HomeMy WebLinkAboutBOA minutes 111113Approved 4/22/2014
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MINUTES 1
BOARD OF ADJUSTMENT 2
NOVEMBER 11, 2013 3
REGULAR MEETING 4
5
MEMBERS PRESENT: Larry Wright, Full Member (Chair) 6
David Blankfard, Full Member (Vice Chair) 7
Karen Barrows, Full Member 8
Mark Micol, Alternate Member 9
Jeffrey Schmitt, Full Member 10
11
MEMBER ABSENT: Samantha Cabe, Alternate Member 12
13
STAFF PRESENT: Michael Harvey, Current Planning Supervisor 14
Debra Graham, Board Secretary 15
James Bryan, Staff Attorney 16
17
OTHERS: Geoffrey Gledhill, Attorney Representing Orange County 18
David Rooks, Attorney Representing the Board of Adjustment 19
20
AGENDA ITEM 1: CALL TO ORDER 21
22
Larry Wright called the meeting to order at 5:00 pm. Mr. Blankfard previously read the public charge at the 23
previous meeting so I don’t think that needs to be read again. 24
25
AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA 26
27
AGENDA ITEM 3: APPROVAL OF MINUTES 28
29
A. SEPTEMBER 10, 2013 30
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Michael Harvey: On page 2, line 43 should read, “There will be further testimony from the county with respect to 32
this appeal…”. On page 6, line 36 should read, “To page 56”. On page 7, line 5 should read, “Geof Gledhill: I 33
get it, so now we are on a different document which is Appellant Exhibit 4 (PowerPoint presentation). On page 7, 34
line 13 should read, “set of critical findings and those findings must be supported by substantial competent 35
and...”. On page 9, line 8 should read, “Michael Harvey: Mr. Buck, technically, the special use permit is in 36
Attachment C. You referenced the SUP in Attachment A but the approved copy is in Attachment C. Michael 37
Buck: I would like to…”. On page 9, line 42 should read, “What Dr. Wright was referring to in 2007 is, I 38
believe…”. On page 11, line 14 should read, “I will now move to the developers…”. On page 13, line 18 should 39
read, “(Walkways and bridges are not connected, logical, convenient or safe). On page 17, line 43 should read, “I 40
will do my best to offer evidence without making whatever argument is purported to…”. On page 18, line 2 should 41
read, “enacted after 1986 and the two cases I would like to show are…” On page 18, line 20 and 21 should read, 42
“…women involved in this correspondence (that is an expression). It is not evidence, nothing to identify it as a 43
planning document…”. 44
45
Michael Harvey: On page 20, line 10 should read, “Is that in the ordinance for a special use….”. On page 21, 46
line 8 should read, “Michael Buck: It is referenced on page 41 called freemaptools.com and it is a 47
planimeter…”On page 21, line 48 should read, “The ordinance that applies in my opinion, and that is a point of 48
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debate we…”. On page 22, line 5 should read, “Are you contending that the surveyor is incorrect in what he 1
states…”. On page 23, line 35 should read, “That is the tot lot we just looked…”. On page 23, line 44 should 2
read, “Geof Gledhill: It doesn’t matter. [How much acreage can be used as a field?]. The reason for that is 3
clarification and that was the point of the discussion. Mr. Gledhill’s comment was basically how much acreage 4
can be used as a field? On page 24, line 19 should read, “unsuitability is a point”. On page 24, line 34 should 5
read, “Geof Gledhill: For one thing I can’t read it and digest it in two minutes. Second it is apparent to me that it 6
is some kind of contemporaneous negotiation going on with the planning department and this developer.” On 7
page 24, line 43 should read, “Larry Wright: It discusses special use permit in paragraph 3, the multi-family 8
parcel will…”. On page 25, line 2 should read, “Larry Wright: Submit it into evidence and once you make your 9
summary claims I would come…”. On page 28, line 11 should read, “Michael Buck: Here is the county’s estimate 10
which is argumentative which we will skip…”. On page 29, line 39 should read, “David Blankfard: Can we hear 11
from the county and then move the deliberations in the next session…”. On page 30, line 15 and line 16 should 12
read, “meaning I will flesh out the questions so he can answer as many in a yes or no format as possible to save 13
time. On page 30, line 16, begin new paragraph, “Geof Gledhill: Through the recorded SUP included those 14
document incorporated to it by reference together with recorded plats memorialize this Scotswood Planned 15
Development special use?”. On page 30, line 23 should read, “documents incorporated by reference?”. On page 16
30, line 36 should read, “Michael Harvey: Yes sir. They do”. On page 30, line 39 should read, “Churton Grove, 17
Braddock Park, the commercial area satisfies the complained about recreation…”. On page 30, line 48 should 18
read, “This includes parking, property located in required setbacks…”. On page 31, line 9 should read, “Geof 19
Gledhill: Have you also prepared a document that connects the various PINs that you show…”. On page 31, line 20
24 should read, These names become synonymous depending on which plat you are looking at.”. On page 31, 21
line 27 should read, “Phase IV is referred to on Plat book 103, phage 63 and 64.” On page 31, line 32 should 22
read, “specifically in an open grass play area according to the plat that is on plat book 103…” On page 31, line 23
35 should read, “We have 2.381 acres per the approved plat and on the next page we have the Phase II…” On 24
page 31, line 38 should read, “includes dedication of open space around…” On page 31, line 50 should read, 25
“The document has been entered into record, Attachment I.” On page 32, line 1 should read, “The required ratios 26
denoting how much recreational area is required is listed on the approved site plan and I am referencing the 27
condition of the approved plat.” On page 32, line 21 should read, “Geof Gledhill: With all due respect, Mr. Buck 28
is cross examining. Begin a new paragraph, “Geof Gledhill: When Scotswood was…” On page 32, line 23 29
should read, “were County Zoning regulations and subdivision regulations contained in the zoning...”. On page 30
32, line 28 should read, “Geof Gledhill: Are those documents in the record?”. Page 32, line 32 should read “Geof 31
Gledhill: Explain the reason for the “1981” draft ordinance…”. On page 32, line 37 should read, “the ordinance 32
that existed on the day this project was approved in the public record or in our files.”. Page 32, line 39 should 33
read, “ordinance and compared it to a copy of the ordinance that was in force and effect the day…”. Page 32, 34
line 42 should read, “We included both the draft and actual zoning ordinance in the record…”, On page 33, line 8 35
should read, “speaks extensively about Section IV-B-7-b of the Orange County Subdivision Regulations…”. Line 36
13 should read, “Geof Gledhill: Prior to the adoption of Section IV-B-7-b of the County’s subdivision regulations”. 37
Line 19 should read, “in Section 6.12.2.6 of the Zoning Ordinance requiring a specific recreational space ration of 38
.019.” Line 20 and 21 should read, “The process to determine required recreation was to take the gross size of a 39
project and multiply it by the ratio that would give you the acreage required.” Line 34 should read, “approved 40
were not detailed and not as specific as the IV-B-7-b and essentially the recreation…”. Line 39 and 40 should 41
read, “Geof Gledhill: Condition 27 of the special use permit relating to the recreation is couched in what terms.”. 42
On page 34, line 8 should read, “Michael Harvey: The current subdivision regulation, Section IV-B-7-b…”. Line 43
20 should read, “6.12.2.6 of the zoning ordinance…” Line 28 should read, “Geof Gledhill: August 4, 1986, is your 44
testimony as to when the recreation components were fleshed out in the adoption of Section IV-B-7-b in the 45
subdivision regulations”. Line 41 should read, “Geof Gledhill: The recreation component IV-B-77b was being 46
discussed while Scotswood was going…”. On page 35, line 1 and 2 should read, “Geof Gledhill: In my argument 47
I will quibble with the planning director’s use of the term exempt. Another term is legally correct and yes that is 48
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your evidence.” Begin a new paragraph: “Geof Gledhill: Is it true that at the time the…”. Line 17 should read, 1
“Geof Gledhill: That was negotiated between the developer and the planning staff, correct?” Line 21 should 2
read, “Geof Gledhill: On the basis of the negotiation were the county’s negotiating point…”. Line 32 should read, 3
“The plat does not indicate locations or easements for SUP mandated…”. On page 36, line 1 should read, “have 4
a network of trails across including under the bridge…”. Line 10 should read, “Michael Harvey: On the cover 5
page, Conditions 27, this is paraphrased for you referenced the installation of pedestrian access points off 6
Graham Drive, Cameron Circle to allow for access to the ….”. Line 13 should read, “terms of brining this appeal 7
forward was for you to understand that Graham Drive….”. On page 37, line 26 should read, “not cross Nancy Hill 8
Creek.” Line 41 should read, “That includes all applicable necessary infrastructure…”. Line 51 should read, “him 9
neither did they require Mr. Collins to write an ordinance to require Scotswood to be excluded.” 10
11
Motion to accept minutes with corrections made by Jeff Schmitt. Seconded by Karen Barrows. 12
Vote: Unanimous. 13
14
15
B. OCTOBER 14, 2013 16
17
Larry Wright: Member present for the October 14th meeting was Larry Wright and staff present was Michael 18
Harvey. I affirm that the minutes as presented on this page are correct. 19
20
21
AGENDA ITEM 4: PUBLIC CHARGE 22
The Board of Adjustment pledges to the citizens of Orange County its respect. 23
The Board asks its citizens to conduct themselves in a respectful, courteous 24
manner, both with the Board and with fellow citizens. At any time should any 25
member of the Board or any citizen fail to observe this public charge, the 26
Chair will ask the offending person to leave the meeting until that individual 27
regains personal control. Should decorum fail to be restored, the Chair will 28
recess the meeting until such time that a genuine commitment to this public 29
charge is observed. All electronic devices such as cell phones, pagers, and 30
computers should please be turned off or set to silent/vibrate. 31
32
The Board of Adjustment is a quasi-judicial administrative body established in 33
accordance with the provisions of local regulations and State law to perform 34
specified functions essential to the County’s planning program. Action(s) 35
taken by the board are based solely on competent, substantial, and material 36
evidence presented during a previously scheduled and advertised public hearing 37
on a specific item. As detailed within Section 2.12.2 of the UDO the Board 38
chair reserves the right to exclude evidence and testimony that is deemed: 39
‘incompetent, irrelevant, immaterial, or unduly repetitious’ and therefore 40
fails to reasonably address the issues before the Board of Adjustment. While 41
it should be noted there is no time limit on the presentation of evidence, the 42
Chair asks that the presentation of evidence be consistent with established 43
policies, rules of procedure, and acceptable levels of decorum to ensure a 44
fair and equitable hearing for all parties. 45
46
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AGENDA ITEM 5: A-3-13 – Appeal of a decision made by the Zoning Officer submitted by Michael Buck 1
In accordance with the provisions of Section 2.3.7 of the Orange County Zoning Ordinance, enforced at the time 2
the appeal application was submitted (now contained within Section 2.11 of the Orange County UDO adopted 3
April 5, 2011), the applicant has appealed a decision of the Zoning Officer related to the Churton Grove, formerly 4
Scotswood, Planned Development within the Hillsborough Township of Orange County. 5
The appeal arises out of the recordation of a plat within Plat Book 103 Pages 63-64 of the Orange County 6
Registrar of Deeds Office for the final phase of the aforementioned development. 7
The applicant alleges the provision of recreational amenities within the development is inconsistent with existing 8
County regulations and has appealed staff’s approval of the aforementioned plat. 9
10
Larry Wright: At the September 10th meeting, both Mr. Buck and Mr. Gledhill presented evidence to the board. In 11
September, I asked to have staff contact Mr. Buck and Mr. Gledhill and have them submit bullets of evidence that 12
was submitted to and approved by the board. Mr. Gledhill’s summary is in ….. 13
14
Michael Harvey: Mr. Gledhill’s summary is in Attachment 2 beginning on page 5. 15
16
Larry Wright: Mr. Buck, did you submit? 17
18
Michael Buck: Yes I did. 19
20
Michael Harvey: Mr. Buck’s comments are contained in Attachment 3 beginning on page 37. 21
22
Larry Wright: These bullets span from page 37 to page 92? All these were approved as admissible evidence? 23
24
Michael Buck: That is my belief, yes. 25
26
Geof Gledhill: I cannot understand Mr. Buck’s format. I think what Mr. Buck got into evidence…. 27
28
Larry Wright: While Mr. Gledhill is looking this up, Mr. Buck, I specifically requested to have this in bullet format to 29
make it easier because we have a limited amount of time and it is not that I am restricting the time but that is why 30
I asked for it in bullet format. 31
32
Geof Gledhill: What the county contends… the evidence that Mr. Buck presented begins at page 12 of your 33
packet and ends on page 36 and that is in bullet format with the exhibits that are referenced in the bullet format. 34
35
Larry Wright: Mr. Buck, do you have a response to that? 36
37
Michael Buck: I’m sorry… I did not understand the requirement for bullets. I understood the requirement for a list 38
of evidence that I thought was admitted which is what I provided so I am sorry it is not in bulleted format. 39
40
Larry Wright: Mr. Gledhill stated that on page 12, this is what the county deems admissible evidence on your 41
behalf, do you agree with that looking at page 12? 42
43
Michael Buck: I do agree with what the County says is admitted. I think it leaves out some things I thought were 44
admitted. 45
46
Larry Wright: There is confusion here. Do members of the board have any questions? 47
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1
Karen Barrows: On the memorandum we got, it says this is to overturn the decision of the Planning Director. 2
Other stuff states the Zoning Officer, so whose decision are we actually looking at? 3
4
Michael Harvey: In the UDO, the term Orange County Planning Director/Zoning Officer are synonymous. 5
6
Larry Wright: Let me ask each person…Mr. Buck, do you have any additional evidence that directly relates to 7
Attachment B. Attachment B is your appeal. 8
9
Michael Buck: I know what you mean. 10
11
Michael Harvey: Attachment A from the September meeting is the appeal application. We have also included 12
here in 6 for edification as you requested. 13
14
Larry Wright: (To Mr. Buck). Do you have any additional evidence that was not covered on September 10? 15
16
Michael Buck: I do. 17
18
Larry Wright: Could you briefly present that evidence please. You have testimony as well? 19
20
Michael Buck: I do have two items of testimony I would like to present, two brief paragraphs. Is there a 21
preference on the order? 22
23
Larry Wright: Just make sure it is evidence. 24
25
Michael Buck: I appreciate the fact, I did not understand that last time. The digitized email view…I believe the 26
county has accepted the digitized view that was previously submitted but the county made a claim that it was a 27
purported document provided by the current planning supervisor. 28
29
Michael Harvey: That’s Appellant Exhibit 8 from the September meeting on page 35 of this packet. 30
31
Michael Buck: The county acceptance of the evidence, the claim was this was a purported view perhaps 32
indicating it is not from the current planning supervisor so I have the emails I received from the current planning 33
supervisor in 2008 in which that view was given to me. I would like to submit that if there is any concern about 34
the validity of that view and its source. 35
36
Geof Gledhill: In the evidence, on page 25, lines 5 through 19, the statement made by Mr. Buck was that it was 37
prepared by the County’s Engineer’s office showing community recreational area acreage. Our contention is that 38
is what Mr. Buck purports where this came from. There was nothing about the county planning director in earlier 39
testimony. 40
41
Michael Buck: I want to make sure that we are in agreement that it was a document that came from the county to 42
me via the current planning supervisor in 2008. 43
44
Michael Harvey: Mr. Chairman, if I could ask, could Mr. Buck clarify for the record who that was. 45
46
Michael Buck: It was Robert Davis. 47
48
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Geof Gledhill: What I understand is that what Mr. Buck is going to present to you is evidence that the document 1
was prepared or given to him by Mr. Davis. 2
3
Michael Buck: That is correct. I want to make sure I am doing things properly. 4
5
Larry Wright: You are presenting factual evidence. 6
7
Geof Gledhill: I have seen it. 8
9
Michael Buck: It is an email I received from Robert Davis in 2008. It is part of the email chain. Again, I am just 10
trying to establish… the digitized view which claims 3.77 acres. 11
12
Geof Gledhill: The only part of this email you are relying on in this context is the Robert Davis to Michael Buck, is 13
that correct so the rest is not part of this? 14
15
Michael Buck: That is correct. 16
17
Geof Gledhill: Then I do not object to the first part of that first page. It is an email from Robert Davis to Michael 18
Buck. 19
20
Larry Wright: You will have a rebuttal time Mr. Gledhill. (To Mr. Buck) Go ahead and proceed. 21
22
Michael Harvey: For the record, what should we label the exhibit? Would it be reasonable to say Applicant 23
Exhibit 1-A November 11, 2013? 24
25
David Rooks: I suggest all exhibits tonight be labeled Applicant’s 1-A, 1-B, 1-C and County’s 1-A, 1-B, 1-C. 26
27
Michael Buck: I have a memorandum from the Zoning Officer, Robert Davis, from October 10, 2007 which was 28
presented to the Board of Commissioners in their October 23, 2007 meeting. 29
30
Larry Wright: Please repeat that. 31
32
Michael Buck: It is a memorandum from the zoning officer, Mr. Davis, reporting to the Board of Commissioners, 33
dated October 10 and was presented to the Board of Commissioners in their October 23, 2007 meeting. 34
35
Larry Wright: This is Applicant Exhibit 1-B. 36
37
Geof Gledhill: The only objection I will raise is that I don’t know there is any evidence that Robert Davis is a 38
zoning officer. This document identifies him as current planning supervisor. 39
40
Michael Buck: I apologize if I said zoning officer, current planning supervisor. 41
42
Larry Wright: Go ahead Mr. Buck, Mr. Gledhill, you will have a rebuttal time. 43
44
Michael Buck: I have the Board of Commissioners meeting minutes from June 26, 2003 with regard to the 45
approval of the Outdoor Lighting Standards which are in Section 6.31 of the Zoning Ordinance. I only have one 46
copy. My purpose in submitting this was to establish the date in which the lighting ordinance was established. It 47
is not indicated in attachments we have before us because it was enacted after Attachments H and I. 48
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1
Geof Gledhill: The street lighting? 2
3
Michael Buck: It is called the Outdoor Lighting Standards. My printer ran out of toner so… 4
5
Michael Harvey: Mr. Chairman, this amendment was dated the July 2, 2003, the ordinance that is in the record, 6
the last effective date of the ordinance was 2008 when Mr. Buck submitted his appeal, this was already in the 7
record in the ordinance. 8
9
Michael Buck: It is, but it says amended and I want to make sure it is clear that it wasn’t a previously existing 10
ordinance, it was enacted on the date you stated on June 26, 2003. 11
12
Jeff Schmitt: Mr. Chairman, if we could go back to the previous packet of information, what you are trying to 13
provide with this is a comment relative to what? As opposed to me reading all this and trying to ascertain what is 14
in here? 15
16
Michael Buck: During argumentation, I was going to cite a number of different places within that document where 17
Mr. Davis made some claims about the recreation amenities and I will highlight them in detail. 18
19
Larry Wright: We have applicant Exhibit 1-C, what is this again? 20
21
Geof Gledhill: There is only one copy of it, I will circulate it. It is an excerpt about something that is already in 22
evidence. 23
24
Larry Wright: This is already in evidence. 25
26
Michael Buck: What I am trying to be clear on is on Attachment I, page 683 it states the Outdoor Lighting 27
Standards were amended on June 26, 2003. I want to make sure that it is clear that is when they were enacted 28
and they did not previously exist prior to that date with a change that took place on that date. 29
30
Larry Wright: Can we circulate that and send it back to Mr. Gledhill so he will have it for his rebuttal. 31
32
Michael Buck: It wasn’t a change to an existing section of code but an enactment. I have Board of 33
Commissioner meeting minutes from June 27, 2002 which is Attachment 10-B to those minutes. My printer ran 34
out so I don’t have extra copies. I am asking to submit Attachment 10-B which is the Board of Commissioner 35
meeting minutes on June 27, 2002. 36
37
Larry Wright: So this would be Applicant Exhibit 1-D. While this is circulating, could you please briefly state what 38
Applicant Exhibit 1-D is. 39
40
Michael Buck: This is Attachment 10-B from Board of Commissioner Meeting minutes dated June 27, 2002. 41
42
Larry Wright: How is that relevant? 43
44
Michael Buck: It contains a memorandum from the planning director regarding the recreation amenities in the 45
development. 46
47
Larry Wright: This is dated when? 48
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1
Michael Buck: June 27, 2002. 2
3
Larry Wright: Do you have another piece of evidence. 4
5
Michael Buck: Mr. Harvey, I don’t mean to step on your toes but I have taken the evidence you previously 6
submitted and added something to it. It is the walkways in the development. I have made some corrections and 7
you indicated you made corrections to it as well. I also added, because there were questions about sidewalks, I 8
added the locations of sidewalks. 9
10
Geof Gledhill: I am not going to comment on every piece of evidence you submit. 11
12
Larry Wright: This is Applicant Exhibit 1-E. 13
14
Michael Buck: In our last session, Mr. Harvey submitted the number of … 15
16
Larry Wright: This is a graphic of what? 17
18
Michael Buck: The planned development with walkways, asphalt, paths and I have added a number of 19
corrections where there are paths missing from what was submitted and I have also highlighted in yellow the 20
location of sidewalks. 21
22
Larry Wright: We have seen this haven’t we? 23
24
Michael Buck: You have seen the picture before and my additions are highlighting the location of sidewalks. 25
Sidewalks only exist on one side of each street. 26
27
Larry Wright: Okay. This is characterization. Can we go on to the next one please? 28
29
Michael Buck: That was labeled 1-E. 30
31
Larry Wright: Right. 32
33
Michael Buck: I would like to offer the Manual of Acceptable Practices, 1973 Edition from the U.S. Department of 34
Housing and Urban Development, and Chapter 3 of that document. I would like to submit this document as well 35
as one other. If the county has a different version they would like to submit, I am more than happy to defer to 36
that. 37
38
Larry Wright: And your rationale for submitting this? 39
40
Michael Buck: The ordinances cited by Mr. Harvey as being applicable to this development highlight the use of 41
these two documents, the Manual of Acceptable Practices and the Minimum Property Standards as providing 42
guidance for the interpretation of ordinance. 43
44
Larry Wright: This would be Applicant Exhibit 1-F. 45
46
Michael Buck: There is a second one. 47
48
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Larry Wright: We have Applicant Exhibit 1-F and 1-G. 1
2
Michael Buck: For clarity, I would propose that 1-F be Manual of Acceptable Practices (MAP) and 1-G Minimum 3
Property Standards. To be clear, these are only excerpts from much larger documents. I am acknowledging 4
these are excerpts; I did pull out the relevant portions. 5
6
Geof Gledhill: It is probably clear, I am reserving my … 7
8
Larry Wright: Yes. Each of you will have a rebuttal. 9
10
Geof Gledhill: I am reserving my comment on their admissibility or whether or not I will object until you have them 11
all. 12
13
David Rooks: He’s allowing the applicant to identify each of the exhibits and then you will respond. 14
15
Michael Buck: I would like to submit into evidence pages from the shorter Oxford English Dictionary with the 16
definition of the word ‘either’. 17
18
Larry Wright: This is Applicant Exhibit 1-H. Do you have another exhibit? 19
20
Michael Buck: I do. I am not quite sure how to handle these. These are photographs. I showed photographs 21
and there was a lot of objection to them because, my understanding of the objections were not related to the 22
photographs, when I read through the minutes and as I recall from our last discussion, the objections were to the 23
words that surrounding it as I put them on the screen so I have taken the photographs, they are actual 24
photographs as opposed to being put on the screen. There was also concern about relevance of the 25
photographs and I have provided date stamps for photographs so I have a set of photographs I have taken… 26
27
Larry Wright: Are these duplicates? 28
29
Michael Buck: I wanted to divide them out because I figured there may be concerns about the dates, etc. I do 30
have multiple sets and I don’t know the best way to put them forth so objections can be made. 31
32
Larry Wright: Let’s call your photographs a collection, which will be one exhibit… Applicant Exhibit 1-I and please 33
hand those to…. 34
35
Michael Harvey: 1-J. 36
37
Larry Wright: This would be 1-I and please give them to … unless a board member wants to look at them. You 38
will be able to mention these in your final argument. Please give those to Mr. Gledhill. 39
40
Michael Buck: Should I explain these? 41
42
Larry Wright: Explain what each of the envelopes are. 43
44
Michael Buck: These are pictures of various recreation areas, areas planned to be active recreation, taken in 45
2007 and there are actual dates on the back of each picture; 2008, 2009; there are pictures of the same location 46
over time. I have another division of the photos based upon what I felt as previously submitted so this is what I 47
thought was in the record. It contains mostly pictures concurrent to the filing of the appeal but it does contain 48
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more recent pictures so I wanted to set those aside. This is a package of the current state of the newly built 1
picnic area which is in Phase II so these pictures were taken recently. Finally, this was an oversight since we are 2
talking about bridges, etc. but I failed to take pictures, I have taken pictures of all the wooden structures along the 3
pathway including the pedestrian bridge as well as other built objects. I have two paragraphs I would like to read. 4
5
Larry Wright: Is this evidence? It can’t be hearsay. It has to be direct evidence, direct testimony. Do you have 6
that direct testimony? 7
8
Michael Buck: Please give me guidance. If I was told something by someone, not they are telling me something 9
someone else said but I had a conversation with the zoning officer and was told a fact. 10
11
Larry Wright: He can do that can’t he (to David Rooks)? 12
13
David Rooks: Yes. He can. 14
15
Larry Wright: Proceed. You are under oath. 16
17
Michael Buck: Mitch Barron of Newland Communities met in late 2007 on November 26 and then again on 18
December 10 during a homeowner’s board meeting. Mitch Barron of Newland Communities directly told me that 19
Newland was not planning to provide any pedestrian only bridges. He told me that Newland’s opinion was they 20
were obligated to provide any pedestrian bridges. He said Newland would do what the county required them to 21
build, he went on to say that on both November 26, 2007 and again on December 10, 2007 that the county had 22
not required any bridges beyond what we are calling the Motorized Vehicle Bridge. He mentioned in both 23
meetings and I understand this may be questionable so, he mentioned in both meetings that the county did not 24
want pedestrian bridges because of current environmental reasons. These statements were made to me on 25
November 26, 2007 and again at the Churton Grove HOA meeting on December 10, 2007 and I will also…I 26
understand there may be questions about my recollection of events. I took notes after that meeting as well as 27
meeting minutes from the HOA were provided so if there is any question about the validity of those statements 28
and my recollection then I would like to offer the contemporaneous notes into the record. 29
30
Larry Wright: Is this the end of what you are submitting into evidence? 31
32
Michael Buck: I have one other statement. 33
34
Larry Wright: Is that evidence? 35
36
Michael Buck: Same thing but with regard to a conversation I had with Robert Davis, Current Planning 37
Supervisor. 38
39
Geof Gledhill: Who was that conversation with? 40
41
Michael Buck: Mitch Barron of Newland Communities. 42
43
Geof Gledhill: That is not under the rules of evidence, admissible. I’ll object to everything altogether. 44
45
David Rooks: Mr. Chairman that is a statement of someone that was not a party. He can testify to statements 46
made to him by representatives of the county but the testimony he has just relayed to you has to do with 47
statements made by third a party that is not admissible. 48
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1
Larry Wright: Okay. 2
3
Michael Buck: Fair enough. 4
5
Larry Wright: Do you have any other evidence or testimony? 6
7
Michael Buck: I have one other statement and you can let me know if it is admissible. 8
9
Geof Gledhill: This is a statement made to you from? 10
11
Michael Buck: Robert Davis, Current Planning Supervisor of Orange County. In late 2007 or early 2008 leading 12
up to my filing of the appeal I had a chance to have multiple conversations on the phone and in person with 13
Robert Davis. In one of those conversations, he told me that there were originally supposed to be three walk 14
bridges. 15
16
Larry Wright: That is Applicant Exhibit 1-K. Your comments (Mr. Gledhill). 17
18
Geof Gledhill: Mr. Chairman, on behalf of county, I object to 1-B, 1-C, 1-D, 1-E, 1-F, 1-G, and I object to the 19
photographs, I object to the conversation between Mr. Buck and the representative from Newland and I do not 20
object to the Robert Davis thing. 21
22
Larry Wright: We have testimony 1-K that you do not object to. 23
24
Geof Gledhill: 1-K is not an exhibit. I do not object to Mr. Buck’s recollection of the conversation with Mr. Davis. 25
26
David Rooks: I hate to do this. 27
28
Geof Gledhill: The problem is exactly that unless this board wants to recess this meeting for one hour, I can’t go 29
through this stuff. 30
31
David Rooks: As I’m looking at the application from starting point and the issues are before this board. If you are 32
objecting for other than technical reasons, relevancy would be your objection. 33
34
Geof Gledhill: I would object for technical reasons. I am also objecting for relevance. Let’s see, photographs, 35
there has been no foundation laid for the photographs. That is based on me not knowing what is in the 36
document, number 1, number 2, relevance, number 3, in the case of the photographs no foundation laid for them 37
and in the case of the conversation of Mr. Buck and a Newland representative is hearsay. 38
39
David Rooks: I believe the Chair has already ruled that is hearsay and it has been stricken. 40
41
Geof Gledhill: Okay. 42
43
David Rooks: You could go through and spend hours. I would say receive the exhibits and give them the weight 44
you choose to give them. 45
46
Larry Wright: Please explain that. 47
48
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David Rooks: That means you can read everything in great detail and make your decision based on that exhibit if 1
you choose to and if you choose to look elsewhere to make your decision feel free to look elsewhere to make 2
your decision. 3
4
Larry Wright: And how would you define elsewhere? 5
6
David Rooks: The rest of the record. It is like any other trial where you receive a great mass of evidence. There 7
are parts that are important and parts that are not. 8
9
Larry Wright: I’m not comfortable at all. I want a discussion on this from the board. 10
11
Jeff Schmitt: What would be an example of the technical objection? 12
13
David Rooks: The classic was the hearsay where he attempted to….a technical would be that it is somehow 14
privileged or … quite frankly if you had the conversation the conversation will be on relevancy. It is whether the 15
exhibit is actually relevant to an issue before this board to determine. I go back to the application and the basis 16
for the appeal which is where I think you should look for that. You could take a long time and go through and 17
make that decision or you can make a blanket decision to receive all of it or none of it. I tend to resolve that in 18
favor or receiving all of it and making your decision on the evidence you choose to make your decision on. 19
20
Jeff Schmitt: From my perspective in deference to the plaintiff in this case, something that has gone for how 21
many years, I would not object to this being entered into evidence. I would give latitude to us being able to utilize 22
bits and pieces as we deliberate. 23
24
Mike Micol: I concur. 25
26
Larry Wright: We will accept with the exception of the testimony we specifically denied. The testimony with the 27
Barron. We will accept the rest. We are now starting the rebuttals. Mr. Buck, you will be first. Do you have a 28
rebuttal of the evidence that the county brought to the board? 29
30
Michael Buck: I have no objection. I am in favor of putting everything into the record. 31
32
Larry Wright: Okay, do you have a rebuttal of the evidence that Mr. Buck presented to the board. 33
34
Geof Gledhill: We do. We have a rebuttal which includes some additional new items. 35
36
Larry Wright: I didn’t ask you for evidence, I am sorry. Would you present that at this time? 37
38
David Rooks: Remember, he is entitled to cross examine through evidence. 39
40
Geof Gledhill: We had labeled the documents that I want to present to you tonight as County Handouts 1, 2, and 41
3. We can change that to conform to the nomenclature you have just set up. That would be C-1-A, C-1-B, and 42
C-1-C. C-1-A, I would like to ask Mr. Harvey to clarify one correction we want to be made to C-1A and then want 43
to offer that into evidence. Mr. Harvey, would you please tell the board what that correction is. 44
45
