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HomeMy WebLinkAboutBOA agenda 070918PLANNING & INSPECTIONS DEPARTMENT Craig N. Benedict, AICP, Director Current Planning (919) 245-2575 (919) 644-3002 (FAX) www.orangecountync.gov 131 W. Margaret Lane Suite 201 P. O. Box 8181 Hillsborough, NC 27278 AGENDA ORANGE COUNTY BOARD OF ADJUSTMENT 300 West Tryon Street (Whitted Building) Hillsborough, NC 27278 July 9, 2018 6:00 p.m. Board Training Session 7:00 p.m. - Public Hearing Items 6:00 P.M. TRAINING SESSION: 1.CALL TO ORDER 2.INTRODUCTION – PLANNING STAFF AND COUNTY ATTORNEY 3.VIDEO – PROCESSING OF VARIANCE APPLICAITONS 7:00 P.M. – PUBLIC HEARING: 1. CALL TO ORDER 2. CONSIDERATION OF ADDITIONS TO AGENDA 3. APPROVAL OF MINUTES x April 16, 2018 x May 7, 2018 4. PUBLIC CHARGE: The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any time should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending personto leave the meeting until that individual regains personal control. Should decorum fail to be restored, the Chair will recess the meeting until such time that a genuine commitment to 1 this public charge is observed. All electronic devices such as cell phones, pagers, and computers should please be turned off or set to silent/vibrate. The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of local regulations and State law to perform specified functions essential to the County’s planning program. Action(s) taken by the board are based solely on competent, substantial, and material evidence presented during a previously scheduled and advertised public hearing on a specific item. As detailed within Section 2.12.2 of the UDO the Board chair reserves the right to exclude evidence and testimony that is deemed: ‘incompetent, irrelevant, immaterial, or unduly repetitious’ and therefore fails to reasonably address the issues before the Board of Adjustment. Whileit should be noted there is no time limit on the presentation of evidence, the Chair asks that the presentation of evidence be consistent with established policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties. No. Page(s) Agenda Item 5. A-4-18– PUBLIC HEARING to review a Variance application from Section 3.7 Economic Development Districts – Economic Development Eno Low Intensity (EDE-1) general use zoning district for a parcel of property located at 4916 Old Hillsborough Road (PIN: 0803-30-4715) within the Eno Township. In accordance with the provisions of Section 2.10 of the Orange County Unified Development Ordinance (UDO) the applicants, Stone and Church Investments LLC, have applied for a VARIANCE from side yard setback standards of the EDE-1 general use zoning district. Specifically the applicant is requesting a 15 ft. reduction in the 25 ft. required side yard setback for a parcel of property at 4916 Old Hillsborough Road. 6. A-3-18– Receipt of Subpoenaed documentation for a parcel of property located at the intersection of Morrow Mill and Millikan Roads (PIN: 9729-50- 7168). In accordance with action taken at its May 7, 2018 meeting, the Board of Adjustment shall receive subpoenaed materialassociated with the review of an appeal application concerning the status of a structure located on a parcel of property, identified utilizing Orange County Parcel Identification Number (PIN) 9729-50-7168, owned by Southeast Property Group LLC (a.k.a. Wild Flora Farm) care off Ms. Kara Brewer. The Board of Adjustment is scheduled to receive subpoenaed materials. The Board of Adjustment is scheduled to continue the hearing at its August 13, 2018 regular meeting 7. ADJOURNMENT IF UNABLE TO ATTEND THIS MEETING, PLEASE CALL THE PLANNING DEPARTMENT (NUMBERS LISTED BELOW – PRESS 1 PLUS EXTENSION 2575 OR 2585). STAFF CAN THEN DETERMINE IF A QUORUM WILL BE PRESENT FOR THE MEETING. HILLSBOROUGH – (919) 732-8181 ; MEBANE – (919) 227-2031 2 MINUTES1 BOARD OF ADJUSTMENT2 April 16, 20183 REGULAR MEETING4 5 MEMBERS PRESENT:Samantha Cabe, Chair6 Matt Hughes7 Susan Halkiotis8 Randy Herman(Alternate)9 Holly Safi (Alternate)10 11 MEMBERS ABSENT:Karen Barrows, Vice Chair 12 Barry Katz13 14 STAFFPRESENT:Michael Harvey, Current Planning Supervisor15 Patrick Mallett, Planner II16 James Bryan, Staff Attorney17 Elaina Cheek, Board Secretary18 19 20 AGENDA ITEM 1: CALL TO ORDER21 22 Samantha Cabe called the meeting to order at 7:30 p.m.23 24 25 AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA26 27 There was none.28 29 30 AGENDA ITEM 3: APPROVAL OF MINUTES – June 12, 2017, and Jan. 8, 201831 32 MOTION made by Susan Halkiotisto approve the June 12, 2017, minutes as submitted. Matt Hughes 33 seconded.34 VOTE: Unanimous35 36 Samantha Cabe: Does any member have any comment or discussion about the Jan. 8, 2018, minutes? 