welfare-,—will net maintalft er enhanee t
Geunty shall have the burden of establishing, by
competent material and substantial evidence:;' the specific
manner in which the proposed use does not` satisfy the
requirements for approval of the application for a
Special Use .
1sg\hcme3\art8.amd
VI. Appeals and Applications
B. Procedure for Filing Appeals and IItherl�catio `s
Amended No appeal shall be heard by the Board unless notice
6/11/90 thereof is filed within thirty ( 30) days after the
decision, determination or directive was made by the
Zoning Officer and record of that action filed in the
office of the Zoning Officer. No appeal or -tithe ,
a shall be considered by the Board unless` a
:.::..
coknpletedapplication is received. All applications for
hearings shall be filed with the Secretary, or with the
Zoning Officer, who shall act as Secretary for the Board
in receiving this notice. All applications shall be made
upon the form furnished for that purpose, and all
required information shall be provided thereon before an
appeal or an application shall be considered as having
been filed. Any prsn pr aaca � zz wzth standzn
r-esident of he r- & zenIn" J_=1=a_'}.__.T..:may appeal
from any order or act of the Zoning Officer pertaining to
enforcement of the Zoning Ordinance.
C . Hearings
3 . Conduct of Hearing
Any party may appear in person or by agent or by
attorney at the hearing. The order of business for
each hearing shall be as follows :
has—f eeft pEesewed, giving the par-ties an
Witnesses may be called and factual evidence
may be submitted, but the Board shall not be
limited to consideration of such evidence as
..........................
would be admissible in a court of law slo
si<<> `` Sbd res o� ttntez a
e��.de��et� �e Zack �here�: <a.d �akin� its
��t�� '...". T}ieBoard""may; in its discretion,
view°tY�e premises and obtain additional facts
in the matter before arriving at a
determination of the case.
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