Michael Harvey: On page 2 which is in front of you, also in your packet, you also got a copy of this last month 46
and we are reintroducing it. The correction is on page 2 under notes, “regulations in place at the time the special 47
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use is approved most notably those establishing the requirements through the provision of recreational amenities 1
are detailed within Article 6 of the Zoning Ordinance. This should be Attachment H not Attachment I. 2
3
Geof Gledhill: With that correction, we offer this document into evidence. The next document is what was 4
referred to by Mr. Harvey when he testified is County Handout 2 which will we now call C-1-B and that is the 5
document that now the reorganization with relocation of the streets and also the amenities including foot bridges 6
and other bridges. Essentially this is also a document that Mr. Harvey testified to and we offer C-1-B into 7
evidence. It is labeled as Attachment 5 County Handout is now called C-1-B. The next document is C-1-C. It is 8
sheet 9 of the Special Use Permit which Mr. Buck testified concerning but was not in Attachment C. It was 9
overlooked when we put Attachment C together. It is the phasing plan for this project. We want to correct that 10
oversight and put into evidence Exhibit C-1-C. Last, we will call this one C-1-D. It is another color map with a 11
legend on the left. As to that I will ask Mr. Harvey, this is new evidence, I am going to ask Mr. Harvey to explain 12
what this document shows and testify concerning what it is. 13
14
Michael Harvey: Handout C-1-D is a supplemental map denoting trail locations. Mr. Buck has indicated that we 15
provided you a map with your September meeting and one of the trails was improperly noted and one trail was 16
missing. We have corrected those errors after conducting a GPS survey of the trails throughout Churton Grove. 17
The green line denotes project boundary, the black lines obviously denote trails. We have identified the two 18
pedestrian bridges; specifically the corner of the project over the flood plain, Nancy Hill Creek and the pedestrian 19
bridge incorporated Churton Grove Boulevard. Also reminding you as we did last month, there is a pedestrian 20
trail under the bridge connecting trails throughout the area. There are approximately three miles of trails 21
throughout the project. The trails are approximately five feet in width meaning there is 1.8 acres of trails 22
qualifying as active recreation per Condition 27 of the project. We had not previously calculated trail area. We 23
will also stipulate that this does not include sidewalks. Sidewalks are a separate condition in the SUP. 24
25
Geof Gledhill: We offer into evidence C-1-D. 26
27
Larry Wright: Any objection to this? Mr. Buck. 28
29
Michael Buck: I have no objection to C-1-D but I would offer at least one correction, there is another path 30
between Foreman Street and Dunn Place that is not reflected in here. 31
32
Michael Harvey: I understand. Mr. Chair, all I will offer is that it didn’t appear open when we were doing our 33
survey so we didn’t capture it. It doesn’t change the fact that there is approximately three miles of trail, 1.8 acres 34
of active recreation encompassing the trail. 35
36
Michael Buck: I don’t object to the map, I don’t object to the distance, I do object to the second to the last 37
paragraph in yellow that qualifies the acreage as being active recreation. That is an interpretation that I disagree 38
with so I will object to…. 39
40
Larry Wright: We are on C-1-D? 41
42
Michael Buck: Yes. 43
44
Larry Wright: The last paragraph that begins “staff had not previously calculated…”? 45
46
Michael Buck: I object to that characterization. 47
48
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Geof Gledhill: I would address your attention to Attachment C which is the approved special use permit and 1
particularly Condition 27 and particularly that …. 2
3
Mark Micol: You just said that it was not put in the survey, the trails at the time and that is why it is left off, can 4
you reiterate what you just said. 5
6
Michael Harvey: When we did the GPS assessment walking the trails, a trail did not appear to be open, didn’t 7
appear to be a trail. We didn’t walk it because it looked like it was on private property. If Mr. Buck is attesting 8
that it is a public trail, it doesn’t change the fact from my standpoint, staff’s testimony which is there are three 9
miles of trails. 10
11
Mark Micol: There has always been the contention there has been three miles of trails. In Exhibit 1-B from 12
October 2007, on page 17, it talks about three miles of trails with roughly 2.9 acres which adding these two areas, 13
seven acres, pretty much the same conversation, same thought. 14
15
Geof Gledhill: Our contention is that it is correctly characterized as active because Condition 27-B lists a 16
minimum of seven acres developed for active recreational purposes to include the following and included in that 17
listing are bicycle paths throughout and these trails are available for bicycle use. 18
19
Larry Wright: You are addressing which of your C-1s? 20
21
Geof Gledhill: Mr. Buck has objected to characterization of this as active recreation. Our contention is that it is 22
active recreation because that’s what the special use permit says it is. 23
24
Larry Wright: Is there a rebuttal on that? 25
26
Mark Micol: You are not saying sidewalks are active recreation? 27
28
Michael Harvey: We have not counted sidewalks because sidewalks are technically a separate condition in the 29
SUP. 30
31
Geof Gledhill: Sidewalks are not in these calculations. 32
33
Larry Wright: Do you have any more evidence? 34
35
Michael Buck: I do. I was going to object to others as well. What is the status of C-1-D? 36
37
Larry Wright: Let’s wait. 38
39
Geof Gledhill: I am finished with C-1-D. 40
41
David Rooks: You need to rule on whether it comes in or not? I think this is an explanation of his interpretation 42
and I think he is in entitled to tell you that. 43
44
David Blankfard: That is the definition set up by the special use permit…. 45
46
David Rooks: The applicant can disagree and argue to the contrary. 47
48
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David Blankfard: How do you disagree with the definition being in the SUP? 1
2
Michael Buck: That is what is at issue here and what I would like you to decide. 3
4
David Rooks: Now is not the time for that argument. 5
6
Michael Buck: But if the characterization…I know that is the characterization…. 7
8
David Rooks: Mr. Buck, now is not the time for that argument, the county is still proceeding with its evidence. 9
10
Larry Wright: That will be with your closing statement. We are in evidence, rebuttals, and then closing 11
statements. That is how we proceed. 12
13
Geof Gledhill: Is it in evidence? 14
15
Larry Wright: Yes. 16
17
Geof Gledhill: Mr. Harvey, is there evidence in the county files on Churton Grove that Orange County required 18
Scotswood/Churton Grove Planned Development to comply with amendments to County subdivision regulations 19
Section IV-B-7-b related to the specific recreation standards raised in Mr. Buck’s appeal? 20
21
Michael Harvey: No, with one exception. 22
23
Geof Gledhill: What is that exception? 24
25
Michael Harvey: There is a November 2006 letter already entered into the record authored by Craig Benedict, 26
the Planning Director, to Mitch Barron where standards with respect to acceptable areas for recreation was 27
utilized as part of a negotiation on satisfying Condition 27 with respect to required recreational amenities. While 28
the standards were not utilized to discount or exclude, they were utilized and as we testified to the last meeting as 29
well in a contemporaneous negotiation. 30
31
Geof Gledhill: Based on your review of county files pertaining to this planned development, do you have an 32
opinion as to whether any phase or part of the planned development was subject to the IV-B-7-b regulations? 33
34
Michael Harvey: Yes sir, I have an opinion. 35
36
Geof Gledhill: What is that opinion? 37
38
Michael Harvey: They do not apply. 39
40
Geof Gledhill: They were not applied? 41
42
Michael Harvey: They were not applied, they do not apply. 43
44
Geof Gledhill: That is all I have Mr. Chair. 45
46
Michael Buck: I am trying to make sure I understand the order. I don’t have an objection to that but I did want to 47
object to C-1-B and C-1-A. 48
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1
David Rooks: Mr. Buck, if I may, just to keep things moving, what is your objection to C-1-B? 2
3
Michael Buck: That the last paragraph on the first page, the open space passive area is consistent with 4
requirements of Condition 27. I stipulate that the plats say what they say what … 5
6
David Rooks: Mr. Buck, you disagree with the conclusion stated, is that correct? 7
8
Michael Buck: I don’t object to anything else. 9
10
David Rooks: That is not an objection that is an argument, so you will have your time to make the argument that 11
that is incorrect. 12
13
Michael Buck: Okay. 14
15
David Rooks: And your objection to C-1-A? 16
17
Michael Buck: Same thing, note two. 18
19
David Rooks: I think it is the same response. That is an argument you are privileged to make. 20
21
Larry Wright: Do you have any more evidence or testimony? 22
23
Geof Gledhill: Are these admitted into evidence? All these exhibits? 24
25
Larry Wright: Yes. 26
27
Geof Gledhill: That’s all the evidence we have. 28
29
Larry Wright: You have no further testimony? 30
31
David Rooks: Mr. Chairman, typically in an adversary proceeding, the party with the burden of persuasion gets to 32
argue last and I believe you are at the point of argument. If that is the case, Mr. Buck would get the last 33
argument and it would be up to the county to make any argument it chooses to make at this point and then Mr. 34
Buck has the last word. 35
36
Geof Gledhill: Before I begin, I am passing out the document which is Geof Gledhill piecing together plats that 37
are in evidence. It is very hard to see what this project looks like from looking at these incredibly complex plats. I 38
have tried to compile enough of these plats so that this recreation area stands out in its totality. This is not 39
evidence but part of my argument. This is the original. I have cut and pasted the original plat pieces so you can 40
capture this project. 41
42
David Rooks: Were your cows neglected while you were in the process of doing this? 43
44
Geof Gledhill: My cows are being neglected as we speak. I have shown, on these maps, the different phases, 45
parts of this project that are in the maps that have been admitted into evidence. Let me begin by saying that Mr. 46
Buck’s appeal alleges the failure of Scotswood, now Churton Grove, Braddock Park and whatever the 47
commercial development portion of this is called, particular recreation requirements of subdivision regulations. 48
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Let me ask you to go to Mr. Buck’s appeal application. Grounds for this appeal – Violation of site suitability 1
requirements Regulations IV-B-7, Violation of site suitability unity requirements Subdivision regulations IV-B-7. I 2
can continue to read or summarize. Essentially, every one of these concerns with respect to the plat recorded in 3
Book 103, page 63 and 64 which is the subject of this appeal relates to recreation related issues and the 4
calculations thereof. What Mr. Buck is saying is that this plat he is appealing from shows that there is a failure of 5
Scotswood to meet these recreation requirements of the subdivision regulations. There is also contention that 6
Scotswood has not met the SUP recreation requirements. In part this contention compares what was done in the 7
development with subdivision regulation requirements and zoning ordinance requires not with SUP requirements. 8
The documents contained in the record before together with Mr. Harvey’s testimony confirm that in all respects, 9
the Scotswood Planned Development meets or exceeds the recreation requirements of the SUP approved by the 10
Board of County Commissioners. The actual acreage committed to recreation as stated on the development 11
plats passive and active, this is all coming from Mr. Harvey’s testimony. In Phase I, passive, 5.266 acres, Phase 12
IV, 4.98 acres, Phase IIA, south of Nancy Hill Creek, 9.059 acres. That is a total shown of 19.3 acres. Illustrating 13
where the passive recreation is on the handout essentially follows Nancy Hill Creek is where the bulk if not all of 14
this passive recreation is, right through the center of this project. Active recreation, Phase IV, the top lot, .292 15
acres, Phase IV, 5.4 acres, in the upper corner, a private active recreation space that you can see and the multi 16
family, which is not shown on this map, that is 2.381 acres and in Phase IIa has 7.068 of active recreation. That 17
is a total of 15.2 acres excluding the trails. All but the 2.38 acres, well, of those 7 acres is right in the center of 18
the project. And 5 acres is up in the northeast corner and the top lot is somewhere in the midst of all that but the 19
bulk of the passive and active recreation is in the middle of that complex housing development. In addition, you 20
have heard testimony tonight that there are 1.8 additional acres of active recreation in the form of trails that go 21
throughout the project for a total of 15,000 linear feet by Mr. Harvey’s testimony calculations 5 feet wide gives you 22
about 1.8 acres so you have a total shown on these plats and part of this project of 17 acres of active recreation 23
space, 19 acres of passive recreation space. Except for the trails, the bulk of it, trails in this one outlying parcel, 24
the bulk of it is in the center of this project. 25
26
Larry Wright: Does that 19 include the 17 as well? 27
28
Geof Gledhill: Let me see. 29
30
Larry Wright: The 17, you added those up, the 1.8 and 15.2 which was 17 and then you talked about 19. 31
32
Geof Gledhill: No. Those are separate. By my rough calculations, 19.3 acres of passive recreation and 17 acres, 33
including the trails, of active recreation. Our contention is there are 17 acres from this project that are committed 34
to active and there are 19.3 acres committed to passive recreation. Let’s talk about what the special use permit 35
requirements are for recreation. First of all, let’s go to Attachment H which is the 1981 new ordinance that was in 36
effect when this special use permit was approved in 1986 and you heard testimony about how we got to that, 37
couldn’t locate it but the 1981 draft ordinance was the same with respect to these requirements. That is in 38
evidence. 39
40
Geof Gledhill: Let’s go to Section 6.12.2.6 which is that page 6-8 of Attachment H. Attachment H is the 1981 41
Draft Ordinance. Under Recreation Space, 6.12.2.6, Minimum Requirements, “Minimum recreation space 42
required shall be not less that the number of square feet derived by multiplying gross residential land area by the 43
recreation space ratio applying to the lot”. That recreation ratio is found at 5.1.1 of the same ordinance. And for 44
a PD 2 it is .019, for PD 2 for an R5 district, it is either .3036 or .039. Those are the ratios that apply for this case. 45
That is before I take you to what the special use permit says. Let me take you to Section 7.6 which is the same 46
zoning ordinance on page 7-9, “Approval of final plans and reports shall be based on compliance with regulations 47
applying at the time the land was zoned PD status including such specific modifications as were made by the 48
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BOCC in its amending action. Our contention in that regard is that, the Board of County Commissioners set the 1
special use permit standards and this ordinance provision makes that so. 2
3
Larry Wright: The date of that is? 4
5
Geof Gledhill: This is the ordinance that was in effect at the time the special use permit was adopted. I think it 6
was May 20, 1986. Now, let’s go to Attachment C, which is the special use permit itself and the relevant site 7
plans. The first one of the site plans is page 1 of 9 revised on January 2, 1986 which is the site plan that is 8
referred to in the narrative of the special use permit. You can see at the top in the middle that the minimum 9
recreation space ratio is .022. I don’t have a clue where that number came from because the Ordinance says 10
.019. We are on page 1 of 9 under the general notes, number 7, Minimum Space Ratio. I don’t have any idea 11
why that says .022, it should say, in my opinion, .019 but what is important is that it is more than .019 for this 12
purpose and further more number 8 says, “Fifteen of open space recreation area have been provided which 13
calculates to a .025 which exceeds twice what is required by the ordinance that was in effect which this special 14
use permit was approved. What does all that mean in acreage? Those same notes say there are, proposed 15
Zoning Districts R2 is a single family which is what that note refers to, 290.03 acres. You multiply 290.03 acres 16
by 019 you get 5.51 acres. That is the requirement in the zoning ordinance. If you multiply 290.03 by 022, the 17
number that is there, you get 6.388 acres. If you multiply 290.03 by .052 you get 15.08 acres which is what is 18
shown on this plat as being committed to recreation. 19
20
Jeff Schmitt: Prior to putting in the walking trails. 21
22
Geof Gledhill: Without the walking trails, this development has over 15 acres of recreation space which is more 23
than twice what the ordinance requires. The ordinance has a slightly different standard for multi-family and I read 24
that standard to you as well. That standard is .036. For some reason, if you go to the next page in the multi-25
family section, for some reason, the recreation space ratio that is used is .040. I don’t know where these 26
numbers are coming from but in any event, if you use .036 which is what the ordinance standard is, and there is 27
29.5 acres of multi-family space and that is also in that note, you end up with 1.062 acres of required recreation 28
space in the multi-family or if you use the .040 which is what is shown on this map, you end up with 1.18 and all 29
the testimony is that the recreation and the multi-family area is 2.38 acres so it too is twice as much as the 30
ordinance required when this special use permit was approved. Does anyone have any questions? 31
32
Jeff Schmitt: When we do the multiplication of 290 acres times the .19 or .052 or whatever it is and you get the 33
math, that includes from the edge of the street through the sidewalks to wherever, it does not just include a 34
swimming pool where a tennis court, it includes all the grounds that surround that activity or that play thing, right? 35
36
Geof Gledhill: You are right. It includes the tract that is committed to recreation. Either passive or active and 37
that is because at the time of this approval, that is what the ordinance said. 38
39
Mark Micol: It is the plaintiff’s contentions that open space is inferior because of easements, etc. 40
41
Geof Gledhill: I understand that. Our argument to you is I get that but it wasn’t part of what the county was 42
working with on May 20, 1986. Those requirements to make, for lack of a better word, quality open space, came 43
later. And they were under discussion, you have heard testimony about this, contemporaneous with the approval 44
of this project. We have also seen with testimony and seen in exhibits that the county commissioners were told 45
by the planning director that Scotswood was not subject to those changes and I will talk more about that in a little 46
bit. Let me take one more minute with you on this special use permit and ask you to read with me on, Attachment 47
C, second page of the special use page, third page of the special use permit, third paragraph reads, ‘The 410 48
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single family lots, the 216 multi-family units and the 65,460 square foot of commercial complex shall be 1
constructed in accordance with the site plan dated October 19, 1985 and revised January 2, 1986 and all 2
commitments shall be contained in the narrative statement of the project all of which are incorporated herein and 3
made a part of this special use permit”. That means that these ratios in these plans are the ratios that apply to 4
this special use permit. This special use permit is incorporating the regulations that were in place when it was 5
approved. Mr. Collins, in his comment to the County Commissioners in 1986 when the IV-B-7-b regulations were 6
being considered, talked about this project being exempt were his words. I commented at the time that I may 7
quibble with that term but he was on the right track. Essentially, our contention is this project was vested in those 8
regulations that were in effect at the time it was approved. I will tell you this is a variation of the vesting principle 9
that is, in my experience, never been looked at by the courts. Normally, the way vesting comes up in court is the 10
developer complies with or there is an argument as to whether the developer has complied with some statutory 11
vesting principles or whether the developer has complied with what is called common law vesting. The argument 12
is always between the developer and the government and that is what the vesting principle does, it protects the 13
developer from losing the benefit of their permit because of changes in regulations over time That is fairness, due 14
process or whatever you want to call it but in this case, both the permit holder and the government agree that the 15
permit holder has the right to build this development according to these recreation standard in effect when this 16
project was approved. There is no disagreement. There was no challenge to that conclusion and the recreation 17
requirements were amended between the SUP approval and its recording in 1998. Nobody raised this point. 18
The first time it comes up is 2008, ten years after this permit was recorded and over 20 years from the time it was 19
approved and after $100 million dollars and that is just Geof making up a number. You pick the number about 20
what this project is worth. One hundred million dollars later, somebody says wait a minute; you didn’t apply the 21
right recreation standards. That is the underpinning the vesting concept. It’s not fair; I would contend to you that 22
Mr. Buck lacks standing to raise the issue he raised. He lacks standing complained about the county’s 23
application of recreation standards that existed at the time this project was approved. Multiple plats were 24
recorded, multiple site plans were approved and then in 2008, wait a minute, you didn’t do it right. That flies in 25
the face of due process and it is not the county’s position and the developer has not agreed to that change and 26
there was no disagreement among the two of them. We looked at the appeal document that is Exhibit A, Mr. 27
Buck’s appeal, every one of these itemized concerns has to do with compliance with subdivision regulations. 28
This board doesn’t have jurisdiction over subdivision. You don’t have jurisdiction to resolve subdivision 29
regulations issues like you do zoning regulation issues. The underpinning of Mr. Buck’s appeal is the subdivision 30
regulations if you ignore for this purpose when they were adopted and he is complaining about subdivision 31
regulations not being applied. That is not within the Board of Adjustment’s power to determine whether that is 32
true or not. That has to go another place to get a remedy and there is lots of stuff that Mr. Buck has talking about 33
efforts made to go to the County Commissioners or where ever about these concerns, none of which were fruitful 34
and that is the end of that so Mr. Buck cannot raise the subdivision concerns with you in this appeal. That is 35
everything he is complaining about. If you look at the zoning ordinance, every one of them, it has you, this group. 36
If you look at the subdivision regulations, it is completely absent. You are not part of the subdivision regulations. 37
A complaint that the SUP did not meet county subdivision requirements when it was approved, not appealed 38
must go to superior court. Let’s look at the heart of Mr. Buck’s, now he has put a whole bunch of new stuff in 39
here that I have not had time to look at. I am going to look at what he had in here when he presented into 40
evidence last time. His contention in the evidence he has presented to you. Let’s look at the documents that Mr. 41
Buck presented to you in his evidence. Now look at Exhibit K…something you received from Mr. Buck and it was 42
admitted into evidence. What he called Exhibit K. Essentially it is a November 1, 2006 letter from Mr. Benedict to 43
Mitch Barron, Newland Communities about the recreation requirements. In this letter, Mr. Collins is making a 44
point that in their view, there are deficiencies in the recreation and because of those deficiencies; the 45
development currently lacks much of the 7 acre active recreation area required by Condition 27. That is part of it 46
but from the county’s perspective what is particularly important is Mr. Benedict’s reference to the county holding 47
public hearings with changes in these regulations that came about later after the permit was approved and his 48
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statement in that letter. This information is provided for perspective regarding the origin and importance of the 1
recreation recommendation of Condition 27 since the rules were not adopted at the time the SUP was approved. 2
Our argument to you about this letter is this is a negotiation between the planning department and the developers 3
over what recreation should be in this development. It is a negotiation because the condition of the special use 4
permit nowhere makes a requirement for recreation except in the ratios we have talked about before. In the 5
gross land area ratios we have talked about before. The entire recreation component of the special use permit is 6
couched in recommendation terms. Mr. Benedict is fighting for additional recreation over what the ordinance 7
required in the spirit of these later adopted regulations. Mr. Harvey’s testimony earlier tonight, nowhere in the 8
county’s files is there evidence that the county was requiring the later adopted recreation standards in this 9
project; they were using those to negotiate a better deal in the project. 10
11
Jeff Schmitt: That is the essence of this Attachment K. 12
13
Geof Gledhill: That is the essence of Attachment K. Let me go to Attachment L which is the next one in Mr. 14
Buck’s package. It is May 22, 2002 letter from…this is funny because I have no recollection of signing this letter 15
but I signed it. John Link wrote this letter, Geoffrey Gledhill and Craig Benedict wrote this letter to James Moore 16
in 2002 and that is my signature so I fess up to having written this letter or at least signing it. What this letter is 17
about wholly and exclusively is the importance and significance of both the timing and phasing of this project. 18
Remember the reason why there was a delay between the special use permit approval and the recording of it 19
was Hillsborough did not have public water supply adequate to serve this project. The phasing and timing of the 20
aspects of the development of this project were intended to coincide with Hillsborough’s water supply expansion 21
getting up and running. The bottom line is this letter concerned solely and exclusively the phasing and timing of 22
the project so that it would not be developed to outstrip the public water supply. It happens to use maps that 23
show the phasing plan that show bridges. I argue to you from the bottom of my heart, those bridges on those 24
maps are meaningless. This map is about phasing and timing and has nothing to do with bridges across Nancy 25
Hill Creek. Let me take the opportunity to take you back to the special use permit and that is Attachment C. I 26
want you to go to the conditions that are in that special use permit which begin on Book 1709, page 104. There 27
are 44 of them. I am going to illustrated this and then tell you what it says. Reading number 1, “The grantee of 28
this special use permit shall post, number 2, Security shall be provided, number 3, All necessary easements to 29
permit utility…..search shall be provided, the grantee shall promulgate roads, parks, etc. shall be, shall be, shall 30
be, every single one of these conditions except Condition 27 says “shall be”. Number 27 doesn’t say shall be, it 31
says, “the following recommendations apply to the recreation area and facilities”. The county didn’t have the 32
authority to say “shall be” when this special use permit was attached. The county did the best it could and said 33
we recommend that you do this. The planning staff took that and ran with it in the negotiations in the process of 34
getting these plats developed and put on record and did the best it could to get as much consistency between the 35
recreation supplied by these developers and the recreation recommendations contained in this special use 36
permit. 37
38
Geof Gledhill: In summary, Mr. Buck’s appeal fails because the recreation requirements he contends are not met 39
were not in the zoning ordinance when the SUP for this project was approved and not applicable at all. They 40
were adopted after this project was approved. Those commitments were honored by the county when the special 41
use permit was recorded in the language I read to you earlier which was, with respect to the recreation on 42
speaking because that is really the whole… 43
44
Larry Wright: What was honored? 45
46
47
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Geof Gledhill: The recreation requirements in the ordinance at the time the permit was approved were honored 1
by the county and that honoring was throughout the evidence you have heard and it is specifically honored in the 2
way the special use permit was written, all commitments shall be constructed in accordance with the site plan and 3
the revised site plan and all commitments shall be as contained in the narrative statement of the project all of 4
which are incorporated herein made a part of this special use permit. The site plan contains the ratio, the 5
recreation requirements, everything else are recommendations. Continuing on that theme, 7.6 of the zoning 6
ordinance at the time, approval of final plans and reports, shall be based on compliance with regulations applying 7
at the time the land was zoned PD status with this important language, “including such specific modifications as 8
were made by Board of County Commissioners in its amending action”. The amending action was the recording 9
of the special use permit. Those requirements when this special use permit was recorded are the recreation 10
requirements that were met in this project and all the recommendations with respect to those recreation 11
requirements were a matter of negotiation between the developer and the county. The holistic look at this project 12
is that it has whatever 19 and 17 adds up to, it has over 30 acres of recreation area, passive and active 13
recreation area which far exceeds recreation requirements at the time of the approval of the project. The staff’s 14
efforts at getting as much compliance with the recommendations that are contained in the special use permit 15
should be, in my opinion, applauded and this appeal should be denied. Thank you for your attention. 16
17
Larry Wright: Were sidewalks in the zoning or any part of that requirement? 18
19
Geof Gledhill: Michael, do you know off hand? 20
21
Mark Micol: It states, “Sidewalks shall be provided on one side of the street along all streets”. 22
23
Jeff Schmitt: Special condition outside of the recreational requirement. 24
25
Geof Gledhill: Let me use that for one more thing I failed to mention. Although, I don’t think it is part of Mr. 26
Buck’s appeal, he has raised questions about lighting. I read through his appeal document and I don’t see any 27
reference about the lighting. I think his contention there is that the lighting standards changed and the county 28
required updated lighting standards be applied. What the special use permit says about lighting standards is that 29
“street lights approved by the Town of Hillsborough shall be installed throughout the development as each phase 30
develops”. That is why lighting standards aren’t the same as recreation requirements. There is one more thing 31
but I want to make sure I have all your questions answered. 32
33
Jeff Schmitt: The last point here, does that mean the county defers to the town for whatever the lighting is that’s 34
needed and there were no specifications. I don’t think there are any specifications, street lights, outside of just 35
saying that the street lights shall be in here as approved by the Town of Hillsborough. That’s all we’ve got. 36
37
Geof Gledhill: That is all the special use permit requires. Whatever happened about street lights, you are 38
probably going to hear from Mr. Buck about what happened about street lights and they are not part of his 39
appeal. But whatever you hear about those, it is also a negotiation to the extent that Hillsborough was not 40
involved in the final process about that. 41
42
David Blankfard: You made a statement that the County Commissioners could not require the recreation, number 43
27, why can’t they require it? 44
45
Geof Gledhill: Because the ordinance at the time did not authorize, I won’t say they couldn’t have required it but 46
the ordinance did not authorize them to require it. Sometimes the government over reaches. 47
48
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Mark Micol: So when they negotiate, so the SUP has been approved based on the 1981 Ordinance, then they go 1
back and negotiate, what mechanism is in place to hold the developer’s feet to the fire to make sure…there is 2
not, right? 3
4
Geof Gledhill: There is none. Here is the answer, when the plat is recorded, they are stuck. Everything else is 5
like preliminary…the last time we were together, there were preliminary plats and there still are preliminary plats 6
in here. All that is just what it is. The only thing that matters is the recorded final plat. Then the negotiation is 7
over. You get what you get when the project gets platted. 8
9
Mark Micol: So your position is like the foot bridges, it says three foot bridges, the reduced to…they got two, so 10
that was all negotiation. 11
12
Geof Gledhill: That is exactly right. 13
14
Mark Micol: Wasn’t “a shall”. 15
16
Geof Gledhill: It wasn’t “a shall in” fact, the foot bridges are in 27d, it is part of the recreation. Three foot bridges, 17
you heard Mr. Buck about how there are some environmental issues that arose but it doesn’t matter why there 18
are only two, the two is what they got, the two is what they negotiated and the foot bridge requirement was not a 19
requirement, it was a recommendation. 20
21
Jeff Schmitt: Mr. Gledhill, would you go over the sequence of the dates from when the special use permit was 22
approved to when the development actually started because there is a huge timeline involved. 23
24
Geof Gledhill: The special use permit was approved May 20, 1986. It was in March of 1998, I don’t remember 25