37 38 Susan Halkiotis: On Page 20,Line 537, I wasn’t sure what the motion was. 39 40 Michael Harvey:It should read motion by Karen Barrows, seconded by Susan Halkiotis. The motion was to 41 properly reflect who was the legal owner of the property and who the applicant was.42 43 Randy Herman: The motion was to strike the address that she thought was inaccurate. 44 45 Michael Harvey: Yes, we can correct that. The motion can be to approve the minutes with the correction on 46 Page 20, Line 537. 47 48 3 MOTION made by Holly Safi to approve the Jan. 8, 2018, minutes with the correction. Randy Herman 49 seconded.50 VOTE: Unanimous51 52 53 AGENDA ITEM 4: PUBLIC CHARGE 54 55 Matt Hughesread the public charge.56 57 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to 58 conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens.At any 59 time should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the 60 offending person to leave the meeting until that individual regains personal control. Should decorum fail to be 61 restored, the Chair will recess the meeting until such time that a genuine commitment to this public charge is 62 observed.All electronic devices such as cell phones, pagers, and computers should please be turned off or 63 set to silent/vibrate.64 65 The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions 66 of local regulations and State law to perform specified functions essential to the County’s planning program. 67 Action(s) taken by the board are based solely on competent, substantial, and material evidence presented 68 during a previouslyscheduled and advertised public hearing on a specific item.As detailed within Section 69 2.12.2 of the UDO the Board chair reserves the right to exclude evidence and testimony that is deemed: 70 ‘incompetent, irrelevant, immaterial, or unduly repetitious’ andtherefore fails to reasonably address the issues 71 before the Board of Adjustment.While it should be noted there is no time limit on the presentation of 72 evidence, the Chair asks that the presentation of evidence be consistent with established policies, rules of 73 procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties.74 75 76 AGENDA ITEM 5: CASE A-2-18– Public Hearing to review a Class B Special 77 Use Permit applicationconcerning the expansionof an existing child care 78 facility at 200 David Road, Hillsborough, NC 27278(PIN9862-10-1791 and 79 9748-99-7320). The property, located within the Chapel Hill Township of 80 Orange County, is owned by the Hillsborough United Church of Christ. 81 82 Samantha Cabe:At this time, we willproceed with a public hearing to review a Class B Special Use 83 Permit application concerning the expansion of an existing child care facility at 200 David Road, 84 Hillsborough, NC 27278.85 86 Patrick Mallett:Good evening. Patrick Mallett, current planning. We’ll need to grab that book and get 87 everyone sworn in. 88 89 Samantha Cabe:At this time, weare going to swearin every person who wantsto testifyin this hearing.90 Because this board bases its decisions on relevant and competent evidence, we need to have all testimony 91 under oath. So, any person who wants to be heard, come and be sworninat this time. 92 93 Michael Harvey swore in those who wished to testify.94 95 Michael Harvey: When you come to testify, state your name, purpose of speaking (applicant, expert) and 96 thatyou’ve been sworn in. 97 98 4 Patrick Mallet: You’ll see in your packets, starting on Page 38, the normal abstract that is prepared for a 99 case like this, Class B Special Use Permit for a childcare facility. I’m going to go through these briefly and 100 then I’ve got some additional items to hand out to go with the packet. Starting on Page46, you’ve got your 101 site assessment, which gives you an overview of the property. Starting on Page 47, you’ve got your 102 application package. Attachment 3 on Page 62 has notification materials. Staff comments start with 103 Attachment 4 on Page 70.And then we have our Findings of Fact, prepared for each Special Use Permit 104 Class B, starting on Page 80. And the existing Special Use Permit on Page 89. The church was opened in 105 the 90s. The daycare facility in 2005…when was the original daycare opened?106 107 Dan Rockaway: This the third daycare.The original daycare opened in2000.108 109 Patrick Mallett: There has been a daycare in operation here for quite some time. The current operator is 110 Sounds and Colors and they are essentially seeking to expandthe number of children from 55 to80. Part 111 of the expansion is the building and the existing play area.112 113 Patrick Mallett: At the advice of the attorneys office,staff amended the certification, posted the sign, and 114 mailed out the mailings as required by the UDO.This case was cancelled due to snow. This has the new 115 dates. I’ll pass this out to amend thepacket. I also have a page that amendsthe Findings of Fact with the 116 revised dates. And a copyof the notice of the public hearing. I also have enlarged copies of the basic site 117 layout. It’s the same materials as in the packet, just larger. This handout is a basic overview with some of 118 the interior. 