the exact date, when the special use permit was approved, excuse me, when the special use permit was 26
recorded. 27
28
Jeff Schmitt: Say that again. 29
30
Geof Gledhill: There was a gap from 1986 until 1998 when nothing happened because everybody was waiting 31
for Hillsborough to have an adequate water supply for this project. I don’t want to put it all on Hillsborough, it was 32
more complicated than that. It had to do with Environmental Management. It was a big thing to get this water up 33
and running but the bottom line is that nothing happened that is in evidence between 1986 and 1998 with respect 34
to this project. 35
36
Jeff Schmitt: In this 12 year hiatus, there is no standing that says because of this inordinate time horizon from 37
when something was approved to when it became effective, if I can say it in that way, that when the special use 38
permit became effective 12 years later, all the language contained in it, no matter what had transpired with county 39
rules and regulations in that time period, was still based on when it was put into effect 12 years prior to that. 40
41
Geof Gledhill: That is the county’s contention and the way the county operated. 42
43
Jeff Schmitt: That is what Mr. Buck will argue against. 44
45
Geof Gledhill: He will probably argue against that and in support of what the county did, I’ll point to this language 46
in the special use permit that refers to these site plans which contain a recreation requirement, the ratios so even 47
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though it is 1998 and 1986 and even though stuff has happened with respect to recreation, you still had 1
recommendations and you were referred to the site plans in the special use plan. 2
3
David Blankfard: Do special use permits ever expire? 4
5
Geof Gledhill: They can. There are two answers to that, they can have an expiration date by their terms and 6
under new laws, they are regarded as what are called site development approvals, site specific development 7
approvals and site specific development approvals do have time limits under the law as it is now. 8
9
Jeff Schmitt: Larry, when we did Buckhorn, it had an 18 month horizon on it from the date that was done, 10
correct? 11
12
Larry Wright: Yes. 13
14
Jeff Schmitt: This must be the change in the law that Geof was referring to. 15
16
Geof Gledhill: Probably it was one imposed by the County Commissioners which can be done too. You can do it 17
two ways, you can impose a time limit or you can rely on the county’s ordinance which now has the site specific 18
development timelines in them. The County did not have those in 1986. 19
20
Larry Wright: I want to ask a question that has been answered a couple times. I want to ask it this way. I know I 21
am repeating Geof’s question so the SUP was what is codified in the SUP as of May 20, 1986. That stands 22
through 1998 and just because it went into effect in 1998, we are still operating on the BOCC SUP on May 20, 23
1986. We have the zoning ordinances that were in effect on that and it is my understanding that was 1986. I 24
have heard that word, the zoning ordinances, when were they…well ordinances are amended all the time. 25
26
Geof Gledhill: There was contemporaneous with the project approval, the process of this project being approved. 27
They were contemporaneous public hearings about, let’s get our recreation standards in shape folks, they aren’t 28
anything and those, the first step in that was the amendment to the subdivision regulations IV-B-7-b which 29
occurred also in 1986, I think August of 1986, I think August of 1986 after this special use permit. 30
31
Larry Wright: That is what I wanted to know. 32
33
Geof Gledhill: That is what prompted Mr. Collins, I’m sorry, I keep saying Marvin Collins, dear friend, that is what 34
prompted Mr. Collins to say during consideration by the Board of County Commissioners of the IV-B-7-b 35
amendments that they don’t apply to Scotswood. 36
37
Larry Wright: Okay. 38
39
Geof Gledhill: Let me leave you with two thoughts. The first is, if you are inclined to use your influence to say to 40
the County Commissioners, don’t make any “recommendation” conditions in future special use permits and 41
number two, don’t delay effective dates for any reason. If the project isn’t ready, the project isn’t ready. If you 42
don’t have water supply to do it, don’t do it. This was the Orange County’s first foray in anything like this. 43
Everything else had been three lots here, four lots there. This is a big deal and no one in county government had 44
experience with it but don’t let them do it again. Use your influence. If you can pass that on whether up the food 45
chain or down the food chain but pass it along. Thank you. 46
47
Larry Wright: Before Mr. Buck starts I want to take a five minute break and be back in five minutes. 48
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1
Michael Buck: Let me start off on a note of conciliation and echo Mr. Gledhill’s comments. From all the research 2
I have done, I would concur whole heartedly that whatever influence you have to prevent such long lag times in 3
the development delays and so forth, I think it certainly…as a resident of the community, I can attest to the fact 4
that it has certainly compounded some of the issues we have felt. Let me say if there was any question, I want it 5
to be clear that I am not challenging the validity of the special use permit in any way. I agree with the special use 6
permit, I want its provisions enforced so if there was any concern or question about that I want to be clear that I 7
am not challenging the validity of the special use permit. I am saying that the plat for Phase IV was invalidly in 8
approved and I am saying it was invalidly approved because it makes representations that were inconsistent with 9
applicable ordinance. It makes it impossible to fulfill the special use permit condition so the enactment of that plat 10
makes it impossible to adhere to the provisions of the special use permit. Implementing the plat I would say 11
introducing defacto changes to special use permit condition and so for these reasons, the Phase IV plat should 12
have not been approved when it was approved. I am going to start by talking about what is the relevant date. 13
We have had some of that discussion already. The SUP does mention two dates, May 20, 1986, the date which 14
the special use permit was approved and then on March 31, 1998, the special use permit effective date and the 15
date on which the land was rezoned. The choice of dates, my contention, and the choice of dates effects which 16
ordinances apply. I would argue the later date is applicable. I would further say that the use of the earlier date is 17
essential to the county’s case. If you do agree with me that the later date is the proper date to use for all the 18
subsequent conversations we will have, I think it is very difficult for the county’s case to prevail. I would like to 19
point out that the use of the later date is not essential to my case. I do believe that you should use the later date 20
as the relevant date for determination of which ordinances apply but even if you disagree with me, I will, using 21
evidence already in the record, I will argue that I can still prevail using the earlier date. What is the evidence for 22
the March 31, 1998 date that I believe is the appropriate date and Mr. Gledhill has already referred us to Orange 23
County Zoning Ordinance 7.6. Additionally, I will point to the special use permit itself. This is a summary of what 24
evidence I am going to get into. I am going to point to the zoning officer’s own testimony to argue for the use of 25
the March 31, 1998 date. I am going to point to the fact that the county has already enforced ordinances that 26
were enacted after March 31, 1998 but certainly after the 1986 date that the county wants you to review and I am 27
going to point out that there is a lack of compelling contrary evidence that precludes our use of an earlier date. I 28
also am open to any questions, I see you have dinner in front of you so I hope that I am clear enough with the 29
presentation that you won’t have to go through your documents. I am going to try to put it all on the board. 30
31
Karen Barrows: You said something about page 4, not being valid, what are you thinking of when you say that 32
Mr. Buck? 33
34
Michael Buck: My appeal challenges the validity of the approval of the Phase IV plat which took place in 1998 so 35
I am saying the Phase IV plat ought not to have been approved because of the issues I am going to lay out. 36
What is the evidence for the March 31, 1998 date? I am going to point to the exact same ordinance Mr. Gledhill 37
was pointing to and through all the slides, I will highlight where I am getting my information from and put on the 38
screen the actual evidence so this red highlighting will always be the location of the evidence. Attachment H, 39
page 79, “Approval of final plats, plans and reports shall be based on compliance with regulations applying (and 40
this is key) at the time land was zoned to PD status”. It is the zoning date that is critical. What was the zoning 41
date? The special use permit specified, in fact, in three different places, the special use permit tells us that the 42
zoning date was March 31, 1998. I am only highlighting one of them there but you will see that it says, “the 43
change in the zoning of the property and the special use permit effective date are March 31, 1998, the date of the 44
recording of this special use permit. I don’t dispute the fact that conditions were approved in 1986 but the actual 45
rezoning didn’t take place until 1998 on March 31. Additional evidence is highlighted by looking at the special 46
use permit itself. You will see sprinkled all over the last page the dates on which the signatures took place. It 47
was 1998 when the special use permit was put into effect. The other thing you can find in the special use permit 48
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is the fact that it refers to ordinances that did not exist in 1986. The special use permit, inside the conditions of 1
the special use permit refers to ordinances not in existence in 1986 specifically Condition 44 refers to Section 2
7.2.8 and 8.4.1.11 which are not in the Orange County Zoning Ordinance that the county has provided in 3
Attachment H. I would also like to point to the zoning officer testimony to provide some evidence for the fact that 4
the March 31, 1998 date is what was being used. The zoning officer stated on the record that … and let me say 5
one thing here, I have talked with Mr. Harvey over the years and I would like to say that he was not party of any 6
of this, he did not join the department sometime after this occurred so I wanted to be clear that what Mr. Harvey is 7
testifying to took place prior to his involvement in the issues that are disputed here. In any case, he did say that 8
he discovered in 2012 that no 1986 copy of the ordinance existed in county files. When I hear that, it is difficult 9
for me to believe that the county was following the provisions of ordinance for which it had no copy. As additional 10
evidence for the case of the March 31, 1988 dated, I pointed to the fact that the county has enforced ordinances 11
that were enacted after, not only after the 1986 date they claim applies, the county’s position is that 1986 is the 12
demarcation point, we can’t enforce any ordinance, they are claiming they cannot even enforce the subdivision 13
standards enacted on August 4, 1986 but a few months after the approval of the conditions. They are saying we 14
can’t even enforce what happened in 1986 and yet we find they did enforce the Outdoor Lighting Standards, 15
Ordinance 6.3.1 which the record shows was enacted on June 26, 2003. The county is enforcing ordinance 16
selectively if they are enforcing a June 26, 2003 ordinance but not enforcing a 1986 ordinance. This is just 17
further evidence for … on this slide what I was pointing to is the Board of County Commissioner meeting minutes 18
which talked about the enactment of the Outdoor Lighting Standards. On the next slide … I have here TBD 19
because I didn’t know what it was going to be called. In Exhibit 1B, the zoning officer in a memo to the Board of 20
County Commissioners from October 23, 2007 on page 8 and 9 speaks to the enforcement of the Lighting 21
Ordinance and he said, and I say zoning office and I realize that is incorrect, it is the Current Planning Supervisor, 22
Robert Davis, at the time, he says, “Phases I and IIA have standard fixtures and Phase IIb, IIc and II have cutoff 23
fixtures, i.e. dark skies compliant, the lighting ordinance requiring cutoff fixtures was passed after Phases I and 24
IIa were platted”. I content this offers further evidence that the county is enforcing ordinance for 1986. The date 25
on which the county is saying they can’t do anything after that. An additional example of an enforcement of a 26
later ordinance can be found by looking at the plat in Attachment B and this is the plat that is at issue here, the 27
Phase IV plat, there is a certification on the plat signed by the developer, and the certification attests that the plat 28
will adhere to provisions of Orange County Lighting Ordinances as set forth in the Orange County Zoning 29
Ordinance. Not to reiterate too much but the ordinance was enacted after 1986 and it was enforced after 1986. 30
Additionally, there is another certification an acceptance of dedication certification contained on that same plat in 31
Attachment D and that plat was signed by the county manager. Well the subdivision ordinance that required the 32
acceptance of dedication certification was enacted with it, Subdivision Ordinance 5D6b which was not enacted 33
until August 6, 1990 per Attachment J so we have multiple examples of county enforcing ordinance after 1986. 34
The county has spoken … I believe there is no compelling evidence for the use of the May 20, 1986 date and if I 35
recall correctly the only argument the county has offered for the use of the 1986 date, is the statements of Marvin 36
Collins, who spoke in 1986 to the Board of County Commissioners with regard to the subdivision ordinances and 37
the county’s contention is that his statement, and it is very small there, in pink at the bottom, he said, “The 38
Scotswood project would be exempt from the ordinance since it was already approved” and I don’t dispute that is 39
probably exactly what he said however, if you read the context in the meeting minutes, what I think you will find is 40
he was responding to some questions about specific sections of that ordinance specifically, he was responding 41
and I highlighted here in orange, he was responding to the payment in lieu of dedication, Section IVB-7-b-5 and 42
IVB;7b6 and his statement in response to those sections of ordinance made perfect sense because the payment 43
in lieu of dedication provision requires that the payment in lieu of your dedication happened at the time you 44
submit your planning documents and that you are going through the process of approval. Well Scotswood had 45
already gone through that process so certainly they would be exempt. They can’t use that portion of the 46
ordinance because they have already gone through that process. I would further point out that his statement is 47
not this positive and what I mean is that he may have said that but that doesn’t make it true. Again, let’s go back 48
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to Section 7.6 which says, “Approval of final plans and reports shall be based on compliance with regulations 1
applying at the time the land was zoned. It had not yet been zoned. The approval had been made for the 2
conditions but the zoning had not taken place and would not take place until March 31, 1998. I wasn’t planning 3
on speaking on this in much detail but since Mr. Gledhill brought it up I would like to point out there is not vested 4
right here. Mr. Gledhill has asserted that a vested right does exist and I would submit to you that it does not 5
according to Orange County Ordinance or North Carolina General Statutes and the reason for that is because the 6
period of vested right cannot exceed five years and let me actually quote here from North Carolina General 7
Statute, Section 153A-344.1 Vesting Right, “Duration and termination of Vested Rights, Number 1, A right which 8
has been vested as provided for in this Section shall remain vested for a period of two years, this vesting shall not 9
be extended by any amendments or modifications to a site specific development plan unless expressly provided 10
by the county. Number 2, notwithstanding the provisions of subsection D1, a county may provide that rights shall 11
be vested for a period exceeding two years but not exceeding five years where warranted in light of all relevant 12
circumstances”. 13
14
Jeff Schmitt: What is the date of this statute? 15
16
Michael Buck: I believe this should be verified but the date I have in my notes is, it was … the overall section 17
dates from 1959 but has multiple updates since then so I cannot speak with authority as to whether or not this 18
was in effect at whatever time point we need to talk about but I think becomes a question as well. Does this have 19
to be in effect in 1986 when the conditions were approved, does it have to be in effect in 1998 when the zoning 20
actually took place or is there some later date. The other thing I would point out is that the vesting, there is a 21
process by which the vesting has to happen. There is no evidence before you that shows there was vested right 22
given in this case. I am not immune to the vesting process right. What Mr. Gledhill says is totally correct. If you 23
are a developer, you want to know that for the project you have got, a long term project that you are going to be 24
able to have rules that are consistent for your project. It makes total sense but whatever date we use for this 25
project, there is no way to get around the fact that by 1998, more than five years had passed since 1986 and 26
even if they didn’t vest until 1998, the expiration, look at what the General Statutes actually say, you have to have 27
applied for building permits, they had not applied for building permits for subsequent phases. Let’s assume for 28
the sake of argument that a vested right did exist. I don’t believe that one did and I don’t believe there is any 29
evidence whatsoever that a vested right existed by let’s assume a vested right did exist. There is no prohibition 30
against additional and I am quoting from North Carolina General Statues 153A-344.1 Subsection E2, “The 31
establishment of a vested right shall not preclude the application of overlay zoning which imposes additional 32
requirements but does not affect the allowable type or intensity of use or ordinances or regulations which are 33
general in nature and applicable to all properties subject to land use regulation. Nothing of concern here today 34
affects the intensity of the use. I am not challenging the land use intensity statistics, I am saying the active 35
recreation components of the project and the ordinances that describe what is required, and those are applicable 36
even in the face of a vested right. I would say there is substantial evidence that the proper thing to use here is 37
the 1998 date. We have the Zoning Ordinance 7.6. We have the special use permit text itself which tells us that 38
the special use permit was enacted, was rezoned in 1998. We have the zoning officer testimony. We have 39
county enforcement of ordinance enacted after 1986. We have, what I believe to be, the lack of any vested right 40
and we don’t have any compelling evidence of a reason to use the 1986 date. As I said, the county’s argument 41
requires the use of the 1986 date. The county has put forth no evidence to say that, well the land really is of a 42
quality that is acceptable for active recreation. They have put forth no evidence that lets us use the land in 43
question with the subdivision ordinance enacted in late 1986 so if the county does not prevail on this point, I 44
believe that is a very difficult burden for them to overcome. I am going to show you evidence that even if you 45
disagree with me I think the case is pretty strong that 1998 is proper date but even if you disagree, I would like to 46
show you evidence where I think that I can still prevail on the merits. That is a discussion of the relevant date. I 47
am going to move onto another section where one of my contentions is the inadequate active recreation acreage 48
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provided in the project. I am going to set context for Phase IV. Phase IV was the last of the project phases for 1
which Newland, the developer, had an interest in the project. Newland was not working in other areas of the 2
project so it is the last phase for a particular developer. Just for information, concurrent to the work going on in 3
Phase IV, there is ongoing work in the multi-family phase. The only remaining significant area acreage was what 4
was in Phase IV. In 2008, you have got this large tract of land in Phase IV and to the extent that we need some 5
additional active recreation, we need some additional space that is the only place you will get it. You are not 6
going to get it in the areas that have already been built and you are not going to get it in the multi-family. There is 7
just not enough acreage. Additionally, the county had established expectations from one of the prior developers 8
and this will become key. There was some testimony that talked about the fact that the Newland interest in the 9
project was acquired from an earlier developer, Jim Moore and Churton Grove, LLC which is still operating in 10
multi-family area but there was a time when some ownership rights switched but I will show in the record where 11
the county had expectations that they established with that previous developer and yet the new developer comes 12
in and now all of the sudden the county backs off on those requirements they established with the earlier 13
developer to the detriment of residences of the neighborhood. Additionally, and this is key for the reason I have 14
to go into so much detail to paint the picture here. I mentioned when I first spoke before you the mind numbing 15
detail that I was going to get into and I apologize for that but in order to adequately understand the issues with 16
the recreation space, it is important to understand the as built situation with regard to recreation so you can make 17
a determination of … given what was on the ground with earlier phases and what the plat for Phase IV shows 18
allow compliance with the special use permit so I have to get into some of the understanding of the as built 19
situation. For evidence of the acreage and adequacy, this is the evidence I am going to use to make my 20
argument. The planning director letter which we have already talked about, zoning officer memorandum to the 21
Board of Commissioners, the zoning officer’s digitized view, the plan-o-meter estimates, photographic evidence, 22
the developer site plans and Orange County Ordinance citation. After I go through that evidence, I will walk 23
through why again I think it is clear if you use the later date that all this applies but even if we use the earlier date, 24
the argument still holds that the acreage is inadequate. Looking at the planning director letter; this letter is dated 25
from the planning director in 2006. I encourage you to read this letter in its entirety. I am going to quote sections 26
out of it and I don’t want to be accused of quoting anything out of context. Please read the entire letter 27
completely. He says, I am quoting the planning director, Craig Benedict from November 1, 2006 in his letter, 28
“Development presently includes approximately .4 acres of active recreation, .4. Number 2, “The site 29
development plan shows five acres in one central area for recreational purposes that has not been installed. The 30
development currently lacks much of the seven acre active recreation area required by Condition 27. Note the 31
word required. Next bullet, In reference to “active recreation plan on Phase IIa plat”, page 80, and the planning 32
director says, “Much of this 7.06 acre recreation area was never put on the ground.” Let me pause here and say 33
the county has put into evidence the plats and I don’t dispute that the plat does say there is 7.06 acres of active 34
recreation on that parcel. It is definitely there in the plat. That plat was filed well before this letter was written on 35
November 1, 2006. Despite what is written on the plat, the county in the guise of the planning director and I am 36
going to show other instances as well, is saying that, yeah it says 7.06 acres of active recreation but we know 37
that is not adequate, you have got to do more. I am showing here a picture of what the active recreation 38
acreage looked like circa 2006 because I want you to see as he is writing this letter; here is what is actually there. 39
To give some provenance to this picture which is already in evidence in Exhibit 7 but how do I know that it is from 40
about 2006 because right here, you see there is no bridge which was built 2007/2008 completed early 2009 so 41
this is what the parcel identified as active recreation contained at the time of the letter and just for purposes of the 42
record and to point it out. We have a parking lot, a club house, swimming pool, a tennis court, a basketball court 43
and a top lot. I am reading now again from the planning director’s letter, “Planning staff’s interpretation of the 44
SUP and rezoning plan indicates there is currently a deficiency between the acreage provided for active 45
recreation in the development and the acreage necessary for compliance with Condition 27”. I am skipping some 46
text now, “In addition to the recreation space referenced above that have been installed, the site development 47
plan shows five acres in one central area for recreation purposes, i.e. play areas that has not been installed; 48
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therefore, the development currently lacks much of the seven acre active recreation area required by Condition 1
27. 2
3
Larry Wright: Mr. Gledhill, you just referred to Condition 27, Mr. Gledhill said he went through and I’m sure you 4
have heard the road shall, the road shall and then he said that Condition 7, these are the following 5
recommendations and he contended, his argument was that the county was doing everything that it could to 6
increase this recreational area, could you address that please. I want you to address the following are 7
recommendations where 19, 20, 21, 22, 23, 24 shall and this is a recommendation, could you really differentiate 8
that and what point are you making here with a recommendation rather than a shall. 9
10
Michael Buck: I actually have a fairly detailed rebuttal to the recommendation argument but .. 11
12
Larry Wright: Well, it is right here number 27, you referred to that so this is the point I am trying to make and I 13
want to know what this letter is. It sounds like this is exactly what Mr. Gledhill was saying was going on here. 14
15
Michael Buck: Please read the letter in its entirety because again, I want to be quoting accurately and making 16
sure you have a proper understanding of the letter but I will point you to Mr. Benedict’s concluding statements in 17
the letter, “I regret that we are unable to agree on a mutually agreeable resolution at our last meeting that would 18
satisfy the county regulations, existing SUP and Newland’s goals for the project. … If Newland believes that 19
staff’s insistence on the inclusion of recreational areas in conjunction with the development of Phase IV contrary 20
to the intent or harmony of the board originally approving and having jurisdiction over the SUP, i.e. the County 21
Commissioners, then Newland may appeal the determination to the board. We can provide you with the appeal 22
application material upon your request.” That is key I think the planning director is doing exactly what he should 23
be doing, he is saying to them, here is what is on the ground; here is what you have to provide in order to 24
proceed. If you don’t agree with us, you may file an appeal and seek a provision from the approving board to do 25
what you wish to do that you think we as the planning board are improperly interpreting. That was the 26
appropriate tact for him to take at that point. 27
28
Larry Wright: How do I know this isn’t just a snap shot in time? I can read the letter but it can be snap shot in 29
time and I don’t know what happened before or after and I don’t think we are really addressing this. This could be 30
a series of negotiations. 31
32
Michael Buck: It certainly could be but if you read the letter and I will show you what was developed, you will see 33
that the negotiation wasn’t a negotiation … 34
35
Larry Wright: Proceed. 36
37
Michael Buck: I don’t want to lose sight of this. On page 3 of his letter, under past discussion, I am going to 38
quote the planning director, “Planning staff did receive an early proposal from Newland locating an open grassed 39
area of 100 feet by 240 feet with parking comprising a total of less than one acre. This open grassed area is 40
located underneath high voltage electric transmission lines. Although it may be reasonable to permit some 41
overflow recreation area parking under such areas, it is less than desirable for the majority of the active recreation 42
area in this development to be located underneath high voltage lines. The current county code supports that 43
premise by not permitting recreation activities in public utility transmission easements. Further, the small size of 44
this open grassed area is insufficient to satisfy Condition 27”. There is part of the negotiation that you are asking 45
about where he is laying down the marker that says what you have proposed, this field of 100 feet by 240 feet 46
insufficient, not going to fly. If you don’t like it, provide more land or go to the County Commissioners and seek a 47
dispensation. What you will see when we get to, and I hope I have a picture of it, what was actually, in fact you 48
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can see it on the plat, what was actually provided is an open grassed area of 100 feet by 240 feet with parking so 1
to the extent that this was a negotiation it was unfortunately a capitulation entirely on the part of the county. 2
3
Mark Micol: Was that site underneath the high power lines? 4
5
Michael Buck: It is slightly off to the side of the power lines. The power line easement encroachment partly on it. 6
7
Unidentified Board Member: It sounds like the county got that is what negotiations are. Everybody gives up a 8
little bit so it sounds like that what negotiations is going on that the county wanted it totally off and Newland said 9
well I’m not going to be able to use that land so let’s use it as an open so let’s meet somewhere in the middle 10
where part of it is there and part of its off. I am saying it sounds like it is still negotiating. 11
12
Michael Buck: I understand there was negotiation. Please read the letter in its entirety. The small size of this 13
open grassed area is insufficient to satisfy Condition 27 so it’s partly the fact that it was under a high powered 14
transmission line but it is also the small size which didn’t change in the negotiation. Continuing with the planning 15
director letter so the Phase IIA acreage inadequacy was recognized as early as June of 2001 and I am showing 16
here is the plat for Phase IIA. It is evidence as Attachment D, Book 88, page 80 and it does indeed say on the 17
plat 7.0688 of active recreation area but going back to the letter from the planning director, “Our discussions 18
included reference to the Phase IIA plat that contains written language showing 7.06 acres of active recreation 19
area where the clubhouse, tennis and basketball courts are located however, much of this 7.06 acre active 20
recreation area was never put on the ground, furthermore, concurrent with the Phase IIA plat recordation, Jim 21
Moore, principal of Churton Grove LLC brought in sketches for Phase IV that were shown to Robert Davis and 22
me. These future Phase IV sketches included three to four acres of open areas for soccer or multi-purpose field. 23
Each soccer or multi-purpose field is typically 1.5 to two acres. Planning staff did not require that all the 24
recreational area called in Condition 27 be included in Phase IIA because the original developer evidenced his 25
intent to provide sufficient open areas in conjunction with the development of Phase IV. So this is an example of 26
that promise over time that I talked about. The original developer was going to do some stuff in Phase II shown 27
here and for whatever reason they decided, no we are going to shift some of that Phase IV, the county says okay 28
we can do that that is fine. We see on your concept plan, you are going to provide there to four acres of open 29
areas for soccer and multi-purpose fields. 30
31
Unidentified Board Member: I’m like Larry; you are taking a lot of these correspondences out of context. We 32
have sat here and watched over a five year period letters that were written … the bottom line is what is on the 33
ground today so you do disagree with Mr. Gledhill’s math where he came up with 17 acres of active open space; 34
do you disagree with that total? 35
36
Michael Buck: That total comes from the plats and I agree that … 37
38
Mark Micol: So how is this relevant, all these letters, correspondence. If what is on the ground today is 17 acres, 39
then are you arguing quality or quantity? 40
41
Michael Buck: I am arguing that the quality of the acreage provided doesn’t meet the quantity requirements so 42
their 17 acres according to plat what is called active recreation but if it called active recreation in the plat, it is not 43
active recreation according to ordinance. 44
45
Larry Wright: Can I ask our attorney, is this within our jurisdiction? 46
47
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David Rooks: There is an argument that none of this is in your jurisdiction that this is actually not subject to a 1
matter over which this board has jurisdiction. This is a subdivision issue, not a zoning issue. You have 2
jurisdiction over appeals from zoning decisions. This is an appeal of a subdivision decision. I can’t site the case 3
but I reasonably certain that you do not have jurisdiction over it if you chose to decide it on that basis. 4
5
Larry Wright: I am at a loss here. 6
7
David Rooks: You can inform the applicant whatever you think about the argument he is following and he can 8
make his decision how far he wants to go with that. He can make his own decision about whether he wants to 9
continue making the argument. 10
11
Jeff Schmitt: Before this board or withdraw it or go back to superior court or the planning board or someone else. 12
13
David Rooks: Yes. 14
15
Mark Micol: Basically, the SUP called for 7 acres, both the plaintiff and the county agree that there is more 16
acreage on the ground today that what the SUP approved so basically he is talking about quality. 17
18
David Rooks: You could ask the applicant to move on to his next point. 19
20
Larry Wright: Could you move on to your next point please. 21
22
Michael Buck: With regard to jurisdictional questions and you are going to make the decision you are going to 23
make, I understand that. I would like to point out two things; I am following the process prescribed to me by 24
Orange County. When I raised the concerns I raised beginning in 2007 and up to, including and following the 25
time of the filing of the appeal, I was in contact with Orange County officials. Orange County officials provided 26
me with the appeal process we are in now so that would be my first point that I am following a prescribed process 27
that the county gave to me. My second point is that the delays in this process, I would put almost entirely on the 28
part of the county. I have attempted multiple times in excess of 50 or 60 times over the intervening five and one 29
half years to move the process forward with letters, emails, phone calls, meetings and so forth with the county so 30
the extent that I am in the wrong venue, I would say that I have been directed to the wrong venue by the county. 31
Additionally, I would say with regard to the powers of this board, Section 2.3.2 say that this board can hear, 32
review and decide appeals from and review any order, requirement, decision or determination made by the 33
zoning officer on the performance of official duties. I will try to move this along in terms of the character of what 34
notes I am making here. Zoning officer memorandum from 2007 which I have entered into evidence and that was 35
Evidence 1-B. The claim is that “the SUP requires seven acres of active area”. Again, the definition becomes 36
key, active recreational area. I would like to read this one in detail and again let’s keep in mind the date on this. 37
This is a report made to the Board of Commissioners in October of 2007 so we are three, four, five months from 38
the submission of the Phase IV plat. “Staff determined that that the areas shown in Phase II plat were not 39
adequate to meet”, again this is not a letter, this is a report to the Board of Commissioners, “Staff determined that 40
the areas shown in Phase II plat were not adequate to meet the SUP’s seven acres of active requirement even 41
though the surveyor designated on the plat (skipping). Everyone understood that the topography limitations of 42
the clubhouse lot would require additional land to meet the entire seven acre SUP requirement. Then we get to 43
the digitized view which is Exhibit 8 and this digitized view as I showed with Exhibit 1A was provided to me by the 44
county on March 10, 2008 and the digitized view makes the claim that it is not really 7.06 acres on the Phase II 45
site but really 3.77 acres so to your question, I don’t dispute shows 7.06 acres but the county as of March 10, 46
2008 after the Phase IV plat had been submitted is saying that it is not 7.06 acres but really 3.77. I claim that 47
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3.77 is excessive as well but the point is that the county’s 7.06 acre claim ended here at the time of the appeal is 1
inconsistent with what they presented to the Board of Commissioners in 2007 and 2008. 2
3
Jeff Schmitt: How many acres are there? 4
5
Michael Buck: In red or the total? 6
7
Jeff Schmitt: Outlined in red. 8
9
Michael Buck: 3.77. Again, I understand the idea of a negotiation but let’s take a look at the change in County 10
recreational active recreational claims over the years. In 2006, we are at .4 acres of active recreation, in 2007, 11
we are at about 3.35 and that is from a document that is in evidence but I am not showing right now. Then it 12
goes to 3.77 acres in 2008 and I will actually point you to the zoning officer’s response to my appeal and this is 13
the current, Mr. Harvey’s response to my appeal dated September 4, 2013 in Attachment B, page 8 (unmarked). 14
He also cites the 3.77 acre claim. Then we jump to 7.06 acres so there is changing claim the county is making 15
over time when nothing changed on the land. Between 2006 and the building of this picnic area in early 2009 but 16
certainly after July 17, 2008, nothing changed and yet the interpretation of the acreage allowed did change. That 17
is key. I mentioned last time that if we were talking about a tenth of an acre, a quarter of an acre or even half an 18
acre, there probably would not be concern here but I contend there are orders of magnitude between … 19
20
Larry Wright: Where is this going? I don’t want to cut you short, I want you to make your point but I really want to 21
know where this is going. What is the end point here? 22
23
Michael Buck: I make a claim that the Phase IV acreage is inadequate to satisfy the special use permit. In order 24
to understand that claim, you have to know what was on the ground prior to Phase IV and so I am trying to paint 25
the picture what was on the ground, what the County understood to be on the ground, what the County was 26
willing to count as already built active recreation was a number that whatever was added in Phase IV did not 27
allow compliance with the special use permit so I can move on from here to further that claim but we are talking 28
about an inadequate active recreation claim according to the special use permit. 29
30
David Blankfard: Is there a definition in the 1986 building code that says what “active” is… I want to ask Mr. 31
Harvey first. 32
33
Michael Harvey: I am not sure I can legitimately answer because of where are in these proceedings. This is his 34
closing argument. I think if you want to ask a clarifying question, I will give you an appropriate answer. 35
36
David Rooks: I would allow the applicant to finish his presentation and then you can ask each of them follow up 37
questions if you wish. 38
39
Michael Buck: I will make an argument on evidence about that. I will move this along. We look at the plan-o-40
meter estimates last time. I don’t think there is any dispute that the clubhouse, pool, tennis court, basketball 41
court, subsequent built gazebo and the top lot all certainly eligible. There is question as to whether the parking 42
lot is countable and areas that are sloped and not otherwise suitable for recreation can be allowed. Again, we 43
are looking at broad numbers, the plan-o-meter numbers were introduced as estimates so it is a little over an 44
acre. If we look at what the planning director noted in his 2006 letter, he is saying it is really closer to a little over 45
half an acre, almost three quarters of an acre. I will note the question came up before as to what counts as active 46
recreation, is it the entire land up the curb and so forth. The planning director’s 2006 letter was doing an acreage 47
calculation on the individual pieces. Now I think that cuts the acreage a little too close, I don’t think you want to 48
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calculate it that way but that is what the planning director was doing in 2006. The point of all this is there is a 1
range of potential what is allowed active recreation. It could be as low as .7 acres or as high as one and one half 2
acres if certain remediation activities were to occur on the land as it exists today. The bottom line is that the 3
historical claims of either 3.77 acres which were the claims made at the time of the appeal and for or the current 4
claim was 7.06 acres, those are invalid and if those are invalid, what is the range of acreage that was properly 5
built at the time and I would say the subtotal ranges. The subtotal before Phase IV is somewhere between two 6
and three one half acres built so in order to Phase IV to properly meet the requirements of the special use permit, 7
they need to provide somewhere between 4.9 and 2.7 acres to get … 2.7 to 4.9 acres to get to the total seven. I 8
have already submitted the photographic evidence, you have seen it, and the photographic evidence shows 9
slopes, asphalt parking lots, gravel parking lots, sewer easement, metal storm drain, high tension lines, developer 10
construction debris, damage and/or incomplete landscaping, silk fencing, dirt paths, general unsuitability for 11
active recreation according to code. The one thing I would say in regard to the dates of the pictures is that the 12
pictures begin in 2007 to the extent that the situation was improving, the developers were delivering what they 13
needed to deliver, you would expect that 2007, 2008, 2009 up to the present day, at least some of these 14
situations would be ameliorated, you do not find that in the photographic evidence. You find that it wasn’t right in 15
2007 and 2008 and still not right today and again I did date stamp the photos so you can make your own 16
determination. I would like to briefly talk about the developer recreation area site plans. You have in evidence in 17
Attachment D and also Attachment K, the County has submitted the same documents twice, the developer’s 18
recreation area site plan. For Phase II, they submitted an existing conditions map, they submitted a site plan for 19
the active recreation space, they submitted a grading and drainage plan and the dates of those were 2002, 2003, 20
2003 and 2008. Newland, the developer for Phase IV submitted a plan to describe their picnic area 21
improvements in Phase II. What I want you to understand is the developers in pursuit of their claims of this is 22
active recreation, went through the process of creating these site plans, submitted them to the County, they are in 23
evidence for you, the same process occurred for the multi-family site. You have in evidence in Attachment D and 24
Attachment K a site plan, after the date of the appeal but dated April 24, 2008 and a planting plan. What 25
evidence do you have of a recreation plan, site plans related to active recreation or recreation of any kind, what 26
evidence do you have before you for a corresponding acreage claimed in Phase IV? You have none. There 27
were no conditions, existing conditions map submitted. There was no grading and drainage plan submitted. No 28
recreation site plan submitted. No landscaping plan submitted. I would argue with you that the failure of the 29
developers to provide and the failure of the County to demand active recreation site plans for Phase IV as were 30
demanded and provided for the previous phases evidences a lack of intent to “appropriate equip the land for 31
active recreation land and improve the land for active recreation use.” Failure to update the approved site plan 32
with modified recreation proposal is also a violation of the ordinance. More on that later. With regards to 33
developer’s site plans, I just want to point out to you that the as built drawings you have in your evidence in 34
Attachment, they are not precisely correct. The orientation of the basketball court is different and the location of 35
the top lot was shifted down the hill. I didn’t want you to be confused as you look at the Attachment D and 36
Attachment K site plans that they don’t quite match reality on the as built document. There was a question or 37
concern raised that I am not a certified engineer surveyor and therefor I am unable to speak to the sloping issues 38
on the Phase II parcel and it is true I am not a surveyor however like everyone in this room, I have completed the 39
eighth grade where we learned that slope is rise over run and I a submit to you that if you pull out your ruler and 40
you look at the contour line on the grading and drainage plan map that you will find that the areas that I claim are 41
excessively sloped are in fact sloping in excess of the allowed slope according to ordinance and the pictures I 42
provide show locations, on the back of the tennis court, the back of the basketball court and the upper portion of 43
the grassy areas. I would like to repeat what the current planning supervisor said “everyone understood the 44
topography limitations at the clubhouse lot would require additional land to meet the entire seven acres SUP 45
requirement” and that is a statement that was made in 2007. Now let’s look at what the actual ordinance 46
requirements are. I claim that you should be looking at the ordinance enacted in August of 1986 with regard to 47
what is applicable. The County has already spoken to this so I will try to be brief. Section IV-B-7-d-3 concerns 48
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site suitability requirements which say that land provided or dedicated for active recreational purposes, active 1
recreational purposes shall be of a character slope and location suitable for use as play areas, tennis courts, 2
multi-purpose courts, picnic areas, ball fields and other similar recreation uses. The type of recreation area shall 3
be located on land that is relatively flat, 07 and one half percent slope free of wetlands, free of flood plains, 4
easements for public utility, transmission lines and otherwise capable of accommodating active recreation uses. 5
One thing I would like to point out to you and this will persist on some of the further slides; active recreation has a 6
specific connotation. The County has tried to say that the walking paths can count as active recreation. That is 7
not the intent of ordinance and that is not what it says. Active recreation is intended for your sports type of 8
activities, tennis courts, play areas, multi-play areas, picnic areas and so forth. Passive recreation certainly, 9
walking, jogging, reading, similar quiet activities. The paths can certainly be construed as passive recreation, no 10
problem. There is an additional requirement in the same section of code regarding location. I will not read the 11
whole ordinance to you but it basically says that you need to properly locate your active recreation space. 12
Parking has been a question I want to make sure we are clear on. I did point out the significant area of the lot 13
which is encumbered by parking spaces and the 1986 code specifically excludes parking spaces from counting 14
as active recreation. It says, “In addition to land provided or dedicated for active recreation purposes, sufficient 15
area must be provided to make available parking lot spaces”. The parking lot spaces have to be in addition to 16
whatever is allocated for active recreation. The implications of all this are that it is clear that if you decide that the 17
1998 rezoning date is the relevant date and its ordinances in effect as of 1998, if you find that is the case, then 18
the 1986 site suitability ordinances I have sited and the other active recreation claims, those all are in effect and I 19
think it is very hard to argue that the active recreation has been met. If the August 1986 ordinance applies, some 20
quantity of the claimed active recreation must be deemed invalid. The plan-o-meter gives you some reasonable 21
estimates but you are free to make your own determinations there. Again, the County has offered no evidence to 22
dispute the land characteristics. Their only contention is none of this matter because the ordinance wasn’t in 23
effect. I think that is not true but so be it. I believe that the County incorrectly claims that the 1986 ordinance 24
does not apply. What if you agree with the County? Really it is the 1986 ordinance. It is before the site 25
suitability and other subdivision changes are in effect. What does that mean? I am going to walk you through Mr. 26
Harvey’s testimony where he describes what parts of the ordinance he is using to justify his claims. He points to 27
Section 6.12.2. What does 6.12.2 say? Here I am going to quote, regarding definitions and methods of 28
measurements relating to standard land use intensity ratios, “Subject to modifications made herein specifically or 29
in general where further detail is needed in connection with standards, definitions, or methods of measurements, 30
referral shall be made to appropriate sections of MPS or MAP.” Mr. Gledhill made a big point about the 31
importance of the word shall so there is no provision for the County not look at the definitions if there are any 32
questions about what does something mean if, in fact, those definitions are more fully explained in MPS or MAP. 33
What is MPS or MAP? Section 6.12.1 of the ordinance and this is the ordinance in 1986 at the time the County is 34
claiming this is what we must follow. MPS and MAP are document provided by the U.S. Department of Housing 35
and Urban Development and I am going to quote 6.12.1, “Accept as generally or specifically modified herein 36
minimum property standards and manual of acceptable practices in their current editions as published by the U.S. 37
Department of Housing and Urban Development together with related standards and explanatory material shall 38
be a supplementary guide on site and building planning and related definitions, measurements, ratio and 39
requirements”. I have submitted the minimum property standards and minimum acceptable use practices but I 40
am going to show you the key portions on the screen. Looking at the Manual of Acceptable Practices and this is 41
Attachment 1F for the record and it is on what they call in the document Section 3.14-1, “Active Recreation Area 42
(Title). Active recreation space design should include appropriate locations for sports such as baseball, football, 43
basketball, volley ball and tennis.” Looking at the minimum property standards, Attachment 1G, Section 3.14-2.1, 44
Recreation, “Adequate recreation space appropriately equipped shall be provided, consisting of open areas for 45
active recreation such as playgrounds or major sports” and goes on to talk about passive recreational 46
requirements as well. So that is what is in effect in 1986 to the extent there are any questions about what is 47
active recreation. The implications of this are that sites that are encumbered by the items I previously described, 48
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slopes, stumps, tension lines, etc. they are also excluded in the 1986 code. They are clearly excluded in the later 1
code but they are also excluded in the earlier code as well. I am trying to point out is the importance that the 2
Manual of Acceptable Practices and the minimum property standards, it is not just sufficient to give you land but 3
land that is appropriately equipped. You can’t just make a provision for space; you have to do something that 4
makes it viable for use an active recreational component. It must be appropriately equipment, “appropriately 5
equipped” and appropriately improved. I have already shown how the developer’s failure to provide recreation 6
site plans into evidence demonstrate that lack of intent to appropriately equip and appropriately improve and I 7
would further say that what exists on the ground today in 2013 furthers that case. That hasn’t been appropriately 8
equipped and improved. There was no intent in 2008 and hasn’t been completed in 2013. 9
10
Larry Wright: I think we have gone astray here. 11
12
David Rooks: That argument has nothing to do with Mr. Davis’ decision to approve the plat which is the only 13
thing that is before this board. I think if you would direct your arguments concisely and directly to that point, I 14
think you would find the board receptive. 15
16
Michael Buck: I disagree vehemently. The reason I disagree vehemently is because you can’t approve the 2008 17
plat and the acreage that it will supposedly provide without knowing how much acreage is already accounted for. 18
19
David Rooks: You have made that argument. 20
21
Larry Wright: You have made that argument. Can you go on? 22
23
Michael Buck: I will move on but I need to directly rebut something Mr. Harvey said regarding 6.12.2 so this goes 24
directly to his interpretation of his validity of the 2008 plat using the 1986 code. Mr. Harvey indicates that he 25
relies on Section 6.12 of ordinance for recreation area interpretation. Section 6.12 is specifically cited as support 26
for allowing parking within the recreation areas. I won’t reread what he said but he is saying parking is allowable 27
because the ordinance allows it. I would like to point out the section he is citing 6.12.2.6 with regard to open 28
space says that recreation space which is part of “total and livability open space is exterior area appropriately 29
approved for common recreation use”, recreation use part of total and livability open space. It is hard to see 30
there but what is the definition of livability space? Livability space is part of total open space appropriately 31
approved, etc. and shall not be used for vehicles except for incidental service, maintenance or emergency action, 32
none of which parking is. Here is a diagram that shows how it all works together but we are talking about 33
recreation space which is part of livability space as livability space precludes and prevents the use of vehicles for 34
parking so it must also be that recreation space cannot allow parking to encumber it as well. 35
36
Larry Wright: I would like to know what incidental service is. I would argue, not that I believe that that none of 37
those vehicles are permanently parked there. It is incidental, dropping somebody off there, swimming or 38
whatever. I mean, we are making a point here and I would like to … I am making an issue that I don’t know what 39
one of knows what incidental service is. 40
41
Mark Micol: He is referring to the MAP and MPS standards, was the developer compelled to abide by those 42
standards in 1986 or 1998? 43
44
David Rooks: Only if the ordinance required him to do so. 45
46
Mark Micol: We talked about the terms recommended versus shall and under 27 it says recommended a 47
minimum of seven acres so were they compelled to offer up any recreational acreage at all in 1986? 48
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1
David Rooks: You would have to ask Mr. Harvey that question. I don’t know the answer as to whether the 2
subdivision ordinance required mandatory open space. 3
4
Mark Micol: That is a key point because if they weren’t required to offer up any open space … 5
6
Larry Wright: Let’s let him make his point. 7
8
Mark Micol: All of his argument is irrelevant if it based on that. 9
10
Larry Wright: I understand what you are saying. 11
12
David Blankfard: I think the 1986 code says you have to have a certain percentage of recreation space. 13
14
Mark Micol: He argued the recommended versus shall and why would they put recommended seven acres if it is 15
a shall seven acres. 16
17
Michael Buck: To summarize on the inadequate active recreation acreage, what is in evidence before Phase IV 18
exists is less than what is required, the shortfall is not met by what is being put in Phase IV and allowing the plat 19
to proceed with such a shortfall is a defacto modification of the SUP. Before I get to the next section, I wanted to 20
get into a side bar with the question of negotiation. Negotiation is not a power granted to the planning 21
department, not in the code, it is not allowable to the zoning officer … 22
23
Larry Wright: How much longer of a presentation do you have? We need to get an idea, we have people waiting 24
here. Is this another hour or two? 25
26
Michael Buck: I hope that I have 20 to 30 minutes left. 27
28
Larry Wright: We have to adjudicate this. I have to confer with our attorney. 29
30
Conversation with Larry Wright and David Rooks. 31
32
Larry Wright: There is a lot of repetition here. 33
34
David Rooks: I think you need to ask him come directly, he has made two points and if he has any other points 35
that directly bear on the decision made by zoning officer, make those and then … 36
37
David Rooks: Mr. Buck, your points need to come directly. You have a very tired board on your hands; you do 38
yourself a disservice by talking longer than you should. You need to come directly to the point you need to make 39
about anything that was wrong with the decision by Mr. Davis when approved the plat, very specifically and 40
directly. Twenty or thirty minutes is probably not satisfactory to this board. 41
42
Michael Buck: I will do this as briefly as I can in terms of another major point. Invalid recreation segmentation so 43
I have talked about the inadequacy of the acreage provided. The argument here is that the acreage is 44
inappropriately divided and the point being that sum of the parts is less than the whole. If you have a provision 45
for five acres in a centrally located site but you have said to implement that as five different tracks of one acre 46
each around the neighborhood, that makes it less useful as active recreation space and if you go and look at the 47
minutes of the meetings that approved the special use permit, you will find the board looked at this issue and 48
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specifically made some determinations as to where the location of the active recreation should be, how much 1
should be there and the movement of portions of that acreage is in violation of the intent … 2
3
David Blankfard: Where is that in the special use permit? Is that in the commentary or the minute meetings? Is 4
it in the SUP? Specifically the five acres requirement? 5
6
Michael Buck: Attachment C, approved site plan, page 1. The site plan specifically says, recreation area 15 7
acres, five acres of recreation centrally located and I will not read through all the meeting minutes from the 8
November 25, 1985 meeting where the talked about what recreation should be provided by if you read through 9
the minutes of November 25, 1985, you will see that the applicant made certain proposals as to what was going 10
to be provided, where it would be provided and those requirements have not been met. The approval hearings 11
provide context for the importance of the central location of the active recreation and putting some of it to the 12
Phase IV area violates that intent and harmony with the approving board’s decision. In addition it violates the 13
intention of the original applicant who made multiple revisions to the site plan in order to address the concerns of 14
the board. The approving board was well aware of the Duke Power easement that runs through the property that 15
is not attempting to be used as the active recreation component. It is on the site plan. If you read through the 16
minutes, you will find they specifically rejected the “North end location” that is now being used for the active 17
recreation in Phase IV so in terms of the active recreation in terms of what was approved versus what was 18
delivered, the mandate was for a single primary parcel in the single family, multiple parcels have been provided. 19
The mandate was for a centralized large parcel undivided, instead, divided smaller parcels have been provided. 20
The board specifically rejected the use of the north end location instead we have gotten left over lots at the north 21
end and the development or the approving board specifically mandated on the site plan a five acre plot and that 22
has not been provided. Let me make that clear, five acre active recreation. That is in violation of the special use 23
permit and the intent of the approving board. If you find that the relevant date is after 1986, then there is a similar 24
claim that can be made through ordinance because the ordinance does have a unity provision. I won’t go 25
through that again because that is incumbent upon whether or not you choose to agree with the 1986 26
determination. Moving this active recreation to this central area to the more distant area creates a … there was a 27
reason the central area was chosen because it is accessible to everyone in the neighborhood, the multi-family as 28
well as all the single family. Moving it farther away is an imposition to those who are remotely located. 29
Pedestrian bridges, I maintain that the failure to provide the three pedestrian bridges substantially changes the 30
number of SUP required bridges, it substantially changes the pedestrian traffic pattern, it changes the condition 31
imposed during the SUP approval, it resulted in an unlawful defacto modification of the SUP and it violates the 32
internal relationships provision of 7.14 of the Planned Developments District Ordinance which was in effect in 33
1986 as well as subsequently so this argument is independent of what you are determination is on the relevant 34
date. Here is a picture of the creek, the bridge that has been provided, a picture of the foot path bridge that is 35
about six feet and the county is not claiming that is one of the bridges but there was a question last time as to the 36
fact that the corner here was showing, what is over Nancy Hill Creek and it clearly is not traversing the sides of 37
the creek so I am showing that for completeness. This is the only pedestrian foot bridge that has been built 38
understanding there is a claim the vehicle bridge, which I did not have a chance to get a picture of, also does 39
exist and does have a sidewalk. The special use permit says that you shall install bridges across the creek at 40
either end or midway in conjunction with the public walkways. Either is a curious word, I have provided you the 41
definition and the reason I provided you the definition because everyone thinks we know what either means but 42
then you realize that it can ambiguous meanings. The definition from the Oxford English Dictionary, the first 43
definition is “each of two, also both”. It does have an alternative definition, one or the other but its primary 44
definition according to the Oxford English Dictionary is each of two or both so if you reread that claim, install 45
bridges across the creek at both ends and midway that is how you get to the need for the missing bridges. I 46
realize there may be concern that well that is not frequently use of the word either. I encourage you to look at 47
your United States Constitution, Article 1, Article 5 and you will see that either is used in that exact same context. 48
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North Carolina General Statutes also has multiple uses… meaning both and the Orange County UDO also has 1
an example of either implying both. What was the original approving board’s intent with the wording? 2
Conveniently, the word either is used twice in that section. The first usage can literally signify as both when it 3
says along either side of Nancy Hill Creek designate 100 foot, so forth. Beyond reliance on the word’s primary 4
definition, it is logical to use the second usage also that the same meaning has the first. 5
6
Larry Wright: I think you have made your point here. 7
8
Michael Buck: The context of the word either has changed when you think about how the community has 9
changed. Originally, there was supposed to be a road at this corner, now that road, that Berryman Bridge has 10
shifted so the context of the work either shifts based upon whether you are using one end as your reference point 11
or whether you are centrally located. Can a motorize vehicle bridge be counted as a pedestrian bridge? I argue 12
that is an invalid interpretation because Condition 27 is entirely concerned with recreation as we have seen 13
before recreation space is part of livability space and it shall not be used for vehicles. I don’t think anyone can 14
claim that a group of cars crossing a bridge is an incidental use of the space. I maintain there is a consistent 15
understanding on the part of the original developer, the county prior to this appeal that there were requirements 16
for three walk bridges and I have submitted evidence to that effect. With regard to the inadequacy of the walkway 17
surrounding the bridge, I would point you to Section 7.14 Planned Development Housing District and the 18
provisions ways for pedestrian and cyclist. Walkways shall form a logical, safe and convenient system of 19
pedestrian access to all dwelling units and walkways shall be used by substantial numbers of children shall be so 20
located and safeguarded as to minimize contacts with normal automotive traffic. The revised document I have 21
provided which has sidewalks in conjunction with the walkways. I would encourage you to try to see if you can 22
move from one section of the development to another without substantial numbers of road crossing and if you 23
imagine you have a child you want to send from Phase I to send a friend in Phase IV or a Phase IV child you 24
want to send the recreation area, it is not possible to do that without multiple road crossings. 25
26
Larry Wright: Isn’t that a function of a cul-de-sac development? That is a common characteristic of cul-de-sac 27
development. 28
29
Michael Buck: Perhaps it is. 30
31
Larry Wright: When you move into a cul-de-sac development, isn’t something you expect? 32
33
Michael Buck: This is implemented as a planned development district and this is specifically an ordinance for 34
planned development. This is not another ordinance; it is a planned development ordinance. 35
36
Larry Wright: …or this planned development? Proceed, I am holding things up. I am reading through this and 37
see so much ambiguity even though; you are making your point. 38
39
Michael Buck: Condition 27 is optional. I think that is a novel argument certainly coming from the County’s chief 40
enforcement officer. I don’t find it credible; it is not consistent with general statutes or ordinance. It is an 41
argument being made for the option of the appeal and it is not reflected in historical record. If there is a question 42
of why the approving board put the condition there in the first place, if it is optional, why have it at all. It is counter 43
to the intent of the approving boards, it is counter to the intent of the original applicant and to interpret as to use 44
the recommendation word, it give the zoning officer excessive authority outside of what they are empowered to 45
have. I will briefly point out that North Carolina General Statutes as well as Orange County Ordinance has a 46
predisposition to enforce the higher standards. The planning director’s memo talks about requirements, 47
requirements, and requirements are repeatedly used in all the documentary evidence preceding this appeal. 48
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Your reliance on the word recommendation does not come up until 2012 and 2013 in discussions with regard to 1
the appeal. What was the applicant and approving board’s original intent? If you go back to the meeting minutes 2
to conclude the approving board’s interpretive that a condition is optional. The applicant came forward and said, 3
here is the project I want to build. I am proposing a swimming pool, two tennis courts, a recreational building to 4
serve the community. I have proposed these other items. The negotiations that would have taken place at that 5
time. There were some things the applicant got and some things the applicant didn’t get but what was put into 6
the special use permit, I don’t believe there was an applicant or a member of that board who intended that you 7
don’t really have to do these things, we are just putting it in there but if you don’t want to don’t worry about it. I 8
would point out that the site plan and the pictures represented in the site plan carry with them certain 9
requirements in addition to what is written in text. As an example, I would point you to Condition 27 which says 10