119 120 Patrick Mallett: A brief overview. United Church of Christ is located at the intersection of Davis Roadand 121 Old N.C. 86.It’s been there for quite some time. It’s a little hard to see at that intersection because it’s 122 tucked into the woods. The building to the left is the actual church. The childcarefacility is the building to 123 the right. This is Old N.C. 86. If you were traveling south toward Chapel Hill,justto the northis the Settler’s 124 Point development recently approved and the I-40 interchange. The facility is zoned rural buffer. It’s within 125 the Lower Eno unprotectedwatershed and Jordan Lake unprotected watershed. The blue line in the middle 126 signifies the break in the watershed. The church and the daycare has a state-approved septic system. It’s a 127 little bit differentthan your average septic system becauseit’s a sand-filtered lagoon. Thisdarker area at 128 the bottom of the site, I believe, is the new portion of the septic system.The application has been reviewed, 129 as it always is, not just by planning staff but by Environmental Health, the sheriff’s office, to document 130 support of Findings of Fact. 131 132 Patrick Mallett: I’m just going to skip over to the site plan. The area in orange is the expansion to that133 existing building. It’s a 1,200-square-footexpansion to the existing building. And thenthey are expanding134 the play area, the green area alongside it. They will utilize the existing parking. They will improve the 135 handicap parking, located outside thisentranceway. To a large extent, they are going to use the80-plus136 spaces of the church. The childcare facilityoperates during the weekdays. We consider it a compatible use 137 in that the church uses iton the weekends. This is putting it to full use during the weekdays. 138 139 Patrick Mallett: This is themore detailed siteplan, showing you how they are going to reworkthe parking 140 and define it, how they are going to get their ADAcompliance issues dealt within terms of the building code 141 and the expansion area, which is essentially going to be classrooms, administrative space, and 142 multipurpose rooms, and the required playyard andfencing. Here are some schematics of the 143 improvementsto the interior. More details on the interior. These are views from the south, east, you can 144 see this is theexpanded area, the existing building, north, and west. And west would be facing toward the 145 existing church. 146 147 5 Patrick Mallett: It’s been reviewed by all the various departments and the childcare facility is already 148 approved throughthe state system. They already have their permit and every indication that they will be 149 able to supportthe expansion. The state has reviewed their septic permits. There is indication that their 150 gallons per day works out mathematically to support their request. 151 152 Patrick Mallett: The applicant has agreed to pay attention to any land disturbance. This isnotabove the 153 threshold that would require a stormwater or erosion control permit. To a large extent, they are using the 154 existing building and existing parking so there is very little land disturbance.Any area cleared out for the 155 play area, in terms of significanttrees removed, would be replaced to be sure the landscape ordinance is 156 met. I think with that I’ll stop and see if you have any questions. Or we can enter the testimony into the 157 record. 158 159 Randy Herman:I have a question. Is there not an outdoor play area at the existing facility?160 161 Patrick Mallett: I believe there is. They are required to have one. 162 163 Dan Rockaway: Mywife and I own the school, the business. I’m a co-applicant with thechurch. You have 164 to have 100 square feetper child for outdoor playground area. Right now we have three playgrounds, one 165 off of each classroom. For simplicity and to meet regulations, we wanted to add one off of this building. 