that fence shall be erected around the swimming pool but there is no requirement in text for a swimming pool, 11
why is there no requirement in text for a fence around a swimming pool that is not reference. It is because the 12
swimming pool is reflected on the picture. The picture and the words have to go together. You can’t build a 13
fence around a pool that doesn’t exist so you have to look at the picture as well. I would also point out that the 14
approving board and the Board of Commissioners were concerned about just this type of creative 15
reinterpretation. I am going to quote from the meeting minutes of January 6, 1986. Commissioner Marshall 16
expressed concerned about the specificity and conditions and understanding of all parties over time of the 17
conditions imposed. She further enquired about the process that would assure these objectives would be met. 18
She noted that there is not protection in the statement. I would argue that the County’s position is internally 19
inconsistent. The County wants you to say it is really just a recommendation but the county has also said that the 20
SUP is the sole standard. Everything you need to govern this development is in the SUP but it is a 21
recommendation but it can’t be both. It can’t be both because it leaves open the power to the planning 22
department legislatively policy making that is reserved to the board. You ask me to point to a single point to say 23
this plat is invalid. I don’t want you to find this plat is invalid. What I want is the recreation that we deserve as a 24
community to be provided. If I had wanted to quickly say here is a reason to invalidate the plat, I would have 25
pointed you to this. Condition 7 and I realize this is not in the grounds for appeal, as I said, my goal is not to find 26
the plat invalid, although it clearly is. My goal was to try to make sure we got the active recreation we require. 27
Condition 7 says Graham Drive and Hamilton Way shall have a 60 foot right of way with a 41 foot paved cross 28
section. There is Hamilton Way. As you know, the community was changed around. They moved road and did 29
different things. Now, they moved roads and did those things without following the proper procedures for dealing 30
with modifications and minor changes to the site plan. Nevertheless; if you look at what was previously known as 31
Hamilton Way, you will see that it does not have 60 foot right of way and a 41 foot paved cross section. Hamilton 32
Way is now known as West Hadley Avenue and the plat shows 50 foot right of way so you want a single reason 33
the plat is invalid, here it is but that was not my intent in doing this, my intent was to address the fact that we did 34
not get the active recreation we were promised in the SUP. We don’t have the pedestrian bridges we were 35
promised in the SUP. 36
37
David Blankfard: Where is the definition of active and passive? 38
39
Michael Harvey: Thank you for your understanding as to why I couldn’t answer. There is no distinguishing in the 40
PD standards for active/passive. It is broken out as part of the approval for this project. Active recreation as 41
defined in Condition 27 and all the uses that were recommended as satisfying active recreation component which 42
includes swimming pools, tennis courts, bicycle path, a grassy playing and the like. The ordinance doesn’t 43
provide that level of specificity with respect to planned development approvals. 44
45
Larry Wright: I have a question for Mr. Gledhill. We have heard from Mr. Buck about his arguments for using 46
1986 as a basis and then when the plat was submitted in the register of deeds that this is when it legally should 47
be, and he gave all this evidence. Could you respond to that? 48
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1
Geof Gledhill: The effective date and the rezoning and the recording of the plat are the key to Hillsborough water 2
supply being available. The county’s contention and it believes the evidence supports that is that the county at all 3
times, particularly with respect to the recreation requirements and recommendations took the position that the 4
1986 ordinance standards were the only ones that pertained and that everything else was recommendation were 5
therefore ongoing negotiations that took place to try to meet as many of those recommended recreation 6
standards, recommended recreation amenities as were possible. Does that answer your question? 7
8
Karen Barrows: To follow up on what Mr. Buck said, a lot of this is predicated on when the rezoning happened? 9
In 1998? 10
11
Geof Gledhill: That is correct, that is when this property was rezoned to PDH in March 31, 1998 but the permit 12
was approved in 1986 and by its terms the project shall be constructed in accordance with the site plan dated 13
October 1985 and revised January 2, 1986. I am quoting from the special use permit so essentially what the 14
special use permit does is relates back to the approval date in order to determine what the requirements are. 15
16
David Blankfard: Essentially it was grandfathered. 17
18
Mark Micol: You put a lot of emphasis on the shall versus recommended but in his testimony, he started his 19
closing arguments, he talked a lot about county officials had used requirement in their correspondence until the 20
year 2012 so why do you think that was? Why did the county use requirement when it says in the SUP 21
recommended? 22
23
Geof Gledhill: Why didn’t the developer say, wait a minute, you can’t require that because the special use permit 24
is only making recommendations. I think the answer to your question is that is the best way to get the best deal. 25
26
Mark Micol: On number 27 in the SUP it says the following recommendations apply but then it lists a minimum of 27
seven acres. You said in your testimony that the seven acres was part of a ratio that if the developers are 28
compelled based on the ordinance so why that would be listed under recommendation when that is part of the 29
ordinance. 30
31
Geof Gledhill: The site plan ratio they used is .52 open space recreation. It is not divided between active and 32
passive. The division between active and passive occurs only in the recommendations and I don’t think there is 33
any question there is more than 15 acres of recreation area in this project. It may not be the quality that Mr. Buck 34
would like or the community would like but nevertheless it is recreation. 35
36
Larry Wright: But he addressed slope and what is your counter to the slope. He doesn’t give grades but we 37
listened quite a bit on a poor quality of recreation space so what is your take on that. 38
39
Geof Gledhill: I have three grandchildren, six, four and two and you let them play tag on a hill, they will love it. 40
41
Larry Wright: They will play in a parking lot too. 42
43
Geof Gledhill: They will and furthermore, this polygon Mr. Buck has used because he has been provided by the 44
county planning staff ignores some of the significant portion of this recreation area that shows in the central of 45
this project. 46
47
Larry Wright: And that is along the creek? 48
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1
Geof Gledhill: Not along the creek. It is to the south of the creek. It is part of the active recreation parcel. It may 2
be in trees, let’s play tag again, let’s do swimming, let’s do basketball, let’s do tennis, let’s play tag in the trees. 3
That is active recreation. 4
5
Larry Wright: Is that in a flood plain? 6
7
Geof Gledhill: I am looking at a small portion is in the 100 year flood boundary but most of it is outside of even 8
that boundary so it is a question of quality versus quantity and our argument is that quality was not in this special 9
use permit. The regulations in effect at the time it was approved are recommendations. 10
11
Larry Wright: You heard his comments on the parking lot and whether that was considered part of the recreation 12
area or not and could you go over those calculations again. 13
14
Geof Gledhill: I think the parking area is in the active recreation part of this project are within the polygon that 15
makes … 16
17
Larry Wright: And why is that? 18
19
Geof Gledhill: Because its, the point made by another members of the board, you have people coming in and 20
out, it is not a permanent occurrence of parking for any particular vehicle. It is intermittent use and I can 21
understand the other way, I am just making the argument that the entire gross, the entire gross land area 22
qualifies. The ratio is calculated by multiplying the required ratio times the gross land area. 23
24
Jeff Schmitt: Mr. Buck makes the point that Mr. Harvey relied on three separate sections in the code, one of 25
which relates to the parking and I think the comment was made something to the degree about incidental use, 26
how is that referred to … we don’t provide 20 parking spaces for incidental use, do we? 27
28
Geof Gledhill: I am reading from Condition 27; provide 10 parking spaces to serve the above activities within the 29
15 acre recreation area. 30
31
David Blankfard: When was this plat modified to its current condition? Did that void the special use? How does 32
that process work? 33
34
Geof Gledhill: I don’t think I understand the question. 35
36
David Blankfard: What was the issue with the SUP dated 1986, October and it is different … How does that 37
relate back to the SUP? 38
39
Geof Gledhill: The final plats that were recorded fleshed out the site plan that was part of the special use permit. 40
Changes that were made in the minds of the planning staff, changes that were made from the site plan look to the 41
final recorded plat look were minor changes that did not require a modification of the special use permit. 42
43
Larry Wright: Minor as defined by the ordinance? 44
45
David Blankfard: Which ordinance? 46
47
Geof Gledhill: I would argue that it is the 1986, the ordinance in effect when the special use permit was adopted. 48
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1
Jeff Schmitt: Roads and everything are different. In the 1998 resubmission, they changed the roads, names, etc. 2
3
Mark Micol: How much was done by the developer and how much by DOT and I know he mentioned the 60 foot 4
easement, I know that changed from 50 to 60 sometime in the 80s. That wasn’t done by the developer but by the 5
DOT standard. Is there a difference between the developers changing the plat versus the ordinance or DOT 6
change? 7
8
Geof Gledhill: I don’t know. The answer could be all of what you just said. DOT could have said, well this site 9
plan looks great but these road angles don’t meet … 10
11
Larry Wright: The cul-de-sac itself has to meet fire code. 12
13
Geof Gledhill: There are other laws that may have impacted the way the final plats were recorded… were 14
developed. The answer is I don’t know the answer to why in every case but it could be all those things. 15
16
Jeff Schmitt: How does the county respond to the federal requirements which were enumerated by Mr. Buck in 17
relation to what the county approved? Are they saying it is consistent with the federal standards? 18
19
Geof Gledhill: What I heard were not hard requirements for recreational purposes. What I heard was the same 20
thing that went on in this development. 21
22
David Blankfard: I would say that the definition of active recreation is in the SUP and that takes precedence over 23
further standards down the line. 24
25
Geof Gledhill: Especially when those standards are not ... I may have heard different than you did but they 26
sounded very subjective to me. They are polar star if you will not something that can be reduced to 27
requirements. 28
29
Larry Wright: What standards are we addressing now? 30
31
Geof Gledhill: HUD standards. 32
33
Jeff Schmitt: Mr. Chairman, what is the process here. After we finish answering questions, are you going to 34
close the public hearing and then we are going to deliberate? 35
36
Larry Wright: I am going to afford you ample opportunity to ask questions you have so once we go into closed 37
session, then everything will be addressed you feel you need to do. Then Mr. Rooks has some guidance for us 38
and then I would like to make a five minute break and then we will come back and start the closed session. 39
40
Jeff Schmitt: Do we have jurisdiction? 41
42
David Rooks: That is an interesting question. There is a very good argument that you do not. I think in fairness 43
to Mr. Buck who has put an awful lot of work into this that maybe what you should do is not pull a technicality and 44
go ahead and decide it on the merits. 45
46
Geof Gledhill: I would argue you could do both. 47
48
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David Rooks: You could do both if you want to. The jurisdictional question is whether you may sit in hearing on 1
appeal a subdivision question. The enabling legislation deals directly with the development ordinance and 2
speaks directly to your authority to hear appeals arising under that ordinance, the zoning ordinance, not the 3
subdivision ordinance. 4
5
Larry Wright: Can we not say that understanding that this may not be within our jurisdiction, we will proceed to … 6
7
David Rooks: You can choose to do whatever you choose to do. 8
9
Geof Gledhill: An alternative is, it isn’t within our jurisdiction but if it were, this is what we would do. 10
11
Larry Wright: Any other questions. What should we do in respect to the scheduling? We have had people who 12
have been very patient that are waiting to hear their cases. It is now 9:30 a.m. 13
14
Geof Gledhill: I would request that you close the public hearing. 15
16
David Rooks: And I would suggest that you close the public hearing. It is now time to do that. 17
18
MOTION made by Karen Barrows to close the open session of this meeting. Seconded by Mark Micol. 19
VOTE: Unanimous 20
21
Larry Wright: We have talked about this informally with the board and what we will do is… we have had people 22
patiently wait here… we will recess the closed session and proceed with the 7:30 p.m. agenda. 23
24
Larry Wright: I am going to dispense with the public charge and we are looking at Agenda item A-4-13 Class B 25
Special Use Permit for the riding stables. 26
27
Larry Wright: Do we adjourn the second part of the meeting. 28
29
David Rooks: My understanding is that this has been one meeting of the board and you have recessed that 30
particular agenda item without any particular process. 31
32
33
AGENDA ITEM 6: A-4-13 – Class B Special Use Permit – Riding Stables 34
35
Michael Harvey presented the case. 36
In accordance with Section(s) 2.7 Special Uses, 5.2.2 Table of Permitted Uses, 5.3.2 Application of Use 37
Standards – Special Uses, and 5.6.6 Standards for Riding Stables of the UDO the North Carolina Therapeutic 38
Riding Center (NCTRC) has submitted a Class B Special Use Permit application seeking a permit to operate a 39
therapeutic riding center on a 28 acre parcel of property at 4705 Nicks Road further identified utilizing Orange 40
County Parcel Identification Number (PIN) 9822-81-4391. 41
The property in question is zoned Agricultural Residential (AR) and Cane Creek Protected Watershed Protection 42
Overlay District. The proposed use is permitted on the property subject to the issuance of a Class B Special Use 43
Permit. The property was a farm operation with existing stables and horse rinks. 44
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NCTRC is looking to assume ownership of the property and utilize the existing infrastructure to operate a 1
therapeutic riding facility designed to offer riding and animal care opportunities as part of a therapy program for 2
children and adults with physical, emotional, mental, and social disabilities. 3
None of the clients will stay on the property overnight but accommodation for staff, who will care for the animals, 4
will be available. Access to the site will be through an existing driveway off of Nicks Road. 5
6
The following individuals were sworn in by Debra Graham, Board Secretary: 7
Robin Barefoot 8
Jay Zaragoza 9
Lara Katz 10
11
Jeff Schmitt: Is there anybody here in opposition to this? 12
13
Michael Harvey: No. There have been no comments indicating opposition to this particular case. First, you have 14
my abstract, relevant information concerning development of this property, you have a property map and 15
Attachment 1, you have the Application package in Attachment 2, you have staff comments from various county 16
agencies that have reviewed this request in Attachment 3, Notification and certification materials in Attachment 4 17
and of course, last you have our special use permit findings of fact in Attachment 5. I move that this abstract and 18
all the attachments be entered into the record. 19
20
MOTION made by Jeff Schmitt to accept abstract and attachments be entered into the record. Seconded by 21
David Blankfard. 22
VOTE: Unanimous 23
24
Michael Harvey: Mr. Chairman, the applicant is represented here this evening by Ms. Kim Steffan, a local 25
attorney. I am going to summarize this and allow her to make any presentation she wishes and review the 26
findings of fact contained in Attachment 5. (Reviewed Abstract). 27
28
Larry Wright: On page 93, Attachment 5, this is the second item, specific regulations governing the development 29
of a telecommunication tower, could you explain that please. 30
31
Michael Harvey: Yes. It is a typo. You are looking at a riding stable. 32
33
Larry Wright: Just substitute a riding stable for a telecommunication tower. I will fix that at the appropriate time. 34
35
Kim Steffan: Hopefully we are presenting something tonight that is something pleasant, easy and short. I have 36
brought two people from the North Carolina Therapeutic Riding Center. I will introduce them to you and make 37
them available to you. Lara Katz has been with NCTRC for 21 years, she is the board co-chair and behind me is 38
Robin Barefoot who is a volunteer and past board member and she helps them with legal and policy issues. If 39
you have any questions, we would be happy to answer those. 40
41
Karen Barrows: I am not sure if it is a question to you or Michael. I notice there is a septic tank that didn’t have a 42
permit; there is a well that is too close… Have they been stamped and in use? 43
44
Kim Steffan: The remedies to that are in the works and that is in coordination with the Orange County Health 45
Department and the parties are working together on solutions to that. My clients began leasing the property in 46
2009 for the therapeutic riding center and the improvement we are speaking of are improvements that were made 47
by the property owner, not my clients because my clients are tenants there now and wish to purchase the 48
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property. The property owners had made those improvements at an earlier time prior to my clients taking over 1
the property under lease arrangements so it didn’t happen on my client’s watch but we will be happy to, as part of 2
getting the special use permit and purchase the property, happy to get those remedied within all departments 3
involvement. 4
5
Michael Harvey: In Attachment 3, we have several letters and detailed correspondence from Orange County 6
Environmental Health establishing the process and procedures they would have to go through in order to address 7
these problems. Health department is no issue with the permit being issued as long as the applicant makes good 8
on their continued work to address the concerns you have articulated. In fact one of the conditions we are 9
recommending is that has to be done within a specific period of time as part of this approval. 10
11
Larry Wright: Is there anybody to testify for the riding stable? 12
13
Robin Barefoot: I have no testimony to offer unless I can answer a question. Kim introduced me and Lara Katz, 14
we are long time volunteers, current board member, former board member. 15
16
Larry Wright: Jay Zaragoza. 17
18
Jay Zaragoza: 1870 Home Road, Hillsborough, N.C. I am a resident of Orange County for about 30 years or 19
more. I would like to use this as an aid. I own 185 acres including along this property line. I think their operation 20
which I have observed for the last several months is an excellent operation and they have never caused any 21
noise or any reason for complaint and I highly recommend the approval of the application. The Cases’ (the 22
current owner of the Nicks Road property) will continue (to live) on a 20 acre parcel if they don’t have access they 23
will be land-locking themselves if they don’t obtain some type of an access easement. 24
25
Michael Harvey: Mr. Zaragoza brought this to my attention and a week ago, we brought it to the attention of Ms. 26
Steffan. The applicant is willing to grant some form of easement so I will be recommending an additional 27
condition of the granting of this SUP if this board chooses that an appropriate easement location shall be 28
referenced on the site plan and Mr. Zaragoza and I have been neighbors and friends longer than we want to think 29
about going back to my freshman year of high school. 30
31
Mark Micol: Is he the largest property owner? 32
33
Jay Zaragoza: I probably am the largest property owner. There is a 10 acre tract here owned by a bank due to a 34
foreclosure and the property next to it is being sold. 35
36
Michael Harvey: Reviewed staff’s recommendations. 37
38
Michael Harvey: We have recommended approval subject to these nine conditions with the addition of Condition 39
10 indicating that an easement shall be provided allowing access to the Cases’ for their adjacent property. 40
41
MOTION made by David Blankfard to close the public hearing and go into closed session. Seconded by Jeff 42
Schmitt. 43
VOTE: Unanimous 44
45
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 45 of 123
1
FINDINGS OF THE ORANGE COUNTY BOARD OF ADJUSTMENT 2
PERTAINING TO A REQUEST SUBMITTED BY 3
NORTH CAROLINA THERAPEUTIC RIDING CENTER INC. (NCTRC) 4
PROPOSING DEVELOPMENT OF A RIDING STABLE AT 5
4705 NICKS ROAD (PIN 9822-81-4391) 6
7
As required under Section 5.2 Table of Permitted Uses of the Orange County Unified 8
Development Ordinance (UDO), a Class B Special Use Permit is required for the 9
development/operation of a commercial riding stable, in accordance with the provisions of 10
Section 2.7 of the UDO. Such permits shall comply with general and specific standards as set 11
forth in Section(s) 5.3.2 and 5.6.6 of the UDO. 12
13
Section 5.3.2 (A) (2) of the UDO requires written findings certifying compliance with the 14
following: 15
16
(1) The use will maintain or promote the public health, safety and general welfare, if 17
located where proposed and developed and operated according to the plan as 18
submitted; 19
20
(2) The use will maintain or enhance the value of contiguous property (unless the use is a 21
public necessity, in which case the use need not maintain or enhance the value of 22
contiguous property); and 23
24
(3) The location and character of the use, if developed according to the plan submitted, 25
will be in harmony with the area in which it is to be located and the use is in 26
compliance with the plan for the physical development of the County as embodied in 27
these regulations or in the Comprehensive Plan, or portion thereof, adopted by the 28
Board of County Commissioners; 29
30
In addition, the Board shall make findings certifying that the application is complaint with the 31
following specific standards: 32
33
(1) Specific standards for the submission of Special Use Permit applications as outlined 34
within Section(s) 2.2 and 2.7 of the UDO, 35
(2) Specific regulations governing the development of a riding stable as set forth in 36
Section 5.6.6 of the UDO, 37
(3) Section 5.3.2 (B) relating to the method and adequacy of the provision of: 38
a. Sewage disposal facilities, 39
b. The adequacy of police, fire, and rescue squad protection, and 40
c. The adequacy of vehicular access to the site and traffic conditions around the site 41
(4) The general findings outlined within Section 5.3.2 (A) (2). 42
43
Listed below are the findings of the Orange Planning staff regarding the application in question. The 44
findings have been presented by Article and requirement to assist the Board of Adjustment in its 45
deliberations. 46 47
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 46 of 123
1
2
SECTION 2.2 AND 2.7.3 CLASS B SPECIAL USE PERMIT APPLICATION COMPONENTS ("Yes" 3
indicates compliance; "No" indicates non-compliance) 4
5
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 2.2
The application for a
Class B Special Use
Permit shall be on forms
provided by the Planning
Department.
X_ Yes ____No Attachment 2 of the
abstract package
contains a completed
Orange County Class B
Special Use Permit
application for the
project.
_x_Yes ____No
2.2.4 (D)
Applications must be
accompanied by the fee
amount that has been
established by Board of
County Commissioners.
Application fees are
nonrefundable.
X_ Yes ____No
Staff will stipulate the
applicant submitted the
required application fee
for the permit application.
_x_Yes ____No
2.7.3 (B) (1)
A full and accurate
description of the
proposed use, including
its location, appearance,
and operational
characteristics.
X_ Yes ____No Attachment 2 of the
abstract package
contains a completed
project narrative
describing the proposed
use and operational
characteristics of the
riding stable.
_x_Yes ____No
2.7.3 (B) (2)
The names and
addresses of the
owners of the property
X_ Yes ____No Attachment 2 of the
abstract package
contains information
concerning the names
and addresses of the
owner of the property
where the riding stable is
to be located.
_x_Yes ____No
6
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 47 of 123
SECTION 2.2 AND 2.7.3 CONTINUED ("Yes" indicates compliance; "No" indicates 1
non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
2.7.3 (B) (3)
Relevant information
needed to show
compliance with the
general and specific
standards governing the
Special Use
X_ Yes ____No Attachment 2 of the
abstract package
contains various
documents, including a
site plan, containing the
necessary information
establishing compliance
with the provisions of the
Ordinance.
_x_Yes ____No
2.7.3 (B) (4)
Ten (10) copies of the site
plan prepared by a
registered N.C. land
surveyor, architect, or
engineer.
X_ Yes ____No Attachment 2 of the
abstract package
contains the required site
plan completed by Alois
Callemyn, a local land
surveyor.
_x_Yes ____No
2.7.3 (B) (5)
If the application involves
a Preliminary Subdivision
Plat, 26 copies of the Plat
prepared in accordance
with Section 7.14 shall be
provided.
_X_ Not Applicable The project does not
involve or propose a
subdivision. As a result
no preliminary plat is
required.
_x__ Not Applicable
2.7.3 (B) (6)
A list of all parcels located
within 500 feet of the
subject parcel and the
name and address of
each property owner, as
currently listed in the
Orange County tax
records.
X_ Yes ____No Attachments 2 and 4 of
the abstract package
contains a complete list
of property owners as
maintained by Orange
County Land Records.
_x_Yes ____No
2.7.3 (B) (7)
Elevations of all structures
proposed to be used in
the development.
X_ Yes ____No Attachment 2 of the
abstract package
contains the required
elevations, specifically
photos of the existing
structures
_x_Yes ____No
3
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SECTION 2.2 AND 2.7.3 CONTINUED ("Yes" indicates compliance; "No" indicates 1
non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
2.7.3 (B) (8)
Ten (10) copies of an
Environmental
Assessment or
Environmental Impact
Statement as required by
Section 6.16 of the UDO
_X__ Not Applicable
Per Section 6.16.3
Environmental
Assessment of the UDO
the project will not
involve the grading of
more than 40,000 sq. ft.
of property (exclusive of
roads), involve more
than 10,000 gallons per
day of water usage.
_x__ Not Applicable
2.7.3 (B) (9)
Method of disposal of
trees, limbs, stumps and
construction debris
associated with the
permitted activity, which
shall be by some method
other than open burning.
X_ Yes ____No Attachment 2 of the
abstract, as well as the
submitted site plan,
contains sufficient detail
denoting construction or
land clearing debris
generated on-site will be
disposed of in
accordance with the
County’s Solid Waste
Management Ordinance.
_x_Yes ____No
2.7.3 (B) (10)
Statement from the
applicant indicating the
anticipated development
schedule for the build-out
of the project.
X_ Yes ____No Attachment 2 of the
abstract package
contains the required
information.
_x_Yes ____No
2.7.3 (B) (11)
Statement from the
applicant in justification of
any request for vesting for
a period of more than two
years (five years
maximum)
X Not Applicable The applicant is not
requesting vesting of the
project.
_x_ Not Applicable
3 4
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OC Board of Adjustment – 11/11/2013 Page 49 of 123
SECTION 2.7.5 CLASS A SPECIAL NOTIFICATION REQUIREMENTS ("Yes" indicates 1
compliance; "No" indicates non-compliance) 2
3
Ordinance Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 2.7.5 (a)
The Planning Director shall
give public notice of the
date, time and place of the
public hearing
_X Yes
____No
Attachment 4 of the
abstract package as
produced by staff provides
the necessary detail
outlining compliance with
this requirement.
_x_Yes ____No
2.7.5 (b)
Such notice shall be
published in a newspaper of
general circulation in
Orange County once a
week for two successive
weeks, with the first notice
to be published not less
than ten days not more than
we days prior to the date of
the hearing.
_X Yes
____No
The legal ad for the
November 11, 2013 BOA
public hearing was
published in the News of
Orange and the Herald
consistent with the
requirements of the UDO.
_x_Yes ____No
2.7.5 (c)
The Planning Director shall
post on the affected
property a notice of the
public hearing at least ten
days prior to the date of said
hearing.
_X Yes
____No
Attachment 4 of the
abstract package as
produced by staff provides
the necessary detail
outlining compliance with
this requirement.
_x_Yes ____No
2.7.5 (d)
Written notice shall be sent
by certified mail to all
adjacent property owners
not less than 15 days before
the hearing date. Adjacent
property owners are those
whose property lies within
five hundred feet of the
affected property and whose
manes and addresses are
currently listed in the
Orange County tax records.
_X Yes
____No
Attachment 4 of the
abstract package as
produced by staff provides
the necessary detail
outlining compliance with
this requirement.
_x_Yes ____No
4
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 50 of 123
SECTION 5.6.6 – STANDARDS FOR RIDING STABLES 1
("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.6.6 Riding Stables
(A) (1) In addition to
the information
required by
Section 2.7 the
following
information shall
be supplied as part
of the application
for approval of this
use
(a) Plans for all barns,
boarding facilities,
exercise yards,
riding arenas, and
related
improvements,
including signage.
_X Yes
____No
The submitted site plan
provides required detail.
Also the application in
Attachment 2 contains
pictures of the structures
and the operation in
general.
_x_Yes ____No
(b) Site plan showing
the improvements
listed in a) above,
other structures on
the same lot, and
structures on
adjacent property.
_X Yes
____No
The submitted site plan
provides required detail.
_x_Yes ____No
(2) Standards of
Evaluation
(a) The site is of
adequate size to
protect adjacent
properties from
adverse effects of
the riding stable
_X Yes
____No
Staff has determined the
site is of adequate size to
protect adjacent
properties from any
adverse effects
_x_Yes ____No
3
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 51 of 123
1
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
(b) No part of any
building, structure,
exercise yard, or riding
arena, in which animals
are housed or exercised
shall be closer than 150
feet from a property line,
except property occupied
by the owner/operator of
the facility. These
minimum distances shall
not apply if all portions of
the facility, in which
animals are housed, are
wholly enclosed within a
building.
_X Yes
____No
The submitted site plan
provides required detail.
_x_Yes ____No
(c) The site plan shows
parking, access areas and
screening devices for
buildings, riding arenas,
and boarding facilities.
_X Yes
____No
The submitted site plan
provides required detail.
Also the application in
Attachment 2 contains
pictures of the structures
and the operation in
general.
_x_Yes ____No
(d) A sign clearly visible
from the ground shall be
posted at the main
entrance to the facility and
shall contain the names,
addresses, and telephone
numbers where persons
responsible for the facility
may be contacted at any
hour of the day or night.
The sign shall comply with
dimensional requirements
as set forth within this
Ordinance.
_X Yes
____No
The submitted site plan
provides required detail.
The sign already exists
and has been approved
by staff.
_x_Yes ____No
2
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 52 of 123
SECTION 5.3.2 (B) – SPECIFIC STANDARDS – SPECIAL USE PERMITS ("Yes" indicates 1
compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (B) (1)
Method and adequacy of
provision for sewage
disposal facilities, solid
waste and water service.
X_ Yes ____No Attachment 3 of the
staff prepared abstract
contains
memorandum/emails
from Orange County
Environmental Health
outlining the various
septic issues for the
project.
A condition of approval is
that the applicant
addresses all of these
concerns within the next
24 months.
There is also an e-mail
from Jeff Scouten,
Orange County Solid
Waste, indicating his
approval of the project.
_x_Yes ____No
Section 5.3.2 (B) (2)
Method and adequacy of
police, fire and rescue
squad protection.
X_ Yes ____No Fire protection will be
provided by the orange
Grove Volunteer Fire
Department, rescue
service by the Orange
County Emergency
Management, and police
protection by the Orange
County Sheriff’s
Department.
Attachment 3 of the
abstract package
contains an e-mail from
Jason Shepard of
Orange County
Emergency Management
concerning approval of
the project.
Orange County Sheriff’s
office has also indicated
they can support the
project.
_x_Yes ____No
3
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 53 of 123
SECTION 5.3.2 (B) CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 1
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (B) (3)
Method and adequacy of
vehicle access to the site
and traffic conditions
around the site.
_X Yes ___No The submitted site plan
shows the required
access points.
The property already has
a valid NC DOT driveway
permit.
_x_Yes ____No
2
3
4
MOTION made by David Blankfard to agree with staff’s findings for pages 94 through 101. Seconded by Jeff 5
Schmitt. 6
VOTE: Unanimous 7
8
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 54 of 123
SECTION 5.3.2 (A) Special Uses – General Standards ("Yes" indicates compliance; "No" 1
indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
In accordance with Section
5.3.2 (A) (2), the Board of
Adjustment shall also
consider the following
general conditions before
the application for a
Special Use can be
approved:
NOTE: Planning
Staff does not
provide a
recommendation
on these items as
the Board is
expected to act
based on the sworn
testimony provided
at the hearing.
Section 5.3.2 (A) (2) (a)
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.
X Will _Will Not Staff will remind the Board
there is the following
information available, as
submitted by the applicant,
related to addressing this
requirement:
• The application
package and project
narrative contained
within Attachment 2 of
the abstract.
• Attachment 2 of the
abstract contains an
impact analysis,
completed by Scott
Dorset, indicating the
project will not impact
the value of adjacent
property.
• The submitted site plan
denoting the projects
compliance with the
UDO.
• Attachment 3 of the
abstract contains
approvals from County
EMS and Sheriff’s
office.
X Will _Will Not
3
MOTION made by Mark Micol to find in favor of Section 5.3.2(A)(2)(A) that the use will maintain and promote the 4
public health, safety and general welfare as the NCTRC provides therapeutic services to children and adults from 5
the community who have physical, emotional, mental and social disabilities. Seconded by David Blankfard. 6
VOTE: Unanimous 7 8
9
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 55 of 123
SECTION 5.3.2 (A) Special Uses – General Standards ("Yes" indicates compliance; "No" 1
indicates non-compliance) 2 3
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (A) (2) (b)
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).
x Will _Will Not Staff will remind the Board
there is the following
information available, as
submitted by the
applicant, related to
addressing this
requirement:
• The application
package and project
narrative contained
within Attachment 2
of the abstract.
• Attachment 2 of the
abstract contains an
impact analysis,
completed by Scott
Dorset, indicating the
project will not impact
the value of adjacent
property.
x Will _Will Not
4
5
6
MOTION made by Jeff Schmitt to find in favor of Section 5.3.2(A)(2)(b) that the use of the property will continue to 7
provide for increased or enhanced from contagious as so indicated by information submitted by Scott Dorsett, a 8
realtor and appraiser doing business in Orange and Alamance County for several years. Seconded by David 9
Blankfard. 10
VOTE: Unanimous 11 12
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 56 of 123
1
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (A) (2) (c)
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.
x Is __ Is Not Staff will remind the Board
there is the following
information available, as
submitted by the
applicant, related to
addressing this
requirement:
• The application
package and project
narrative contained
within Attachment 2
of the abstract.
• Attachment 2 of the
abstract contains an
impact analysis,
completed by Scott
Dorset, indicating the
project will not impact
the value of adjacent
property.
• The submitted site
plan denoting the
projects compliance
with the UDO.
x Is __ Is Not
2
3
4
MOTION made by Karen Barrows to find in favor of Section 5.3.2(A)(2)(c) that the use will maintain the character 5
of the use and will be in harmony with the area. Seconded by Jeff Schmitt. 6
VOTE: Unanimous 7 8
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 57 of 123
1
1. The granting of the Special Use Permit shall not prohibit or in any way prevent the property 2
from being utilized to support farming operations/activities. The permit, and conditions herein, 3
shall only impact the operational characteristics of the riding stable. 4
2. No activity shall be allowed within the identified conservation easement currently in place on 5
the western boundary of the project as detailed within Deed Book 1376 Page 236, and as 6
shown on a plat recorded within Plat Book 84 Page 194, of the Orange County Registrar of 7
Deeds. 8
3. Those paddocks and fenced in pasture areas not meeting the 150 foot setback required to 9
allow for the operation of a riding stable shall not be used as part of the overall therapeutic 10
riding operation. This does not, however, prohibit horses from using these areas to feed or 11
roam freely. 12
4. The applicant shall address all outstanding issues associated with obtaining required 13
Environmental Health permits to allow for the continued operation of the facility within 24 14
months from the date of permit approval. 15
5. All existing vegetation along the perimeter of the property shall be preserved it its natural 16
state. 17
6. No client shall be allowed to remain on the property after hours. 18
7. Existing residential structure(s) can be utilized by the applicant for office and living space to 19
ensure the perpetual maintenance of the facility and care of the animals housed on the 20
property. 21
8. The Special Use Permit will automatically expire within 12 months from the date of approval if 22
the use has not commenced or construction has not commenced or proceeded unless a 23
timely application for extension of this time limit is approved by the Board of Adjustment. 24
9. If any condition of this Special Use Permit shall be held invalid or void, then this Special Use 25
Permit shall be void in its entirety and of no effect. 26
27
MOTION to approve the Class B Special Use Permit made by Jeff Schmitt with the recommendations provided by 28
staff items 1 – 9 and item 10 be approved and be an inclusion of this special use permit. Seconded by David 29
Blankfard. 30
VOTE: Unanimous 31 32
RECOMMENDATION:
Staff has not received any information that would establish grounds for making a negative finding on the general
standards as detailed above. These standards include maintaining or promoting the public health, safety, and
general welfare, maintaining or enhancing the value of contiguous property, the use being in harmony with the
area in which it is to be located, and the use being in compliance with the general plan for the physical
development of the County.
Staff has reviewed the application, the site plan, and all supporting documentation and has found that the
applicant complies with the specific standards and required regulations as outlined within the UDO
Provided the Board of Adjustment finds in the af firmative on the specific and general standards, the Board could
make a positive finding on this application. In the event that the Board makes a recommendation to issue the
permit, staff recommends the attachment of the following conditions:
Approved 4/22/2014
OC Board of Adjustment – 11/11/2013 Page 58 of 123
AGENDA ITEM 7: A-5-13 – Class B Special Use Permit – Telecommunication Facility 1
In accordance with Section(s) 2.7 Special Uses, 5.2.2 Table of Permitted Uses, 5.3.2 Application of Use 2
Standards – Special Uses, and 5.10 Standards for Telecommunication Facilities of the UDO American Tower and 3
AT and T Mobility have submitted a Class B Special Use Permit application seeking a permit to erect a 199 foot 4
telecommunication tower on a 34 acre parcel of property at off of Saddle Club Road further identified utilizing 5
Orange County Parcel Identification Number (PIN) 9826-76-9834, which is owned by Murray Lynch. 6
The property in question is zoned Agricultural Residential (AR) and Back Creek Protected Watershed Protection 7
Overlay District. The proposed use is permitted on the property subject to the issuance of a Class B Special Use 8
Permit. The property is currently utilized as a farm. 9
As detailed within the application, the applicant wishes to erect a telecommunication tower within a 100 foot by 10
100 foot leased area on the aforementioned parcel. There will be an equipment cabinet at the base of the tower 11
to house equipment for the various communication providers utilizing the tower within a 60 foot by 60 foot fenced 12
compound. 13
Access to the proposed facility shall be through an easement running through property, also owned by Murray 14
Lynch, with direct frontage along Saddle Club Road. This property is further identified utilizing Orange County 15
Parcel Identification Number (PIN) 9826-66-7738. 16
17
The following individuals were sworn in by Debra Graham, Board Secretary: 18
Karen Kemerait
Gurpreet Singh
Murray Lynch
David Smith
Rusty Monroe
19
Michael Harvey: Reviewed abstract. I would like to ask that our abstract including all attachments and the 20
applicant’s application be entered into the record. 21
22
MOTION: made by Jeff Schmitt to enter information into the record. Seconded by David Blankfard. 23
VOTE: Unanimous 24
25
Michael Harvey: There have been no comments from the general public with respect to this tower. We did 26
receive a phone from Mr. Carl Singley who lives in the area and heard a cell tower was coming and certainly 27
recommends you approve it. The applicant is represented by Ms. Karen Kemerait who would be happy to answer 28
any questions or additional testimony. 29
30
Larry Wright: Could you please explain the graphic on page 127 of the packet. 31
32
Michael Harvey: This is an attachment that goes in the neighborhood notification letter we send to everyone 33
within 1,000 feet giving them a graphic representation of where the meeting is being held. 34
35
Karen Kemerait: My understanding is there have been no concerns or opposition to this cell tower. It will be in 36
an area where coverage is needed in the rural area of the western part of the county. It will provide coverage in 37
the western part of the county and north of the Mebane area. The property owner, Mr. Murray Lynch, is here to 38
support the application. I believe we have met all the ordinance requirements. 39
40
Larry Wright: The people who have signed up are just for reference in case you have any questions. 41
42
MOTION made by Karen Barrows to close the public hearing and go into closed session. Seconded by Jeff 43
Schmitt. 44
VOTE: Unanimous 45
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OC Board of Adjustment – 11/11/2013 Page 59 of 123
1
FINDINGS OF THE ORANGE COUNTY BOARD OF ADJUSTMENT 2
PERTAINING TO A REQUEST SUBMITTED BY 3
AT AND T / AMERICAN TOWER 4
REQUESTING A CLASS B SPECIAL USE PERMIT APPROVAL 5
FOR A TELECOMMUNICATION TOWER AT 6
SADDLE CLUB ROAD PINS 9826-76-9834 (location of tower) AND 7
9826-68-1313 (location of access easement) 8
9
As required under Section 5.2 Table of Permitted Uses of the Orange County Unified 10
Development Ordinance (UDO), a Class B Special Use Permit is required for the erection of a 11
telecommunication tower, over 75 feet but under 200 feet in height, in accordance with the 12
provisions of Section 2.7 of the UDO. Such permits shall comply with general and specific 13
standards as set forth in Section(s) 5.3.2 and 5.10.8 of the UDO. 14
15
Section 5.3.2 (A) (2) of the UDO requires written findings certifying compliance with the 16
following: 17
18
(1) The use will maintain or promote the public health, safety and general welfare, if 19
located where proposed and developed and operated according to the plan as 20
submitted; 21
22
(2) The use will maintain or enhance the value of contiguous property (unless the use is a 23
public necessity, in which case the use need not maintain or enhance the value of 24
contiguous property); and 25
26
(3) The location and character of the use, if developed according to the plan submitted, 27
will be in harmony with the area in which it is to be located and the use is in 28
compliance with the plan for the physical development of the County as embodied in 29
these regulations or in the Comprehensive Plan, or portion thereof, adopted by the 30
Board of County Commissioners; 31
32
In addition, the Board shall make findings certifying that the application is complaint with the 33
following specific standards: 34
35
(5) Specific standards for the submission of Special Use Permit applications as outlined 36
within Section(s) 2.2 and 2.7 of the UDO, 37
(6) Specific regulations governing the development of telecommunication tower as set 38
forth in Section 5.10.8 (A) through (B) of the UDO, 39
(7) Section 5.3.2 (B) relating to the method and adequacy of the provision of: 40
a. Sewage disposal facilities, 41
b. The adequacy of police, fire, and rescue squad protection, and 42
c. The adequacy of vehicular access to the site and traffic conditions around the site 43
(8) The general findings outlined within Section 5.3.2 (A) (2). 44
45
Listed below are the findings of the Orange Planning staff regarding the application in question. The 46
findings have been presented by Article and requirement to assist the Board of Adjustment in its 47
deliberations. 48 49
Approved 4/22/2014
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1
2
SECTION 2.2 AND 2.7.3 CLASS B SPECIAL USE PERMIT APPLICATION COMPONENTS ("Yes" 3
indicates compliance; "No" indicates non-compliance) 4
5
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 2.2
The application for a
Class B Special Use
Permit shall be on forms
provided by the Planning
Department.
X_ Yes ____No Tab 2 of the application
booklet contains a
complete Orange County
Class B Special Use
Permit application for the
project.
_x_Yes ____No
2.2.4 (D)
Applications must be
accompanied by the fee
amount that has been
established by Board of
County Commissioners.
Application fees are
nonrefundable.
X_ Yes ____No Tab 1 of the application
booklet contains a copy
of the checks submitted
for the required fees.
Staff will stipulate the
applicant submitted the
required application fee
for the permit application.
_x_Yes ____No
2.7.3 (B) (1)
A full and accurate
description of the
proposed use, including
its location, appearance,
and operational
characteristics.
X_ Yes ____No Tab 3 of the application
booklet contains a
complete project
narrative describing the
proposed use and
operational
characteristics of the
proposed tower.
_x_Yes ____No
2.7.3 (B) (2)
The names and
addresses of the owners
of the property
X_ Yes ____No Tab(s) 3 and 4 of the
application booklet
contains information
concerning the names
and addresses of the
owner of the property
where the tower is to be
located.
_x_Yes ____No
6
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SECTION 2.2 AND 2.7.3 CONTINUED ("Yes" indicates compliance; "No" indicates 1
non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
2.7.3 (B) (3)
Relevant information
needed to show
compliance with the
general and specific
standards governing the
Special Use
X_ Yes ____No The application booklet
contains various
documents, including a
site plan, containing the
necessary information
establishing compliance
with the provisions of the
Ordinance.
_x_Yes ____No
2.7.3 (B) (4)
Ten (10) copies of the site
plan prepared by a
registered N.C. land
surveyor, architect, or
engineer.
X_ Yes ____No Tab 6 of the application
booklet contains the
required site plan
completed by Tower
Engineering
Professionals of Raleigh,
NC.
_x_Yes ____No
2.7.3 (B) (5)
If the application involves
a Preliminary Subdivision
Plat, 26 copies of the Plat
prepared in accordance
with Section 7.14 shall be
provided.
_X_ Not Applicable The project does not
involve or propose a
subdivision. As a result
no preliminary plat is
required.
_x__ Not Applicable
2.7.3 (B) (6)
A list of all parcels located
within 1000 (Staff Note –
telecommunication tower
applicants are required to
observe a 1000 foot area)
feet of the subject parcel
and the
name and address of
each property owner, as
currently listed in the
Orange County tax
records.
X_ Yes ____No Tab 10 Tab B of the
application booklet
contains a complete list
of property owners within
1000 feet of the subject
property as maintained
by Orange County Land
Records.
_x_Yes ____No
2.7.3 (B) (7)
Elevations of all structures
proposed to be used in
the development.
X_ Yes ____No Tab 6 of the application
booklet contains the
required elevations
_x_Yes ____No
3
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SECTION 2.2 AND 2.7.3 CONTINUED ("Yes" indicates compliance; "No" indicates 1
non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
2.7.3 (B) (8)
Ten (10) copies of an
Environmental
Assessment or
Environmental Impact
Statement as required by
Section 6.16 of the UDO
_X__ Not Applicable Per Section 6.16.2
Exemptions of the UDO
projects involving less
than a total area of two
(2) acres or less are not
required to produce an
Environmental
Assessment.
The proposed project will
not impact more than 2
acres of land area (lease
area is only 100 ft. by
100 ft. in area).
Per Section 6.16.3
Environmental
Assessment of the UDO
the project will not
involve the grading of
more than 40,000 sq. ft.
of property (exclusive of
roads), involve more
than 10,000 gallons per
day of water usage.
_x__ Not Applicable
2.7.3 (B) (9)
Method of disposal of
trees, limbs, stumps and
construction debris
associated with the
permitted activity, which
shall be by some method
other than open burning.
X_ Yes ____No Tab(s) 3 and 6 of the
application booklet
contains the a detailed
narrative and site plan
which notes construction
or land clearing debris
generated on-site will be
disposed of in
accordance with the
County’s Solid Waste
Management Ordinance.
_x_Yes ____No
2.7.3 (B) (10)
Statement from the
applicant indicating the
anticipated development
schedule for the build-out
of the project.
X_ Yes ____No Tab 6 of the application
booklet contains the
required information,
_x_Yes ____No
3
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SECTION 2.2 AND 2.7.3 CONTINUED ("Yes" indicates compliance; "No" indicates 1
non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
2.7.3 (B) (11)
Statement from the
applicant in justification of
any request for vesting for
a period of more than two
years (five years
maximum)
X Not Applicable The applicant is not
requesting vesting of the
project.
_x_ Not Applicable
3
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SECTION 2.7.5 CLASS A SPECIAL NOTIFICATION REQUIREMENTS ("Yes" indicates 1
compliance; "No" indicates non-compliance) 2
3
Ordinance Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 2.7.5 (a)
The Planning Director shall
give public notice of the
date, time and place of the
public hearing
_X Yes
____No
Attachment 3 of the
Abstract package
produced by staff provides
the necessary detail
outlining compliance with
this requirement.
_x_Yes ____No
2.7.6 (b)
Such notice shall be
published in a newspaper of
general circulation in
Orange County once a
week for two successive
weeks, with the first notice
to be published not less
than ten days not more than
we days prior to the date of
the hearing.
_X Yes
____No
The legal ad for the
November 11, 2013 BOA
public hearing was
published in the News of
Orange and the Herald
consistent with the
requirements of the UDO.
_x_Yes ____No
2.7.6 (c)
The Planning Director shall
post on the affected
property a notice of the
public hearing at least ten
days prior to the date of said
hearing.
_X Yes
____No
Attachment 3 of the
Abstract package
produced by staff provides
the necessary detail
outlining compliance with
this requirement.
_x_Yes ____No
2.7.6 (d)
Written notice shall be sent
by certified mail to all
adjacent property owners
not less than 15 days before
the hearing date. Adjacent
property owners are those
whose property lies within
five hundred feet of the
affected property and whose
manes and addresses are
currently listed in the
Orange County tax records.
_X Yes
____No
Attachment 3 of the
Abstract package
produced by staff provides
the necessary detail
outlining compliance with
this requirement.
_x_Yes ____No
4
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SECTION 5.10.8 (A) – STANDARDS FOR TELECOMMUNICATION FACILITIES 1
("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.10.8 Wireless
Telecommunications
Support Structures –
Submittal and Review
Requirements
5.10.8 (A) (1) (a)
A site plan and site plan
application package
prepared in accordance
with Section 2.5 shall be
presented for approval to
the Planning Division
including all requirements
for site development plan
approval as required.
X Yes ___No Tab(s) 6 of the
application booklet
contains the required
information, specifically
the required site plan.
_x_Yes ____No
5.10.8 (A) (1) (b)
A detailed description of
the proposed
telecommunication
support structure (i.e.
monopole, self-supporting
lattice, etc.) including a
detailed narrative
description and
explanation of the specific
objective(s) for the new
facility including a
description as to the
coverage and/or capacity,
technical requirements,
and the identified
boundaries of the specific
geographic area of
intended coverage for the
proposed
telecommunication
support structure
X Yes ___No Tab 3 of the application
booklet contains a
complete project
narrative describing the
proposed use as well as
an explanation of the
specific objective(s) for
the new facility.
Tab(s) 6, 7, 15, 16, 17,
19, 20, 21, 22 of the
application booklet
contains other supporting
documentation satisfying
this requirement.
_x_Yes ____No
3
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SECTION 5.10.8 (A) – STANDARDS FOR TELECOMMUNICATION FACILITIES 1
("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (A) (1) (c)
Elevation drawings and
color renderings of the
proposed tower showing:
(i) The vertical rendition of
the telecommunication
support structure(s)
identifying all users and
attachments,
(ii) All related fixtures,
structures, appurtenances
and apparatus including
the height of said
structures above the
lowest adjacent pre-
existing grade,
(iii) The materials that will
be used on site for said
structures including their
color and any proposed
lighting and shielding
devices, and
(iv) If the facility is
intended to be a stealth,
as defined herein, the
colors and screening
devices for the Planning
Director to verify
consistency with
applicable definitions.
X Yes ___No Tab(s) 3, 6 and 7 of the
application booklet
contains the required
information.
_x_Yes ____No
3
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SECTION 5.10.8 (A) – STANDARDS FOR TELECOMMUNICATION FACILITIES 1
("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (A) (1) (d)
A signed statement from
the applicant certifying
that the proposed
telecommunication
support structure:
(i) Shall be maintained in
a safe manner,
(ii) Is in compliance with
all conditions of all
applicable permits and
authorizations without
exception, and
(iii) Is in compliance with
all applicable and
permissible local, State,
and Federal rules and
regulations.
X Yes ___No Tab(s) 3 and 28 of the
application booklet
contains the required
information.
_x_Yes ____No
5.10.8 (A) (1) (e)
A statement, prepared by
a professional engineer
licensed in the State of
North Carolina, which
through rational
engineering analysis,
certifies the tower's
compliance with
applicable standards as
set forth in the State of
North Carolina Building
Code, and any associated
regulations; and describes
the tower's capacity,
including an example of
the number and type of
antennas it can
accommodate.
X Yes ___No Tab(s) 3 and 26 of the
application booklet
contains the required
information.
_x_Yes ____No
3
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SECTION 5.10.8 (A) – STANDARDS FOR TELECOMMUNICATION FACILITIES 1
("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (A) (1) (f)
A statement stating how
the proposed tower will
minimize visual
intrusiveness to
surrounding properties in
the area. Criteria that may
be used for such evidence
may be height and type of
existing trees surrounding
the proposed tower, and
local topography.
X Yes ___No Tab(s) 3 and 7 of the
application booklet
contains the required
information.
_x_Yes ____No
5.10.8 (A) (1) (g)
A copy of the installed
foundation design
including a geotechnical
sub-surface soils
investigation, evaluation
report, and foundation
recommendation for the
proposed wireless support
structure.
X Yes ___No Tab(s) 3 of the
application booklet
contain required
information. A final
geotech report is
required prior to the
issuance of a building
permit.
Staff will recommend this
become a condition of
approval.
_x_Yes ____No
5.10.8 (A) (1) (h)
The existing cell sites
(latitude, longitude, power
levels) to which this
proposed site will be a
handoff candidate.
X Yes ___No Tab(s) 13 and 18 of the
application booklet
contains the required
information.
_x_Yes ____No
5.10.8 (A) (1) (i)
Propagation studies of the
proposed site and
showing all adjoining
planned, proposed, in-
service or existing sites.
This will include all of the
modeling information used
to produce the study
including, but not limited
to, any assumptions made
about ambient tree height.
X Yes ___No Tab(s) 13, 15, and 17 of
the application booklet
contains the required
information.
_x_Yes ____No
3
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SECTION 5.10.8 (A) – STANDARDS FOR TELECOMMUNICATION FACILITIES 1
("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (A) (1) (j)
The search ring utilized in
finding the proposed site.
X Yes ___No Tab(s) 3 and 13 of the
application booklet
contains the required
information.
The County
telecommunication’s
consultant, CMS, has
reviewed the information
and concurs with the
applicant’s assertions.
Their comments are
detailed within
Attachment 2 of the
abstract.
_x_Yes ____No
5.10.8 (A) (1) (k)
The number, type, height,
and model of the
proposed antennas along
with a copy of the
applicable specification
sheet(s).
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
_x_Yes ____No
5.10.8 (A) (1) (l)
The make, model and
manufacturer of the tower
and antenna(s), antenna
heights and power levels
of proposed site. This will
include documentation
establishing the azimuth,
size, and centerline height
location of all proposed
and existing antennas on
the structure.
X Yes ___No Tab(s) 3, 6 and 15 of the
application booklet
contains the required
information.
_x_Yes ____No
5.10.8 (A) (1) (m)
The frequency,
modulation and class of
service of radio or other
transmitting equipment.
X Yes ___No Tab(s) 3, 15, and 19 of
the application booklet
contains the required
information.
_x_Yes ____No
3
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SECTION 5.10.8 (A) – STANDARDS FOR TELECOMMUNICATION FACILITIES 1
("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (A) (1) (n)
The maximum
transmission power
capability of all radios, as
designed, if the applicant
is a cellular or functional
equivalent carrier, or the
maximum transmission
power capability, as
designed, of all
transmission facilities if
the applicant is not a
cellular or functional
equivalent carrier.
X Yes ___No Tab(s) 3, 15, and 19 of
the application booklet
contains the required
information.
_x_Yes ____No
5.10.8 (A) (1) (o)
The actual intended
transmission and the
maximum effective
radiated power of the
antenna(s).
X Yes ___No Tab(s) 3, 6, 15, and 19
of the application booklet
contains the required
information.
.
_x_Yes ____No
5.10.8 (A) (1) (p)
The direction(s) of
maximum lobes and
associated radiation of the
antenna(s).
X Yes ___No Tab(s) 3, and 19 of the
application booklet
contains the required
information.
.
_x_Yes ____No
5.10.8 (A) (1) (q)
Certification that the NIER
levels at the proposed site
are within the threshold
levels adopted by the
FCC.
X Yes ___No Tab(s) 3 and 19 of the
application booklet
contains the required
information.
_x_Yes ____No
3
4
5
6
7
8
9
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1
SECTION 5.10.8 (A) – STANDARDS FOR TELECOMMUNICATION FACILITIES 2
("Yes" indicates compliance; "No" indicates non-compliance) 3
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (A) (1) (r)
Certification that the
proposed antenna(s) will
not cause interference
with other
telecommunications
devices.
X Yes ___No Tab(s) 3, 14 and 20 of
the application booklet
contains the required
information.
_x_Yes ____No
5.10.8 (A) (1) (s)
A written affidavit stating
why "the proposed site is
necessary for their
communications service"
(e.g., for coverage,
capacity, hole-filling, etc.)
and a statement that there
are no existing alternative
sites within the provided
search ring and there are
no alternative
technologies available
which could provide the
proposed
telecommunications
service need without the
tower.
X Yes ___No Tab(s) 3, 11 and 34 of
the application booklet
contains the required
information.
The affidavit was
prepared by Jerry Jones
of AT and T
_x_Yes ____No
5.10.8 (A) (1) (t)
A copy of the FCC license
applicable for the intended
use of the facility as well
as a copy of the 5 and 10
year building out plan
required by the FCC.
X Yes ___No This information will be
provided prior to the
issuance of a building
permit. Staff is
recommending it become
a condition of approval.
_x_Yes ____No
4
5
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SECTION 5.8.10 (A) (2) ADDITIONAL SUBMITTAL REQUIREMENTS – CO LOCATION OF 1
ANTENNAS ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (A) (2)
In addition to the
requirements denoted
herein, applications for the
co-location of antennas on
existing structures shall
be required to submit the
following:
X Not Applicable The applicant is not
proposing the co-location
of antenna with this
application.
The proposal is for a new
tower, not for the co-
location of equipment.
As a result the
requirements of Section
5.8.10 (A) (2) are not
applicable to this
application request.
This section will be
applicable in the future
where co-locations are
proposed for the tower if
approved.
_x_ Not Applicable
3
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SECTION 5.8.10 (B) GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS 1
("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (1) (a) and (b)
Overall Policy and Desired
Goals
The overall policy and
desired goals for Special Use
Permits for wireless
telecommunications support
structures shall be promoting
and encouraging, wherever
possible, the following:
(a) Alternatives to
constructing new wireless
support structures, including
but not limited to the co-
location of wireless
telecommunications
equipment and mitigating the
visual effect of a wireless
telecommunication support
structure to an extent not
commercially impracticable;
and
(b) The placement, height
and quantity of wireless
telecommunications towers
and equipment in such a
manner, including but not
limited to the use of stealth
technology or camouflage
techniques, to minimize
adverse aesthetic and visual
impacts on the land,
property, buildings, and other
facilities adjacent to,
surrounding, and in generally
the same area as the
requested location of such
wireless telecommunications
support structure, which shall
mean using the least visually
and physically intrusive
facility that is not
technologically or
commercially impracticable
under the facts and
circumstances.
X Yes ___No Tab(s) 3, and the entire
booklet contains the
required information
addressing this
requirement.
There are no existing
towers in the area to
address service needs,
so co-location
opportunities were not
available.
There are no County pre-
designated sites in this
area affording a pre-
screened/sanctioned
location for a
telecommunication
facility.
Tab(s) 3 and 6 provides
sufficient information
denoting compliance with
subsection (b).
_x_Yes ____No
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (2) Balloon
Test
(a) The applicant shall, at
least six weeks prior to a
Class B Special Use
Permit public hearing and
at least 11 weeks prior to
a Class A Special Use
Permit public hearing,
conduct a balloon test
whereby the applicant
shall arrange to fly, or
raise upon a temporary
mast, a minimum of 10’3”
in length, brightly colored
red or orange balloon at
the maximum height of
the proposed new
wireless support structure.
(b) The balloon test shall
be flown for at least four
consecutive daylight
hours starting sometime
between 10:00 A.M. and
2:00 P.M. on the dates
chosen.
(c) A notice of the dates
(including a second date
in case of poor visibility,
weather or atmospheric
conditions on the initial
date), times, and location
of the balloon test shall be
mailed, by certified mail,
return receipt requested,
by the applicant, to all
persons owning property
within 1,000 feet of the
subject parcel no less
X Yes ___No Tab(s) 3, 7, and 10
(Tabs A-D) of the
application booklet
contains the required
information.
The balloon test was
completed on August 17,
2013 – 13 weeks prior to
the November 11, 2013
BOA public hearing.
This date did not fall on a
holiday and is consistent
with the requirement of
Section 5.8.10 (B) (2) (d)
of the UDO as detailed
herein.
Tab 7 contains pictures
of the balloon test, which
was held from 10:00 a.m.
until 2:00 p.m. on August
17, 2013.
Notices of the balloon
test were sent to
property owners within
1000 feet, of the subject
property, via certified
mail on July 25, 2013, 23
days prior to the
scheduled balloon test.
The list of property
owners within 1000 feet
utilized by the applicant
was generated utilizing
data maintained by
Orange County Land
Records as required by
the UDO.
_x_Yes ____No
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1
than 14 days in advance
of the first test date. The
data contained within the
office of Orange County
Land Records shall be
used as the primary
source for determining
which residents are to
receive notice of the
balloon tests.