166 167 Patrick Mallett: We’ll go to the applicant.168 169 Michael Harvey: Before we go to applicant testimony, I’d like to request that the board incorporatestaff’s170 abstract, including all attachments, as corrected this evening with replacement pages 62, 63, and 64, with 171 updated notification of this meeting,the notices toall property ownerswithin 1,000 feet,a copy of the 172 notice, certification from Mr. Mallett that the sign was posted, certification that the legal ad wasproperly 173 placed in two papers, in this instance,of local circulation, and the revised Page 81 providing detail as part 174 of deliberation. Itwould be nice to have a motion to enter staff’s abstract packet as amended into the 175 record.176 177 Samantha Cabe: Do I haveamotion to incorporatethe abstract packet as amended with the supplemental 178 materials tonight?179 180 MOTION made by Randy Herman to incorporate the abstract packet as amended with the supplemental 181 materials. Matt Hughes seconded.182 VOTE: Unanimous183 184 Dan Rockaway: I just want to give you a little history about us. My wife issitting to your right,Martha 185 Rockaway. We opened this school 7 yearsago. Before us, The Little School was there. And before them, 186 Pinewoods Montessori was here. It seems that the schools that have been here have been successful. 187 There is definitely a demand for this need. We started this business 7 years ago. I guess our daughter who 188 is 14 now, inspired in us a passion for early childhood education. My wife isa teacherfrom Colombia,189 taught Spanish and French in Colombia, taught Spanish here. When our daughter was born, she read 190 every book she could read on early childhoodeducation.AtthetimeI was in school for an MBA and said 191 let’s put a business plan together and see how this goes. While watching my daughter learn Spanish, 192 English and Mandarin (when she was 2), I saw how I was struggling in my thirties, trying to learn Spanish. 193 Our school is Spanish emersion, by the way. We have been there for 7 years. That school is licensed for 58 194 children. We are asking to raise the enrollment cap to 80. About three and a half years ago, we opened up 195 a school inCary licensed for 109. And then eight months ago we opened up one in the west side of Cary,196 6 licensedfor 145. I think our schools are somewhat successful because it’s Reggio inspired. It’s Spanish 197 emersion. It’s play-based. It’s project-based. It’s an emergent curriculum, so we don’t just say it’s spring, 198 let’s talk about flowers. We seewhat the children are interested in. We also focus on our outdoorlearning199 environment.By law, we’re required to be outside for at least one hour a day. We’re outside for two to three 200 hours a day. In Reggio inspiration, food is important. So we have a can-free kitchen. We have been pretty 201 successful in Hillsborough. We turn away around 50 families a year. Those are the ones that come for202 tours. Others, when we say we don’t have space, don’t come for a tour. With that said, we had this 203 challenge of expanding this school from a state perspective because of the septic system. The requirement 204 is 25 gallons per day per child. We sent the state three years of data and they approved it for 15 gallons per 205 day per child. When that wasapproved,it opened up that we could servemore children in Hillsborough. I 206 do want to thank you all. With all the emails trying to get on this calendar today,I feel like we know you.207 208 Jay Kennett: I’m Jay Kennett, pastor of Hillsborough United Church of Christ. As Dan said, they have been 209 there 7 years. As you heard previously, this is our third daycare to be there. Every other daycare left 210 because the spacegot too smallfor them. So, Dan and I began discussing this a fewyears ago and the 211 church felt it could offer to make the space larger if we could work out the water issue. It feels like a good 212 opportunity for us to have a long-term tenantand something that is good for the community as well. 213 214 Michael Harvey: Mr. Kennett, can you statefor the record whether or not you have been sworn. 215 216 Jay Kennett: I have been sworn. 217 218 Dan Rockaway: I have been sworn, too. 219 220 Patrick Mallett: Attachment 5is the Findings of Fact. These are the elements you go through page by page, 221 section by section, then go throughthe specific Findings of Fact that start later in the packet. Findings are 222 set out for a Class B Special Use Permit in the ordinance. Turn to Page 81, you have the application 223 components. This articulates and ticks through,where applicable, staff saying yes they have met the 224 burden. All those items in green. The notifications requirements, the date has changed because of the 225 snow date. Then you have your specific standards on Page 83. Standards for a childcare facility, which are 226 very specific in the UDO, on Page 84. Then the three items that you would go through motion by motion.227 228 Patrick Mallett: On Page 87, we have our recommendation. With that, it has several conditions of approval.229 If you choose to approve the Special Use Permit, we ask you to consider adding in the conditions itemized 230 1 through 5 on Page 87and 6 and 7 on Page 88, if you are so inclined. 231 232 Patrick Mallett: Most of the conditions of approval are fairly standard for this type of use. There is 233 acknowledgement of the additional itemsand permitsthat have to occur. This is the first step, the opening 234 of the gate, allowing the expansion. The next step would be a site plan approved with zoning compliance by 235 all the same departments. Then a building permit’s approved. And document for the state theexpanded236 number of children allowed and the septic system. One last thing is they would be working with NCDOT to 237 reviewthe drivewaypermits to make sure it is safe. There is one driveway that is close to the intersection of 238 Davis Roadand Old 86.239 240 Samantha Cabe: Does the board have any questions for Mr. Mallett or the applicants? 241 242 Susan Halkiotis. I don’t have a question. The application was well put together. It was very clear and I 243 appreciate the comments. I do have a comment about the letter that was sent out April 10 by Mr. Kennett. 244 When I read that, I thought if only everybody would approach a project with willingness to let people know 245 7 what’s going on and to welcomecomment, I wonder how manycontentious cases – one particular 246 contentious case – that could be avoided.247 248 Jay Kennett: We want to be a good neighbor to our neighbors. As soon as we started to talk about it, that249 was one of the first components, how do we welcomethe neighborhood. We invited people tocome see 250 the space. Although we didn’t havea lot of people come, we did have a few people call me on the phone. It 251 was good to talk with them and everything was really positive. 252 253 Susan Halkiotis: I found that to be refreshing. 254 255 Patrick Mallett: Because of that effort, we didn’t have anyone at the information meeting or any calls. They 256 solved that information before the process began. 257 258 Randy Herman: You don’t anticipate issues of parking or people backing up on Davis Road?259 260 Dan Rockaway:They pull in andit’s a long driveway in front of the church. No one backs out on Davis261 Road. They turn around. Because we’re adding 22 children, it’s probably 16ish cars because there are 262 siblings.If there was ever an issue, we can always expand drop-off times. 263 264 Jay Kennett:Sounds and Colors has a little more spread out drop-off and pick-up times so there is not 265 nearly as much traffic as the other daycare that was there where everyone was dropping off and picking up 266 at the same time. There is definitely a time between5 and 6 p.m. when most people are picking up, but it’s 267 more spread out on the other end. We have two driveways. Previously, the other daycare came in one 268 driveway and went out the other. And that could be an option. 269 270 PatrickMallett: (showed on site planoverview)This one is more of a horseshoe through the site that goes 271 past the church. You could theoretically drop a kid off here or park and walk over. Also, there is an effort to 272 redefine the parking in here (indicated on site plan overview). Not to gettoo much into the technical aspects273 of that, but it’s difficult to meetADA compliance because of the pitch of the sidewalk, the route from the 274 vehicle to the doorway and through the doorway.I think they’ve solved that element, at least in my 275 conversations with James Baxter with inspections.276 277 Matt Hughes:Am I reading this chart right that you are also adding spacesup here? 278 279 Jay Kennett: It’s just a little bitmore defined than theyare right now. The spaces are already down there.280 281 Patrick Mallett: They will be marked. Right now it’s an undefined space.282 283 Dan Rockaway: Everyone pulls straight down at the bottom. Everynow and then we’ll have a visitor who 284 pulls in sideways.That’s probably twice a year. 285 286 Samantha Cabe: Is there any other person who wishes to give testimony or to be heard?Any other 287 witnesses? (There were none.) Is this the point where we close the public hearing? 