(d) The primary date shall
be on a weekend
(excluding legal holidays),
but to prevent delays in
the processing of the
application, and in case of
poor weather or
atmospheric conditions on
the initial date, the
secondary date may be a
weekday.
(e) The applicant shall
inform the County
Planning Staff, in writing,
of the dates and times of
the test at least 14 days in
advance.
(f) The applicant shall also
post a sign on the subject
property, and directional
signs posted at locations
to be determined by
Planning Staff. The signs
shall measure no more
than nine square feet in
area and no less than four
square feet in area, giving
the contact information of
the County Planning
Department, the proposed
dates, times, and location
of the balloon test. The
signs shall be posted to
meet the same time limits
as provided for in the
balloon test notification as
stated above.
The test was held
consistent with the
requirements of Section
5.8.10 (B) (2) (d) as
detailed herein.
Planning staff was
informed of the test as
required by Section
5.8.10 (B) (2) (e) as
detailed herein.
Signs were posted on
the property, as well as
off-site directional signs,
on August 2, 2013.
2
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) Submittal
Requirements
5.8.10 (B) (3) (a)
(a) A site plan showing
the following:
(i) The entire site
(including property
boundary lines) and size
of all existing structures
within 500 feet of the site,
(ii) Existing and proposed
structures on site,
(iii) The fall zone of the
tower,
(iv) Existing and proposed
topography at a contour
interval of five feet and
(v) Any officially
designated floodways and
floodplains, or the
presence of alluvial soils.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet C-1 of the site
plan contained in Tab 6
provides the size of all
structures within 500 feet
of the site as well as
denoting the fall zone of
the proposed tower and
the existing/proposed
topography lines.
There is a statement on
sheet C-1 indicating
there are no
floodways/floodplains on
the property. Staff
concurs with this finding.
_x_Yes ___No
5.8.10 (B) (3) (b)
Plans, and elevations for
all proposed structures
and descriptions of the
color and nature of all
exterior material, along
with the make, model, and
manufacturer of the
proposed structure,
maximum antenna
heights, and power levels.
X Yes ___No Tab(s) 3, 6 and 26 of the
application booklet
contains the required
information.
Sheet C-3 of the site
plan contained in Tab 6
provides information
about the tower and
antennas.
_x_Yes ___No
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) (c)
A Landscape and Tree
Preservation Plan drawn
at the same scale as the
site plan, showing the
existing and proposed
trees, shrubs, ground
cover and other
landscape materials. This
plan shall minimize
adverse visual effects of
wireless
telecommunications
support structures and
antennas through careful
design, siting, landscape
screening and innovative
camouflaging techniques.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information. Refer to
Sheet C-2 for additional
information.
_x_Yes ___No
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) (d)
Evidence that the
applicant has investigated
the possibilities of placing
the proposed equipment
on an existing wireless
support structure. Such
evidence shall consist of:
i. A listing of all wireless
telecommunications
support structures within a
two mile radius of the
proposed wireless support
structure site and a listing
of all wireless support
structure, utility poles and
other structures in the
vicinity of the proposed
facility that are technically
feasible for utilization by
the applicant to fill all or a
substantial portion of the
telecommunications
service need identified by
the Applicant pursuant to
section 5.10.8(A)(1)(s).
Documents shall be
submitted at the time of
application filing that
indicates the applicant’s
ability or inability to co-
locate on the identified
tower(s) and reasons why.
X Yes ___No Tab(s) 3, 7, 10 (Tabs A-
E), 13, 14, 19, 20, 26,
28, 30 and 31 of the
application booklet
contains the required
information.
Tab(s) 14 and 20
contains affidavits
indicating there are no
existing towers,
buildings, or other
useable structures within
a 2 mile radius in which
antennas could be
attached.
Tab 13 contains a
search ring map.
_x_Yes ___No
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) (d)
(continued)
ii. Delineation of the
boundaries of the
maximum search ring
within which the
telecommunication
equipment can function as
intended. The following
information shall be
provided for all existing
wireless support
structures within the
search ring:
a. Wireless
telecommunication
support structure height;
b. Existing and planned
wireless support structure
users;
c. Whether the existing
wireless
telecommunication
support structure could
accommodate the
telecommunication
equipment to be attached
to the proposed wireless
support structure without
causing structural
instability or radio
frequency interference;
and
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) (d)
(continued)
d. If the proposed
telecommunication
equipment cannot be
accommodated on the
existing wireless
telecommunication support
structure, assess whether
the existing wireless
support structure could be
structurally strengthened or
whether the antennas
transmitters and related
equipment could be
protected from
electromagnetic
interference, and generally
describe the means and
projected cost of shared
use of the existing wireless
support structure; and
e. Any restrictions or
limitations of the FCC or
FAA that would preclude
the shared use of the
wireless support structure;
f. Propagation studies of all
adjoining planned,
proposed, in-service, or
existing sites, and;
g. Any additional
information requested by
the County.
iii. A summary explanation
of why proposed
telecommunication
equipment cannot be
located on any of the
existing wireless support
structures in the search
ring.
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) (e)
Documentation from
applicable state or federal
agencies indicating
requirements, which affect
the appearance of the
proposed wireless support
structure, such as lighting
and coloring.
X Yes ___No Tab(s) 3 and 31 of the
application booklet
contains the required
information.
There is no lighting
required for the
proposed tower.
_x_Yes ___No
5.8.10 (B) (3) (f)
Draft bond which will
guarantee the removal of
the wireless support
structure in the event that
it is abandoned or unused
for a period of 12 months.
X Yes ___No Tab(s) 3 and 30 of the
application booklet
contains the required
information.
_x_Yes ___No
5.8.10 (B) (3) (g)
A listing of, and current
tax map identifying, all
property owners within
1,000 feet of the parcel
and addressed, first class
stamped envelopes to the
property owners for
notifications of the public
hearing in accordance
with Sections 2.7.5 and
2.7.6 of this Ordinance.
X Yes ___No Tab(s) 3 and 10 (Tabs
A-E) of the application
booklet contains the
required information.
_x_Yes ___No
5.8.10 (B) (3) (h)
A report containing any
comments received by the
applicant in response to
the balloon test along with
color photographs from
various locations around
the balloon.
X Yes ___No Tab(s) 3 and 7 of the
application booklet
contains the required
information.
_x_Yes ___No
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) (i)
Evidence that the balloon
test requirement has been
met, including a notarized
statement and listing of
the property owners
notified of the test, a copy
of a current Orange
County Tax Map showing
the subject property and
all properties within the
notification ring, and
copies of the certified mail
returned receipts from the
mail-out.
X Yes ___No Tab(s) 3 and 10 (Tabs
A-E) of the application
booklet contains the
required information.
_x_Yes ___No
5.8.10 (B) (3) (j)
A notarized statement that
the sign posting
requirement has been
met.
X Yes ___No Tab(s) 3 and 10 of the
application booklet
contains the required
information.
_x_Yes ___No
5.8.10 (B) (3) (k)
Photographs of a clearly
visible balloon floated at the
proposed tower location to
the maximum height of the
tower, as well as
photographs with the
proposed tower and
associated antennas
superimposed upon them
showing what the proposed
tower will look like.
Photographs shall be taken
from locations such as:
property lines, and/or nearby
residential areas, historic
sites, roadways, including
scenic roads and major view
corridors, and other locations
as deemed necessary by the
Planning Staff to assess the
visual impact of the proposed
tower.
X Yes ___No Tab(s) 3 and 7 of the
application booklet
contains the required
information.
_x_Yes ___No
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) (l)
The Special Use Permit
application shall include a
statement that the facility
and its equipment will
comply with all federal,
state and local emission
requirements.
X Yes ___No Tab(s) 3, 19 and 28 of
the application booklet
contains the required
information.
_x_Yes ___No
5.8.10 (B) (3) (m)
An Applicant may be
required to submit an
Environmental
Assessment Analysis and
a Visual addendum.
Based on the results of
the Analysis, including the
Visual addendum, the
County may require
submission of a more
detailed visual analysis.
The scope of the required
Environmental and Visual
Assessment will be
reviewed at the pre-
application meeting.
_X_ Not applicable The applicant was not
required by staff to
complete the additional
information
_x_Not applicable
5.8.10 (B) (3) (n)
If required, a Visual
Impact Assessment,
which shall include:
_X_ Not applicable The applicant was not
required by staff to
complete the additional
information. As a result
the provisions of this
section do not apply.
_x_Not applicable
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.8.10 (B) (3) (o)
All applications shall
contain a demonstration
that the wireless support
structure is sited so as to
have the least visually
intrusive effect reasonably
possible and thereby have
the least adverse visual
effect on the environment
and its character, on
existing vegetation, and
on the residences in the
area of the
telecommunications
tower.
X Yes ___No Tab(s) 3 and 7 of the
application booklet
contains the required
information.
_x_Yes ___No
5.8.10 (B) (3) (p)
A statement, prepared by
a professional engineer
licensed in the State of
North Carolina, which
through rational
engineering analysis,
certifies the tower's
compliance with
applicable standards as
set forth in the State of
North Carolina Building
Code, and any associated
regulations; and describes
the tower's capacity,
including an example of
the number and type of
antennas it can
accommodate.
X Yes ___No Tab(s) 3 and 26 of the
application booklet
contains the required
information.
Tab 26 contains a
statement authored by
Michael Plahovinsak
_x_Yes ___No
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.10.8 (B) (4)
Standards of Evaluation
5.10.8 (B) (4) (a)
(a) The telecommunications
equipment planned for the
proposed wireless support
structures cannot be
accommodated on an
existing wireless support
structures due to one or
more of the following
reasons:
(i) The planned equipment
would exceed the structural
capacity of existing and
approved wireless support
structures, considering
existing and planned use of
those wireless support
structures and the wireless
support structures cannot be
reinforced to accommodate
planned or equivalent
equipment at a reasonable
cost.
(ii) The planned equipment
would cause radio frequency
interference with other
existing or planned
equipment for these wireless
support structures, and the
interference cannot be
prevented at a reasonable
cost.
(iii) Existing or approved
wireless support structures
do not have space on which
the equipment can be placed
so it can function effectively
and reasonably in parity with
similar existing or approved
equipment.
(iv) No tower or other
suitable facility exists in an
area where the equipment to
be placed on the tower will
function in its intended
manner.
X Yes ___No Tab 3 of the application
booklet contains the
required information.
There are no existing
towers in the area to
address service provision
needs. As a result the
antenna proposed for the
site cannot be located
elsewhere.
The application in its
entirety provides the
necessary
documentation outlining
why the tower has to go
on this property.
_x_Yes ___No
3
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1
SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 2
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 3
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (b)
Location of Wireless
Support Structures:
(i) Applicants for facilities
shall locate, site and erect
said facilities according to
the following priorities, in
the following order:
a. On existing County-
owned facilities without
increasing the height of
the tower or structure.
b. On existing Facilities
without increasing the
height of the tower or
structure.
c. On County-owned
properties or facilities.
d. On properties in areas
zoned for commercial or
industrial use.
e. On properties in areas
zoned Agricultural
Residential (AR).
f. On properties in areas
zoned for residential use.
X Yes ___No Tab 3 of the application
booklet contains the
required information.
There are no ‘County’
owned facilities in the
area allowing for antenna
to be located.
There are no existing
towers in the area to
address service provision
needs.
There are no ‘County’
owned properties where
a tower could be located.
There are no
commercially and/or
industrially zoned
properties in the area
where a tower could be
located.
There subject property is
zoned AR.
This property is zoned
for residential use.
_x_Yes ___No
4
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (b)
Continued
(ii) If an Applicant
proposes to place
telecommunications
equipment at a location
that is not a preferred
priority 1 site, then the
Applicant must provide a
detailed explanation as to
why a higher priority site
is not proposed. The
explanation shall be in the
form of a written report
demonstrating the
Applicant’s review of the
above locations in order of
priority and the reason(s)
for the site selection. The
explanation shall, at a
minimum, include the
information required by
section 5.10.8(B)(3)(e).
(iii) The application shall
not be approved unless it
demonstrates that the
telecommunications
equipment may not be
sited at a higher priority
site because of
commercial
impracticability or
because no higher priority
site is available that would
serve to provide the
telecommunications
service need identified by
the Applicant as provided
for in section
5.10.8(A)(1)(s).
X Yes ___No
This property represents
the lowest priority site
per Section 5.10.8 (B) (4)
(b) (i) (f) as detailed
above.
The proposed tower is
located: ‘On properties in
areas zoned for
residential use’
_x_Yes ___No
3
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (b)
Continued
(iv) An Applicant may not
by-pass sites of higher
priority merely because
the site proposed is the
only site leased or
selected. Agreements
between providers limiting
or prohibiting co-location
shall not be a valid basis
for any claim of
commercial
impracticability.
(v) Notwithstanding that a
potential site may be
situated in an area of
highest priority or highest
available priority, an
application shall not be
approved if it conflicts with
the provisions and
requirements of this
Ordinance.
The applicant is not by-
passing a ‘higher priority’
site with the proposal to
erect a tower on this
property. There are no
higher priority sites in the
area where a tower can
be located.
3 4
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Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (b)
Continued
(vi) Wireless support
structures shall not be
located within one-half (½)
mile of any existing
monopole, lattice or guyed
wireless telecommunications
support structure.
a. An exception may be
allowed when the applicant
can sufficiently demonstrate
that:
i. Appropriate space on the
existing telecommunication
wireless support structure is
not available; or
ii. The applicant has made
good faith effort to negotiate
an agreement with the owner
of the existing wireless
telecommunication support
structure and has been
unsuccessful, which must be
documented in writing; or
iii. The telecommunication
equipment on the existing
wireless telecommunication
support structure is not
compatible with the proposed
telecommunication
equipment of the applicant;
or
iv. Adequate coverage by the
applicant cannot be met at
the location of the existing
wireless telecommunication
support structure; or
v. The existing wireless
telecommunication support
structure cannot be
reasonably modified to
accommodate additional co-
location by the applicant.
There are no wireless
support structures within
½ mile of this property.
3
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Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (b)
Continued
b. Exceptions shall only
be allowed after a
thorough analysis of the
search area, provided by
the applicant is performed
by the County’s consultant
or Staff, indicating that
coverage is not possible
on an existing wireless
support structure at the
four-carrier capacity or
other user capacity that
can be achieved. There
must be an 80% approval
vote of the deciding board
for this specific finding to
pass the exception
criteria.
3
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Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (c)
Setbacks
(i) Within or adjacent to
residential zoning districts,
minimum setbacks from
the base of the wireless
support structure to the
property boundary shall
be equal to 110% of the
wireless support structure
height.
(ii) If the wireless support
structure is proposed as
an accessory use to a
residential use, the
setback shall be 110% of
the wireless support
structure height from any
residence or dwelling unit
on the subject property.
(iii) Adjacent to non-
residential uses or non-
residential zoning districts,
minimum setbacks from
the base of the wireless
support structure to the
property boundary shall
be the greater of 20% of
the tower height, or the
minimum required
setback.
(iv) All buildings and other
structures to be located
on the same zoning lot as
a telecommunication
tower wireless support
structure shall conform
with the setbacks
established for the zoning
district or as established
through the subdivision
process, whichever is
greater.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet C-1 of the site
plan contained in Tab 6
indicates setback of the
tower from the property
line.
The application package
indicates there are no
residential ‘houses’ on
the site.
There are also no
adjacent non-residential
land uses or zoning
districts per subsection
(iii) as detailed herein.
_x_Yes ___No
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PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (d) Access
(i) At a wireless
telecommunications
support structure site, an
access road, turn around
space and parking shall
be provided to assure
adequate emergency and
service access.
(ii) Maximum use of
existing roads, whether
public or private, shall be
made to the extent
practicable.
(iii) Road construction
shall, at all times,
minimize ground
disturbance and the
cutting of vegetation.
(iv) Road grades shall
closely follow natural
contours to assure
minimal visual disturbance
and reduce soil erosion.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet C-1 and C-2 of the
site plan contained in
Tab 6 contains sufficient
detail denoting
compliance.
Existing roads will be
utilized to the maximum
extent possible. Road
construction shall follow,
to the greatest extent
possible, the existing
contour of the land and
minimize the removal of
vegetation.
_x_Yes ___No
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
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FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (e)
Landscape and Buffers
(i) A Type C Landscape
Buffer shall be provided
between the wireless
support structures and its
accessory structures and
adjoining
property/properties.
(ii) Existing vegetation
may be removed only to
the extent necessary to
accommodate the
wireless support
structures, equipment
buildings, and support
structures such as guy
wires.
(iii) Plantings around the
compound perimeter,
outside of any fence or
wall, shall be composed
entirely of fast growing
evergreen vegetation.
(iv) New plantings and
existing vegetation used
for screening shall be at
least six feet in height or
greater at planting.
(v) Proposed plantings
(name, type, height) shall
be shown on the
Landscape Plan for the
facility.
(vi) Landscaping shall
provide a screen on a
year-round basis.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
_x_Yes ___No
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RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
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FINDINGS
5.10.8 (B) (4) (f)
The visibility of the balloon
to adjacent properties and
the surrounding area shall
not constitute sole
justification of denial of a
permit application but is
an indication of what
location on the site may
be less visually intrusive.
X Yes ___No The applicant
acknowledges the
condition. Balloon Test
information, including
visibility
pictures/renderings are
contained within Tab 7 of
the application package
_x_Yes ___No
5.10.8 (B) (4) (g)
The applicant shall
demonstrate and provide
a description in writing
and by drawing how it
shall effectively screen
from view the base and all
related equipment and
structures of the proposed
facility.
X Yes ___No Tab(s) 3, 6, and 7 of the
application booklet
contains the required
information.
Sheet C-1 of the site
plan in Tab 6 provides
information on the
landscaping. Tab 7
provides information
related to the balloon
visibility.
_x_Yes ___No
5.10.8 (B) (4) (h)
The site plan shall
indicate a location for at
least two equipment
buildings in addition to
that proposed for use by
the applicant.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet C-1 of the site
plan in Tab 6 provides
the required information.
_x_Yes ___No
5.10.8 (B) (4) (i)
All utilities at a facility site
shall be installed
underground and in
compliance with all Laws,
ordinances, rules and
regulations of the County,
including specifically, but
not limited to, the National
Electrical Safety Code
and the National Electrical
Code where appropriate.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
_x_Yes ___No
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
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FINDINGS
5.10.8 (B) (4) (j)
All wireless support
structures shall satisfy all
applicable public safety,
land use, or zoning issues
required in this Ordinance,
including aesthetics,
landscaping, land-use
based location priorities,
structural design,
setbacks, and fall zones.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
_x_Yes ___No
5.10.8 (B) (4) (k)
Fences and Walls
(i) An eight foot fence or
wall shall be required
around the base of any
wireless support
structures. This fence or
wall shall encompass all
accessory equipment
within the compound.
(ii) Fences shall be
required around guy wire
tie downs
(iii) A fence or wall may be
placed around the
perimeter of the facility to
include guy wire tie downs
and associated equipment
should the applicant/
owner wish to do so.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet(s) C 1, 3, and 4 of
the site plan contained in
Tab 6 contains the
required information on
proposed fences and
walls.
_x_Yes ___No
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (l)
The communications
tower is structurally
designed to support
additional users as
provided for in Section
5.10.8(A)(3)(d), and the
Special Use Permit
includes a statement that
the owner of the wireless
support structure is willing
to permit other user(s) to
attach communication
equipment which do not
interfere with the primary
purpose of the wireless
support structure,
provided that such other
users agree to negotiate a
reasonable compensation
to the owner from such
liability as may result from
such attachment.
X Yes ___No Tab(s) 3 and 29 of the
application booklet
contains the required
information.
Tab 29 contains the
required co-location
certification document.
_x_Yes ___No
5.10.8 (B) (4) (m)
To minimize the number
of antenna arrays and
thus the visual impact, the
County may require the
use of dual mode
antennas to be used,
including by two different
carriers, unless it can be
proven that such will not
work technologically and
that such would have the
effect of prohibiting the
provision of service in the
County.
X Yes ___No The applicant
acknowledges the
condition.
Staff is recommending
this as a specific
condition of approval.
Language within the
application allows for this
if required by the County.
_x_Yes ___No
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STAFF
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FINDINGS
EVIDENCE SUBMITTED
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BOA
FINDINGS
5.10.8 (B) (4) (n)
Structures shall be
galvanized and/or painted
with a rust-preventive
paint of an appropriate
color to harmonize with
the surroundings.
X Yes ___No The applicant
acknowledges the
condition.
Language within the
application indicates the
proposed monopole will
be constructed of
galvanized steel, grey in
color, and will ‘harmonize
and blend with and into
the environment and
natural color of the
background’
_x_Yes ___No
5.10.8 (B) (4) (o)
Both the wireless
telecommunications
support structure and any
and all accessory or
associated
telecommunication
equipment and related
facilities shall maximize
the use of building
materials, colors and
textures designed to blend
with the structure to which
it may be affixed and/or to
harmonize with the natural
surroundings, this shall
include the utilization of
stealth technology as may
be required by the
County.
X Yes ___No Tab(s) 3 of the
application booklet
contains the required
information.
Language within the
application indicates the
proposed monopole will
be constructed of
galvanized steel, grey in
color, and will ‘harmonize
and blend with and into
the environment and
natural color of the
background’
_x_Yes ___No
3
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
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BOA
FINDINGS
5.10.8 (B) (4) (p)
Antennas
(i) All new or replacement
antennas, except omni-
directional whip antennas,
shall be flush-mounted or
as close to flush-mounted
as is technologically
possible on any facility, so
long as such does not
have the effect of
prohibiting the provision of
service to the intended
service area, alone or in
combination with another
site(s), unless the
applicant can prove that it
is technologically
impracticable.
(ii) If attached to a
building, all antennas shall
be mounted on the face of
the building and
camouflaged so as to
match the color and, if
possible, texture of the
building or in a manner so
as to make the antennas
as visually innocuous and
undetectable as is
possible given the facts
and circumstances
involved.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet C-1 of the site
plan contained within
Tab 6 indicated the
antennas will be located
on the proposed
monopole tower will be
flush mounted.
Language within the
application indicates this
condition will be adhered
to.
Subsection (ii) is not
applicable to this
application.
_x_Yes ___No
3
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
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BOA
FINDINGS
5.10.8 (B) (4) (q)
Lighting
__X__ Not
Applicable
As detailed within the
application the tower is
not required, or is it
going to be, illuminated.
_x_Not Applicable
5.10.8 (B) (4) (r)
The tower and antenna
will not result in a
significant adverse impact
on the view of or from any
historic site, scenic road,
or major view corridor.
X Yes ___No Adjacent roadways are
not designated as scenic
roads or major view
corridors.
According to a
memorandum from
Orange County DEAPR
staff, contained within
Attachment 2 of the
staff abstract, there are
no issues with respect to
detraction from historic
sites.
_x_Yes ___No
5.10.8 (B) (4) (s)
Facilities, including
antennas, towers and
other supporting
structures, such as guy
anchor points and wires,
shall be made
inaccessible to individuals
and constructed or
shielded in such a manner
that they cannot be
climbed or collided with;
and transmitters and
telecommunications
control points shall be
installed in such a manner
that they are readily
accessible only to persons
authorized to operate or
service them.
X Yes ___No The applicant
acknowledges the
condition.
Language within the
application indicates this
condition will be adhered
to.
_x_Yes ___No
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (t)
All abandoned
communication wireless
support structures shall be
removed within 12 months
of the cessation of use. A
bond or other security
guaranteeing the removal
of the tower in the event
that it is abandoned or
unused for a period of 12
months shall be posted. A
cost estimate shall be
provided by a qualified
General Contractor
licensed in the State of
North Carolina. The
amount of the security
shall be 110% of the
estimate.
X Yes ___No The applicant
acknowledges the
condition.
Language within the
application indicates this
condition will be adhered
to.
This will be addressed
prior to the issuance of a
Certificate of Occupancy
of the structure and shall
become a condition of
approval.
_x_Yes ___No
5.10.8 (B) (4) (u)
A determination shall be
made that the facility and
its equipment will comply
with all federal, state and
local emission
requirements, and the
Special Use Permit shall
include a statement that
the facility and its
equipment will comply
with all federal, state and
local emission
requirements.
X Yes ___No The applicant
acknowledges the
condition.
Language within the
application indicates this
condition will be adhered
to.
_x_Yes ___No
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PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (v)
Electro-magnetic radiation
levels.
(i) The Special Use Permit
shall include a condition
that the electro-
magnetic radiation levels
maintain compliance with
requirements of the FCC,
regarding emission of
electromagnetic radiation.
(ii) Within 30 days of
installation of equipment
on the tower, and within
30 days of the installation
of any additional
equipment in the future,
the tower owner shall
provide documentation of
emission levels in relation
to FCC standards.
(iii) In addition, the tower
owner must provide
documentation of
emission levels within five
working days if so
requested by Orange
County.
(iv) Orange County may
make such requests at
any time, not to exceed
two times per year.
X Yes ___No The applicant
acknowledges the
condition.
Language within the
application indicates this
condition will be adhered
to.
This will become a
condition of approval for
the project.
_x_Yes ___No
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (4) (w)
“High Voltage”, "No
Trespassing" and Other
Signs
(i) If high voltage is
necessary for the
operation of the
telecommunications tower
or any accessory
structures, "HIGH
VOLTAGE - DANGER"
warning signs shall be
permanently attached to
the fence or wall and shall
be spaced no more than
40 feet apart.
(ii) "NO TRESPASSING"
warning signs shall be
permanently attached to
the fence or wall and shall
be spaced no more than
40 feet apart.
(iii) The letters for the
"HIGH VOLTAGE -
DANGER" and "NO
TRESPASSING" warning
signs shall be at least six
inches in height. The two
warning signs may be
combined into one sign.
The warning signs shall
be installed at least five
feet above the finished
grade of the fence.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet C-4 of the site
plan contained within
Tab 6 provides the
signage details for the
project, demonstrating
compliance with this
provision.
_x_Yes ___No
3
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STAFF
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FINDINGS
EVIDENCE SUBMITTED
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FINDINGS
5.10.8 (B) (4) (w)
Continued
(iv) The warning signs
may be attached to
freestanding poles if the
content of the signs
would, or could, be
obstructed by
landscaping. Signs noting
federal registration (if
required) shall be
attached to the tower
structure in compliance
with federal regulation.
(v) Facilities shall contain
a sign no larger than four
square feet to provide
adequate notification to
persons in the immediate
area of the presence of
RF radiation or to control
exposure to RF radiation
within a given area.
(vi) A sign no larger than
four square feet
containing the name(s) of
the owner(s) and
operator(s) of the
antenna(s) as well as
emergency phone
number(s) shall be
installed. The sign shall
be on the equipment
shelter or cabinet of the
applicant and be visible
from the access point of
the site and must identify
the equipment owner of
the shelter or cabinet.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet C-4 of the site
plan contained within
Tab 6 provides the
signage details for the
project, demonstrating
compliance with this
provision.
_x_Yes ___No
3
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STAFF
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FINDINGS
EVIDENCE SUBMITTED
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BOA
FINDINGS
5.10.8 (B) (4) (w)
Continued
(vii) On tower sites, an
FCC registration sign, as
applicable, is also to be
present. The signs shall
not be lighted, unless
applicable law, rule or
regulation requires
lighting.
(viii) The use of any
portion of a tower for
signs or advertising
purposes including
company name, banners,
streamers, etc. shall be
strictly prohibited.
(ix) Mobile or immobile
equipment not used in
direct support of a tower
facility shall not be stored
or parked on the site of
the telecommunication
tower, unless repairs to
the tower are being made.
X Yes ___No Tab(s) 3 and 6 of the
application booklet
contains the required
information.
Sheet C-4 of the site
plan contained within
Tab 6 provides the
signage details for the
project, demonstrating
compliance with this
provision.
_x_Yes ___No
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
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FINDINGS
BOA
FINDINGS
5.10.8 (B) (5)
Bond Security
(a) The applicant and the
owner of record of any
proposed facility property
site shall, at its cost and
expense, be jointly
required to execute and
file with the County a
bond, or other form of
security acceptable to the
County as to type of
security and the form and
manner of execution, in
an amount of at least
$75,000.00 for a tower
and with such sureties as
are deemed sufficient by
the County to assure the
faithful performance of the
terms and conditions of
this Section and
conditions of any Special
Use Permit issued
pursuant to this Section.
(b) The full amount of the
bond or security shall
remain in full force and
effect throughout the term
of the Special Use Permit
and/or until any necessary
site restoration is
completed to restore the
site to a condition
comparable to that, which
existed prior to the
issuance of the original
Special Use Permit Tower
Inspection
X Yes ___No Tab(s) 3 of the
application booklet
acknowledges the
condition and indicates it
shall be adhered to.
_x_Yes ___No
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STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
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FINDINGS
5.10.8 (B) (6)
Liability Insurance
(a) A holder of a Special
Use Permit for a wireless
support structure shall
secure and at all times
maintain public liability
insurance for personal
injuries, death and
property damage, and
umbrella insurance
coverage, for the duration
of the Special Use Permit
in the following amounts:
(i) Commercial General
Liability covering personal
injuries, death and
property damage:
$1,000,000 per
occurrence/$2,000,000
aggregate; and
(ii) Automobile Coverage:
$1,000,000.00 per
occurrence/ $2,000,000
aggregate; and
(iii) A $3,000,000
Umbrella coverage; and
(iv) Workers
Compensation and
Disability: Statutory
amounts.