288 289 Michael Harvey: Yes. You can have a motion to close the public hearing and I’ll reiterate that before you 290 enter your deliberations and close the public hearing, obviously staff and the applicant can’t answer any 291 questions. The attorney’s office can provide you direction as it relates to interpretation of the law and 292 implementation of the ordinance. And while Patrick Mallett hasalready coveredthis, I am going to make the293 explicit statement for the record that staff has received no documentation, evidence, or any testimony from 294 8 anybody indicating that the applicant has not met their burden as defined in the ordinance with respect to 295 specific criteria for establishing a daycare or the general findings of fact in Section5.3.2A.296 297 Matt Hughes: I do have one question. This is my first and last case wherethis occurred, but is the applicant 298 also required to adhere to the conditions imposed by the Special Use Permit in July 2015? 299 300 Michael Harvey and Patrick Mallett: Yes. 301 302 Matt Hughes: So we don’t need to touch on existing vegetation being maintained or anything else. Those 303 conditions are still applicable. 304 305 Michael Harvey: Those conditions are still applicable. All you are approving, as Mr. Mallett has pointed out 306 and the abstract has pointed out, is a modification to allow that expansion to happen. All those original 307 conditions are still applicable.308 309 Samantha Cabe: Does anyone have anyquestions fortheapplicant or staff? Do I have a motion to close 310 the public hearing and begin deliberation?311 312 MOTION made by Matt Hughes to close the public hearing. Susan Halkiotis seconded.313 VOTE: Unanimous314 315 Samantha Cabe: At this time, we will begin going through the abstract and the required findings, one 316 section at a time. With regard to the application component, do I have a motion that we adopt staff’s 317 recommendations on that section on Page 81 (it’s the green section)? 318 319 9 320 321 MOTION made by Susan Halkiotis to adopt staff’s recommendationwith regard to application components 322 on Page 81, the green section. Randy Herman seconded.323 VOTE: Unanimous324 325 Samantha Cabe: With regard to notification requirements, which are stated on the bottom of Page 81 and 326 carry over to Page 82, in the orange or pink section. Do I have a motion to adopt staff’s findings with regard 327 to notification requirements? 328 329 330331 332 MOTION made by Randy Herman moved to adopt the notification requirements on the bottom of Page 81 333 and carrying overto Page 82, the orange or pink section. Susan Halkiotis seconded.334 VOTE: Unanimous335 336 Samantha Cabe: On Page 83, with regard to specific standards showing in pink with regard to waste 337 disposal, safety and vehicle access. Do I have a motion regarding staff’s findings for these specific 338 standards? 339 340 10 341 MOTION made by Randy Herman moved to adopt those specific standards. Holly Safi seconded.342 VOTE: Unanimous343 344 Samantha Cabe: Page 84, with regard to specific standards for a child care facility including the site plan345 and standards for evaluation, do I have a motion to approve staff recommendations with regard to these346 specific standards on Page 84? 347 348349 MOTION made by Holly Safi to adopt those specific standards. Susan Halkiotis seconded.350 VOTE: Unanimous351 352 Samantha Cabe:On Page 85 and carrying over to Page 86, these are our specific findings that while the 353 staff has maderecommendations, wemust make findings ourselves.The first being that building will or will 354 not maintain or promote the public health, safety and general welfare if located where proposed and 355 developed and operated according to the plan as submitted. And again, this is the expansion of the current 356 building and subject to the previously issued Special Use Permit. Does anyone have a motion? 357 358359 11 360 MOTION made by Susan Halkiotis that the building will maintain or promote public health, safety and 361 general welfare. Randy Herman seconded.362 VOTE: Unanimous363 364 Samantha Cabe: With regard to Finding 2, we must find thateitherthe use will or will not maintain or 365 enhance the value of contiguousproperty. Do I have a motion that based on the application submitted, that 366 the proposed use will maintain or enhance the value of contiguous property?367 368 369 Randy Herman: Can I make a comment on this?370 371 Samantha Cabe: You may.372 373 Randy Herman: The letter that was in there from the commercial realtor, it seemed to be a summary and 374 not supported. But I think the application was sufficient and there was not testimony against the idea that it 375 will maintain or enhance the value of contiguous property. 376 377 MOTION made by Randy Herman that the use will enhance or maintain the value of contiguous property. 378 Holly Safi seconded.379 VOTE: Unanimous380 381 Samantha Cabe: Finally, the last finding. This board must determine that the location and the charcterof 382 the use, if developed according to the plan submitted, will or will not be in harmony with the area in which it 383 is to be located and the use is in compliance with the plan for the physical development of the County as 384 embodied in these regulations. Do I have a motion that the location and character of the use, if developed 385 according to the plan submitted, will be in harmony with the area?386 387 12 388389 MOTION made by Randy Herman that the location and character of usewill be in harmony with the areain 390 which it is to be located. Susan Halkiotis seconded.391 VOTE: Unanimous392 393 James Bryan: Two more things. The conditions and approve the permit. 394 395 RECOMMENDATION: Staff has reviewed the application, the site plan, and all supporting documentation and has found that the applicant complies with the application requirements, notice requirements, submittal requirements for camp/retreat centers, specific standards of evaluation for camp/retreat centers, and required regulations as outlined within the UDO Staff has not received any evidence indicating the project does not comply with the UDO, including the provisions of Section 5.3.2 (A) (2) inclusive, establishing the grounds for making a negative finding on the general standards as detailed herein. These standards include maintaining or promoting the public health, safety, and general welfare, maintaining or enhancing the value of contiguous property, the use is 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. The Board could make an affirmative finding on this application provided the Board of Adjustment finds in the affirmative on the specificstandards of evaluationand general standardsas detailed herein,and no evidence is entered into the record demonstrating the applicant has either: a.Failed to meet their burden of proof that the project complies with the specific development standards for a telecommunication facility, or b.Fails to comply with the general standards detailed within Section 5.3.2 (A) (2) of the UDO. In the event that the Board makes an affirmative finding, and issues the permit, staff recommends the attachment of the following conditions: 13 The Board voted unanimously to issue the requested Special Use Permit with the 396 imposition of the following condition(s):397 1.In accordance with the provision(s) of Section(s) 5.2.1 Table of Permitted Uses398 and 5.8.2 Child Care facility of the UDO, activities allowed to occur on the 399 property shall be in accordance with the submitted application package and 400 narrative as approved by the Orange County Board of Adjustment on March 12, 401 2018.402 2.In accordance with the provision(s) Section5.8.2 Child Care Facility,and403 consistent with the submitted application package, site plan, and narrative as 404 approved by the Orange County Board of Adjustment on March 12, 2018, all 405 existing and required buffers per Section 6.8 shall be maintained and/or 406 enhanced. Any landscape materials removed shall be replaced with comparable 407 materials. Existing vegetation shall be preserved within this buffer in perpetuity 408 except for the removal ofvegetation necessary to allow for the installation of 409 driveways, public and/or private utilities, ponds, erosion control and stormwater 410 measures and/or devices.411 3.For general welfare as required in 5.3.2(B)(2) and to ensure the proposed use is 412 in harmony with the general area as required in Section 5.3.2 (A) (2) (c) of the 413 UDO, no additional freestanding lighting shall be permitted for the Child Care 414 Facility. 415 4.For public safety as required in 5.3.2(B)(2) of the UDO, the Orange County Fire 416 Marshal shall review and approve the final site plan, including construction of any 417 and all required fire suppression ponds/facilities, prior to the commencement of418 earth disturbing activities.419 5.Per Section 2.5 of the UDO the applicant shall obtain all necessary and 420 applicable permitsfrom the County associated with the development of the 421 property consistent with the approved Special Use Permit,including but not 422 limited to: 423 a.Building/ Solid Waste ManagementPermit, 424 b.Environmental Health Permit,425 c. Erosion Control Management Permit, 426 d.Stormwater Permit,and427 e.Zoning Compliance Permit.428 6.In accordance with the provisions of Section 2.7.12 (C) of the UDO, if any 429 condition of this Special Use Permit shall be held invalid or void, then this Special 430 Use Permit shall be void in its entirety and of no effect.431 7.In accordance with the provisions of Section 2.7.12 (D) of the UDO, the Special 432 Use Permit will automatically expire within 12months from the date of approval if 433 the use has not commenced or construction has not commenced or proceeded 434 unless a timely application for extension of this time limit is approved by the 435 Board of Adjustment. 