(b) For a wireless support
structure on County
property, the Commercial
General Liability
insurance policy shall
specifically name the
County as an additional
insured. The insurance
policies shall be issued by
an agent or representative
of an insurance company
licensed to do business in
the State and with a
Best’s rating of at least A.
X Yes ___No Tab(s) 3 of the
application booklet
acknowledges the
condition and indicates it
shall be adhered to.
_x_Yes ___No
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RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
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5.10.8 (B) (6)
Liability Insurance
Continued
(c) The insurance policies
shall contain an
endorsement obligating
the insurance company to
furnish the County with at
least 30 days prior written
notice in advance of the
cancellation of the
insurance.
(d) Renewal or
replacement policies or
certificates shall be
delivered to the County at
least 15 days before the
expiration of the insurance
that such policies are to
renew or replace.
(e) Before construction of
a permitted facility is
initiated, but in no case
later than 15 days prior to
the grant of the building
permit, the holder of the
Special Use Permit shall
deliver to the County a
copy of each of the
policies or certificates
representing the
insurance in the required
amounts. A Certificate of
Insurance that states that
it is for informational
purposes only and does
not confer rights upon the
County shall not be
deemed to comply with
this Section.
X Yes ___No Tab(s) 3 of the
application booklet
acknowledges the
condition and indicates it
shall be adhered to.
This shall become a
condition of approval for
the project.
_x_Yes ___No
3
4
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SECTION 5.10.8 (B) – GENERAL SUBMITTAL REQUIREMENTS – SPECIAL USE PERMITS – 1
CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
5.10.8 (B) (6)
Liability Insurance
Continued
(c) The insurance policies
shall contain an
endorsement obligating
the insurance company to
furnish the County with at
least 30 days prior written
notice in advance of the
cancellation of the
insurance.
(d) Renewal or
replacement policies or
certificates shall be
delivered to the County at
least 15 days before the
expiration of the insurance
that such policies are to
renew or replace.
(e) Before construction of
a permitted facility is
initiated, but in no case
later than 15 days prior to
the grant of the building
permit, the holder of the
Special Use Permit shall
deliver to the County a
copy of each of the
policies or certificates
representing the
insurance in the required
amounts. A Certificate of
Insurance that states that
it is for informational
purposes only and does
not confer rights upon the
County shall not be
deemed to comply with
this Section.
X Yes ___No Tab(s) 3 of the
application booklet
acknowledges the
condition and indicates it
shall be adhered to.
This shall become a
condition of approval for
the project.
_x_Yes ___No
3
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SECTION 5.3.2 (B) – SPECIFIC STANDARDS – SPECIAL USE PERMITS ("Yes" indicates 1
compliance; "No" indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (B) (1)
Method and adequacy of
provision for sewage
disposal facilities, solid
waste and water service.
X_ Yes ____No Attachment 2 of the
staff prepared abstract
contains
memorandum/emails
from Orange County
Environmental Health
indicating there are no
septic systems required
for the support of the
proposed
telecommunication
tower.
There is also an e-mail
from Jeff Scouten,
Orange County Solid
Waste, indicating his
approval of the project.
_x_Yes ____No
3
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SECTION 5.3.2 (B) CONTINUED ("Yes" indicates compliance; "No" indicates non-compliance) 1
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (B) (2)
Method and adequacy of
police, fire and rescue
squad protection.
X_ Yes ____No Fire protection will be
provided by the Efland
Volunteer Fire
Department, rescue
service by the Orange
County Emergency
Management, and police
protection by the Orange
County Sheriff’s
Department.
Tab(s) 32 and 33 of the
application booklet
contains an e-mail from
Mr. David Sykes of
Orange County
Emergency Management
concerning approval of
the project.
Orange County Sheriff’s
office has also indicated
they can support the
project.
_x_Yes ____No
Section 5.3.2 (B) (3)
Method and adequacy of
vehicle access to the site
and traffic conditions
around the site.
_X Yes ___No The submitted site plan
shows the required
access points.
A recommended
condition of approval is
the applicant secure a
NC DOT drive permit
allowing for the project to
be accessed via New
Sharon Church Road
_x_Yes ____No
2
3
4
MOTION made by David Blankfard to agree with staff’s findings for pages 130-180. Seconded by Jeff Schmitt. 5
VOTE: Unanimous 6
7 8
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SECTION 5.3.2 (A) Special Uses – General Standards ("Yes" indicates compliance; "No" 1
indicates non-compliance) 2
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
In accordance with Section
5.3.2 (A) (2), the Board of
Adjustment shall also
consider the following
general conditions before
the application for a
Special Use can be
approved:
NOTE: Planning
Staff does not
provide a
recommendation
on these items as
the Board is
expected to act
based on the sworn
testimony provided
at the hearing.
Section 5.3.2 (A) (2) (a)
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.
_ Will _Will Not Staff will remind the Board
there is the following
information available, as
submitted by the
applicant, related to
addressing this
requirement:
• The application
package and project
narrative contained
within Tab 3 of the
application booklet.
• Tab 36 of the
application booklet
contains an impact
analysis, completed by
David Smith,
indicating the project
will not impact the
value of adjacent
property.
• Tab 6 of the
application booklet
contains a site plan
denoting the projects
compliance with the
UDO.
• Tab(s) 32 and 33 of
the booklet contains
approvals from County
EMS and Sheriff’s
office.
x Will _Will Not
3
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1
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (A) (2) (a)
Continued
• The application
booklet contains
evidence
demonstrating the
need for the tower,
provisions for
guaranteeing the
public’s safety and
general welfare.
2
3
MOTION made by Mark Micol to find in favor of Section 5.3.2 (A)(2)(a) that the use will maintain or promote the 4
public health safety and general welfare based on the fact the additional tower will encourage the expansion of 5
high speed internet in the county and provide equitable access to the rural underserved areas. Seconded by 6
David Blankfard. 7
VOTE: Unanimous 8
9 10
11
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SECTION 5.3.2 (A) Special Uses – General Standards ("Yes" indicates compliance; "No" 1
indicates non-compliance) 2 3
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (A) (2) (b)
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).
Will _Will Not Staff will remind the Board
there is the following
information available, as
submitted by the
applicant, related to
addressing this
requirement:
• The application
package and project
narrative contained
within Tab 3 of the
application booklet.
• Tab 36 of the
application booklet
contains an impact
analysis, completed by
David Smith,
indicating the project
will not impact the
value of adjacent
property.
• Tab 6 of the
application booklet
contains a site plan
denoting the projects
compliance with the
UDO.
x Will _Will Not
4
5
MOTION made by Jeff Schmitt to find in favor of Section 5.3.2 (A)(2)(b) as a result of the information provided by 6
David Smith regarding adjoining property and surveys that had been done that this construction will continue to 7
enhance the value of contiguous property or will not diminish it in any manner and will conform will the Uniform 8
Development Code. Seconded by David Blankfard. 9
VOTE: Unanimous 10
11
12 13
14
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1
Ordinance
Requirements
PLANNING
STAFF
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT
FINDINGS
BOA
FINDINGS
Section 5.3.2 (A) (2) (c)
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.
Is __ Is Not Staff will remind the Board
there is the following
information available, as
submitted by the
applicant, related to
addressing this
requirement:
• The application
package and project
narrative contained
within Tab 3 of the
application booklet.
• Tab 36 of the
application booklet
contains an impact
analysis, completed by
David Smith,
indicating the project
will not impact the
value of adjacent
property.
• Tab 6 of the
application booklet
contains a site plan
denoting the projects
compliance with the
UDO.
x Is __ Is Not
2
3
MOTION made by Karen Barrows to find in favor of Section 5.3.2 (A)(2)(c) that the location and character use if 4
developed according to plan will be in compliance with the plan. Seconded by Jeff Schmitt. 5
VOTE: Unanimous6
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1
1. The height of the tower shall not exceed a height of 199 feet above pre-construction grade 2
as detailed within the approved application package as reviewed and acted upon by the 3
Board of Adjustment at their November 11, 2013 meeting. 4
2. Existing vegetation, as detailed on the approved site plan reviewed and acted upon by the 5
Board of Adjustment at their November 11, 2013 meeting, shall be maintained as 6
indicated. 7
3. The facility and its equipment shall comply with all federal, state and local emission 8
requirements. 9
4. The electro-magnetic radiation levels shall be maintained compliance with all federal, state 10
and local requirements, including the requirements of the Federal Communications 11
Commission regarding emission of electromagnetic radiation. Within 30 days of 12
installation of equipment on the tower, and within 30 days of the installation of any 13
additional equipment in the future, the tower owner shall provide documentation of 14
emission levels in relation to FCC standards to the County for review. In addition, the 15
tower owner must provide documentation of emission levels within five working days if so 16
requested by Orange County. Orange County may make such requests at any time, not 17
to exceed 2 times per year. 18
5. Two ten pound 2-A:20-B:C dry chemical portable fire extinguishers shall be installed at the 19
site at a conspicuous location for use during an emergency event. 20
6. As required within Section 5.10.8 (A) (1) (g) of the UDO, the applicant shall be required to 21
provide a final copy of the installed foundation design including a geotechnical sub-surface 22
soils investigation, evaluation report, and foundation recommendation for the proposed 23
wireless support structure prior to the commencement of land disturbing activities 24
associated with the construction of the telecommunication facilities. 25
7. The applicant shall obtain a driveway permit from the NC Department of Transportation 26
approving the driveway access for the project off of Saddle Club Road. 27
8. Final assignment of a street address shall be completed by Orange County Land Records 28
prior to the issuance of any permit authorizing land disturbing activity on the property. 29
9. The applicant shall obtain all necessary development permits from the County prior to the 30
initiation of and land disturbing activity associated with the construction of the 31
telecommunication facilities including, but not limited to: Building Permit, Erosion 32
Control/Stormwater Management Permit, Zoning Compliance Permit. 33
RECOMMENDATION:
Staff has not received any information that would establish grounds for making a negative finding on the general
standards as detailed above. These standards include maintaining or promoting the public health, safety, and
general welfare, maintaining or enhancing the value of contiguous property, the use being in harmony with the
area in which it is to be located, and the use being in compliance with the general plan for the physical
development of the County.
Staff has reviewed the application, the site plan, and all supporting documentation and has found that the
applicant complies with the specific standards and required regulations as outlined within the UDO
Provided the Board of Adjustment finds in the af firmative on the specific and general standards, the Board could
make a positive finding on this application. In the event that the Board makes a recommendation to issue the
permit, staff recommends the attachment of the following conditions:
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OC Board of Adjustment – 11/11/2013 Page 116 of 123
10. Any proposed co-location of antenna on this tower shall be reviewed, acted upon, and 1
installed in accordance with the provisions of the UDO. 2
11. A co-location site shall be offered to the County for the placement of antenna in support of 3
local emergency communication needs. 4
12. The applicant shall submit all necessary bonding/financial security documents to the 5
County Attorney’s office for review and approval guaranteeing the removal of the tower in 6
the event it is abandoned or unused for a period of 12 months. A cost estimate shall be 7
provided by a qualified contractor. The amount of the security shall be 110 percent of the 8
estimate. This must be completed before building permits are issued. 9
13. Telecommunication tower owners shall submit a report to the County Inspections Division 10
certifying structural and electrical integrity upon completion of the initial construction and at 11
intervals as specified within the UDO. 12
14. Inspection records shall be kept by the tower owner and made available upon request to 13
the County Inspections Division during regular business hours. Inspections shall be 14
performed as specified within the UDO. 15
15. In those cases where an inspection is required, which is not performed by Orange County 16
Inspections, the applicant is required to notify the Planning Department and any applicable 17
County telecommunication consultant of the inspection and its results. 18
16. Nothing associated with the approval, development or use of the property in support of the 19
proposed telecommunication facilities shall be construed as impacting the use of the 20
property for bona-fide farm purposes. Expansion of farming activities shall not constitute a 21
modification of the special use permit as detailed within the UDO requiring a re-review of 22
the project by the Board of Adjustment. 23
17. The County’s telecommunications consultant shall issue a final Certificate of Completion 24
upon the completion of a final inspection of the constructed telecommunication facilities. 25
Commercial service cannot be provided/initiated until this final Certificate is completed and 26
issued. 27
18. The Special Use Permit will automatically expire within 12 months from the date of 28
approval if the use has not commenced or construction has not commenced or proceeded 29
unless a timely application for extension of this time limit is approved by the Board of 30
Adjustment. 31
19. If any condition of this Special Use Permit shall be held invalid or void, then this Special 32
Use Permit shall be void in its entirety and of no effect. 33
34
MOTION made by David Blankfard to approve the Special Use Permit with the recommendations #1-19 35
presented by staff. Seconded by Jeff Schmitt. 36
VOTE: Unanimous 37
38
CONTINUATION OF BUCK APPEAL – A-3-13 39
Larry Wright: I would like to reconvene our closed session on Agenda item A-3-13, the appeal of a decision 40
made by the zoning officer submitted by Mr. Buck. You were going to give us counsel (to David Rooks). I was 41
going to offer a method of reaching a resolution in the sense of framing the question for making this decision. 42
43
David Rooks: My suggestion is that you frame it in terms of three questions as if you were doing an appeal as to 44
what this really is. The first would be and I am assuming that Mr. Davis was the development officer when he 45
signed this plat. Question number 1, did the development officer err in failing to apply the subdivision ordinance 46
recreation space requirements in effect on March 31, 1998 in the decision to approve the Phase IV Churton 47
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Grove plat. Did he err by not applying the 1998 standards? Question number 2, did the development officer 1
approve the Phase for Churton Grove plat in violation of the active recreation requirements of the subdivision 2
ordinance in effect on May 20, 1986, which is the date the special use permit was approved so those are the two 3
dates. March 31, 1998 which is the date the permit was actually issued and the date of rezoning and May 20, 4
1986, the date of the special use permit. Question 3, did the development officer approve the phase for Churton 5
Grove plat in violation of the special use permit. That goes to the argument he was making about the quality of 6
the open space provided did not meet the standard. Question number 1, did Mr. Davis commit an error in 7
approving it without complying with the ordinance in effect on March 31, 1998 in Phase IV. 8
9
Jeff Schmitt: Phase IV has been appealed. 10
11
David Rooks: That answer will be yes or no. Did the development officer approve the phase for Churton Grove 12
plat in violation of the active recreation requirements of the subdivision ordinance in effect on May 20, 1986 then 13
the third question, did the development officer approve the Phase IV Churton Grove plat in violation of the special 14
use permit. This is an up or down vote. This is not like a special use permit. 15
16
Larry Wright: Could you address the jurisdiction? This is a point that has been tossed around that, could you 17
please address that? 18
19
David Rooks: The County actually raised the question as to whether this board has jurisdiction to hear this 20
appeal at all. That flows from the fact that the state enabling legislation allows a county to have a Board of 21
Adjustment and grants it authority, said that its authority is to deal with planning not subdivision, zoning not 22
subdivision so there is an argument that you have no authority to hear a decision on an appeal to grant or deny a 23
subdivision plat. 24
25
Jeff Schmitt: Subdivision meaning in this case, Phase IV? 26
27
David Rooks: Right. All that is being appealed is the approval of a plat. 28
29
David Blankfard: Where are they in construction? 30
31
David Rooks: Done. 32
33
Jeff Schmitt: I find myself in two separate cans about this. I find it hard to believe that the county and the 34
developer would think that they could either live with and/or go forward with a special use permit 12 years after it 35
was put into effect. The world has moved on. This thing was put in holding pattern for that time period and I think 36
it is almost naïve to think he could go forward with these very limited and unstructured things but conversely I 37
hear Mr. Gledhill’s comment about what that is and what the law is in this case. I don’t know if anything like this 38
has every come up. I have a lot of empathy as to what is going on. Part of the issue is there has been no zoning 39
enforcement about what is going on. They submitted a plat and nobody has paid any attention to what has 40
happened to it. They have put this stuff out there and nobody has come along and said that is not right. 41
42
Mark Micol: Is there any precedence for this? 43
44
David Rooks: I have not seen anything like this ever. 45
46
Karen Barrows: I am of the opinion this is beyond our jurisdiction. It is a subdivision thing and that is not what we 47
are here for. 48
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1
Mark Micol: Mr. Gledhill actually made the comment that we can state that in the resolution but then we can also 2
say we can answer these 3 questions he has proposed. 3
4
Larry Wright: Mr. Buck has gone through a lot of work, we owe him that. Whether he likes out decision or not, 5
we owe him this. 6
7
David Blankfard: The County Commissioners were planning to put this in a time capsule to make it happen after 8
the water issue was resolved. 9
10
Larry Wright: We did that with Buckhorn. 11
12
Jeff Schmitt: Buckhorn had an 18 month time horizon; you had to begin construction within 18 months. 13
14
David Blankfard: If you put this in a time capsule, so it would work, the county negotiated all these things with the 15
previous owner and then they sold it to Newland and said you have to finish all this we didn’t build out in the first 16
place, you are stuck building it and they got a great deal because they didn’t have to build any of this stuff. The 17
county had to start re-negotiating with Newland to get all these items put in. That’s the way I am reading all the 18
correspondence. 19
20
Jeff Schmitt: So it is your contention that the commissioners knew that in granting this permit and having a 21
hearing and all that stuff in 1986, they knew water would not be there for at least 10 years but they did it anyway. 22
23
David Blankfard: And they knew the new 1986 ordinance was coming out as well and that would change all the 24
requirements again so they purposely put in what active recreation was. They put that definition in the SUP. 25
26
Mark Micol: It is hard to get into the minds of those board members from 30 years ago. That is taking things out 27
of context. 28
29
Jeff Schmitt: I think if we were dealing with the whole shebang but after Phases I, II, IIa and 3b have been 30
completed and done and now we are dealing with the residual from what was or was not done regarding this one 31
section, I find it difficult we can do that simply because I think it is a subdivision thing. 32
33
Larry Wright: I am right where you are. I really feel it is not within our jurisdiction and I feel somehow that needs 34
to be said but then we get to these three points that our counsel has suggested… Did Mr. Davis err? That would 35
be more of an interpretation of zoning. 36
37
David Rooks: That is just taking the appeal as it was presented and listened to what he argued and then trying to 38
boil it down to a central point, I think summarizes the three bases. 39
40
Larry Wright: Then you are saying the Phase IV applied to 1998 standards so that would be… is that within our 41
jurisdiction. 42
43
Mark Micol: I think it is a leap to think one person erred when so many eyes were on this. This was big deal. A 44
lot of people signed off on this. 45
46
Jeff Schmitt: This was Economic Development which the county has been inadequate on and tried to push away 47
for years. This was a lot of tax dollars, a lot new people, a lot of revenue coming in. 48
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1
Mark Micol: What is the remedy? If we agree with Mr. Buck, where do we go from there? 2
3
David Rooks: Obviously, there is nothing you can do about that plat. People have bought houses and live there 4
now. What he said in his argument and that is what I was really waiting for was that the remedy was looking to 5
the county to make all the recreation improvements that aren’t there in his mind. 6
7
Larry Wright: I never could get that… so all these mistakes so what. What is the end point and I asked him what 8
the end point was. 9
10
David Rooks: All you can do is say that there was or was not an error and that you uphold it or overturn it. At 11
that point, I am not sure what happens next. 12
13
Jeff Schmitt: Let’s go back to the state statute that relates to … 14
15
Larry Wright: How long you can have it? 16
17
Jeff Schmitt: Vesting… the five years. What precedence does that have on any of this? 18
19
David Rooks: I don’t think that has a lot of bearing on this. I think a lot of bearing is there is a statutory vesting 20
that both sides talked about which is if you have a permit issued to you, you essentially have the right to rely on it 21
for a period of time but at some point, a local government is entitled to cut you off if they have a provision doing 22
that. There was no sunset in the ordinance in 1986 on a permit, is that correct? 23
24
David Blankfard: A lot of times these sunsets are imposed on contractors to get them to move on. The 25
contractor was ready to go in 1986. He had to wait until the county was ready. 26
27
David Rooks: Chatham County does not have a local ordinance sunset for SUPs. 28
29
David Blankfard: I think that sunset is for making contractors move. You get a special use permit, use it, build. 30
31
David Rooks: If you wanted to avoid the special use permit is where it comes into play. It was approved in 1986 32
but not issued until 1998. 33
34
Jeff Schmitt: What is the legal document from the court’s perspective? Is it the Special Use Permit? Is it the 35
filing of the plat? The filing of this thing with all the stuff behind it relation to what’s going to be done by the 36
contract? 37
38
David Rooks: If you got into a litigation of the validity of the special use permit, among the things the court would 39
look at is the special use permit itself and the documents it incorporates by reference which is typically a set of 40
plans, and the plats issued in reliance in the special use permit later on. 41
42
Jeff Schmitt: They not filed until 1998. 43
44
Larry Wright: But they were the same as they were… 45
46
Jeff Schmitt: No. We had a different developer at that point in time. What was filed in 1998 I believe was 47
different, streetwise… 48
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1
David Blankfard: They are minor changes that didn’t necessitate a revisiting of the SUP. 2
3
Jeff Schmitt: But are those minor changes enough that it effectively opens up the whole thing from the court’s 4
perspective. 5
6
David Rooks: I think it is long gone, it is too late. 7
8
Larry Wright: Why? 9
10
David Rooks: Passage of time. This plat was approved in 1998. 11
12
David Blankfard: Phase IV was approved in 2008. 13
14
David Rooks: Houses are there and for all intents and purposes, it is moot. 15
16
Jeff Schmitt: That is Larry’s question, if we vote for the applicant, what happens? Will he ask the contractor to 17
buy some more property someplace else? 18
19
David Rooks: I don’t know what remedy he has. 20
21
Karen Barrows: I would like to say that I think Mr. Buck’s situation is, I have a lot of empathy, however, I would 22
not be comfortable saying Robert Davis made mistakes back in 2008. I don’t know if he did or didn’t but the 23
evidence here has not convinced me one way or the other. I would not be comfortable with resending SUPs from 24
years ago. I think it is beyond us. 25
26
Jeff Schmitt: I would agree with Karen. 27
28
Larry Wright: I do too. I have spent days on this. 29
30
Jeff Schmitt: It is laden with inconsistencies. 31
32
Mark Micol: Can we make a motion? 33
34
Larry Wright: You can make a motion but I want to have discussion on it. 35
36
MOTION made by Mark Micol to deny the appeal made by the applicant and it is this body’s belief that the county 37
staff did not err with respect to the approval and execution of the site plan and special use permit. 38
39
David Rooks: The applicant is appealing from the approval of the plat. 40
41
Mark Micol: Not site plan. 42
43
David Rooks: He is appealing from the approval of that particular plat. 44
45
Debra Graham: Your three questions are: Did the development officer err in failing to apply the subdivision 46
ordinance recreation space requirements in effect on March 31, 1998 in the decision to approve the Phase IV 47
Churton Grove plat? 48
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1
Jeff Schmitt: And your answer would be no. 2
3
Mark Micol: Yes. 4
5
Debra Graham: Number 2: Did the development officer approve the Phase IV Churton Grove plat in violation of 6
the active recreation requirements of the subdivision ordinance in effect on May 20, 1986 the date the SUP was 7
approved? 8
9
Several responses of no. 10
11
Debra Graham: Number 3: Did the development officer approve the Phase IV Churton Grove plat in violation of 12
the SUP? 13
14
Several responses of no. 15
16
Larry Wright: We have a motion on the floor. 17
18
MOTION made by Mark Micol to deny the appeal made by the applicant and it is this body’s belief that the county 19
staff did not err with respect to the approval of the Phase IV plat. 20
21
Larry Wright: How do we know he didn’t err? 22
23
Mark Micol: It is our belief… We can have further discussion or bring finding of fact or notes. 24
25
David Blankfard: They applied the standard that was in effect. The one that was pre 1986. 26
27
Larry Wright: I have been on planning board; Jeff and Karen have been on planning board. I have worked on 28
subdivisions. I would like to know that if someone like Mr. Davis signs off on this, is there a sense of consensus 29
among staff and the supervisor and who else, is there a sense of consensus or does Mr. Davis work unilaterally. 30
31
David Rooks: I’m not sure we can answer that, it is almost a public hearing kind of question. 32
33
Karen Barrows: There is some inconsistency. Craig said one thing in his letter and then Robert … 34
35
Mark Micol: You are going over a 15 year period. You can take letters from one day to the next and during 36
negotiations you will get different viewpoints. I don’t put a lot of validity in correspondence over a 15 year period. 37
Can we bring the three questions in to make a motion and answer the questions and have an up and down vote. 38
39
Jeff Schmitt: I was going to suggest that we take your comments and add as addendum to them in addition to 40
this, the following three questions were looked at by the board and supporting the previous paragraph. Putting 41
these three as an addendum and those are the three questions we ask in answering the comments that were 42
made here. I would like to add at the end. This is a very unusual circumstances and it is questionable as to 43
whether or not the board has jurisdiction over this to go forward. 44
45
Larry Wright: I heard what you said and I agree with it. 46
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David Rooks: May I make a suggestion that you treat the 3 questions that I drafted as findings and then your 1
motion as the conclusion based on your findings. 2
3
Larry Wright: Changing this to findings, are we making the decision that is being asked of us? 4
5
David Rooks: Yes. That is the reason I wrote those questions the way I did because those are essentially what 6
he appealed on. 7
8
Mark Micol: We have established a find of fact, the three questions. 9
10
Jeff Schmitt: The Board of Adjustment finds for the following three ….. as a result of these … 11
12
Larry Wright: We have a motion on the floor. Do you want to withdraw your motion or do you want to state it later 13
or is this where we want to put it? Let’s have a friendly amendment. 14
15
Jeff Schmitt: After hearing all the evidence, the Board of Adjustment, in consideration of these three questions, 16
which are … 17
18
Debra Graham: Number 1: Did the development officer err in failing to apply the subdivision ordinance recreation 19
space requirements in effect on March 31, 1998 in the decision to approve the Phase IV Church Grove plat? 20
21
The board votes unanimously NO. 22
23
Debra Graham: Number 2: Did the development officer approve the Phase IV Churton Grove plat in violation of 24
the active recreation requirements of the subdivision ordinance in effect on May 20, 1996, the date the SUP was 25
approved? 26
27
The board votes unanimously NO. 28
29
Debra Graham: Number 3: Did the development officer approve the Phase IV Churton Grove plat in violation of 30
the SUP? 31
32
The board votes unanimously NO. 33
34
MOTION made by Mark Micol to deny the appeal made by the applicant and it is this body’s belief that the county 35
staff did not err with respect to the approval of the Phase IV plat. David Blankfard seconded. 36
37
Karen Barrows: I will vote in favor of it but I must say I am torn. I don’t know if there were errors made. 38
39
Larry Wright: Could you please read that again because I don’t know how I will vote. 40
41
Mark Micol: I will summarize. We deny the appeal made by Mr. Buck and it is this body’s belief that the county 42
staff did not err with respect to the approval of the Phase IV plat. 43
44
Larry Wright: Do you want to withdraw your second so we can discuss this. 45
46
Jeff Schmitt: I would like to discuss this. 47
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David Blankfard: I withdraw my second. 1
2
Larry Wright: Can I hear that again. 3
4
MOTION made by Mark Micol to deny the appeal made by the applicant and it is this body’s belief that the county 5
staff did not err with respect to the approval of the Phase IV plat. 6
7
Jeff Schmitt: You could add at the end of that the SUP signed on May x, 1986 was still in effect notwithstanding 8
the passage of twelve years. 9
10
Mark Micol: That is what I asked earlier, do we need to add supporting detail. I have notes we could add for our 11
decision. 12
13
Larry Wright: My issues are, the county did not err and there is so much to the county I don’t know how I can 14
define county. 15
16
David Rooks: May I help you? The issue before you is whether Mr. Davis erred. 17
18
Larry Wright: We already did that. 19
20
David Rooks: That is the only issue before you is to whether Mr. Davis erred. 21
22
Larry Wright: We have already voted on that in number 1. 23
24
David Blankfard: That is all we were voting on. 25
26
Mark Micol: I meant Mr. Harvey, Mr. Davis or whoever was in charge at the time. This was a huge project so for 27
us to say Mr. Davis, if somebody erred it was more than one person. This was a 15 year project. 28
29
MOTION made by Mark Micol to deny the appeal made by the applicant and it is this body’s belief that the county 30
staff did not err with respect to the approval of the Phase IV plat. David Blankfard seconded. 31
VOTE: Unanimous 32
33
Larry Wright: Weren’t we going to make some sort of statement about jurisdiction? 34
35
David Rooks: I think you have now decided it. 36
37
Mark Micol: That was included in the three questions. 38
39
40
AGENDA ITEM 6: ADJOURNMENT 41
42
MOTION made by Karen Barrows to adjourn. David Blankfard seconded. 43
VOTE: Unanimous 44
45
Meeting was adjourned at approximately 11:00pm. 46