436 437 MOTION made by Matt Hughesto take staff’s recommendations regarding the conditions regarding the 438 applicant’s Special Use Permit with two changes: staff’s information said as approved on March 12 and that 439 14 we obviously update that to April 16 in the first paragraph as well asthe third line in the second paragraph. 440 Susan Halkiotis seconded.441 VOTE: Unanimous442 443 Samantha Cabe: And finally, do I have a motion to approve or deny the application for the Special Use 444 Permit modification?445 446 MOTION made by Holly Safi to approve the application for the Special Use Permit modification. Randy 447 Herman seconded.448 VOTE: Unanimous449 450 Samantha Cabe: Is there anyfurther business of the board? Do I have a motion of to adjourn? 451 452 Micahel Harvey:We have obviously a hearing pending. Not sure of dateyet. On appeal of The Barn at453 Chapel Hill. Mr. Hughes will not be joining us.ChairCabe has to recuse herself. And Safi has to recuse 454 herself as well. We are suggesting that hearing begin at 7 pm. We had selected May 7, but we hear that 455 may not be possible for the applicant as well asguaranteeing wehave a quorum. If board members are 456 amenable, we will hold that meeting at 7 p.m. It will be at the Whitted building.457 458 Samantha Cabe: Prior to the adjournment, would you like this board to take a vote on the time and location 459 of the meeting. 460 461 Michael Harvey: Yes. With date determined by those who will be in attendance. 462 463 MOTION made by Randy Herman to move the next meeting to 7 p.m. at the Whitted building on a date to 464 be determined and voted upon by email.Susan Halkiotis seconded.465 VOTE: Unanimous466 467 468 Michael Harvey: Also to remind those board members who will be at that meeting. The hearing is likely to 469 be filmed or videotaped. We are meeting with Board of Commissioners the modifications to the operations 470 of the Board of Adjustment as it relates to the documentation of your future hearings, whether it be posting 471 meeting audio, live streaming video or videotaping the hearing and then posting to the website. 472 473 Samantha Cabe: What is thetime of that meeting tomorrow?474 475 Michael Harvey: It’s theregular BOC meeting at 7 p.m. atthe Southern HumanServices building in Chapel 476 Hill.477 478 Susan Halkiotis: For the next meeting, it will be Randy Herman, me, Karen Barrows and Mr. Katz? 479 480 Michael Harvey: We are going to be informing the board, and theboard chair knows, that Mr. Hugheshas 481 decided to leave us, regrettably. But we wish him well on his new venture with the Town of Hillsborough. 482 And we will be asking for Mr. Herman, senior alternate, to be moved up,andanother alternate to be 483 appointed and Safi moved up to senior alternate. Our goal is to have five members. 484 485 Randy Herman: That would be difficult to arrange by the time of the next meeting. 486 487 Samantha Cabe: Any further discussion?488 489 15 490 AGENDA ITEM 5: ADJOURNMENT491 492 MOTION by Matt Hughes to adjournat 8:20 p.m. Seconded byRandy Herman.493 494 VOTE:UNANIMOUS495 496 497 _________________________________________498 NAME OF CHAIR,CHAIR499 16 MINUTES1 BOARD OF ADJUSTMENT2 May 7, 20183 REGULAR MEETING4 5 MEMBERS PRESENT:Karen Barrows, Vice Chair 6 Barry Katz7 Susan Halkiotis8 Randy Herman(Alternate)9 10 11 MEMBERS ABSENT:Samantha Cabe, Chair12 Holly Safi (Alternate)13 14 15 STAFFPRESENT:Michael Harvey, Current Planning Supervisor16 Patrick Mallett, Planner II17 James Bryan, Staff Attorney18 David Hunt, Deputy Clerk/Information Specialist19 20 21 AGENDA ITEM 1: CALL TO ORDER22 23 Karen Barrowscalled the meeting to order at 7p.m.24 25 26 AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA27 28 Karen Barrows asked if there are considerations of additions to the agenda.29 30 Michael Harvey, Current Planning Supervisor, said that the April 16, 2018, meeting minutes would not be 31 voted on this evening. He wanted tonote that the absences of Karen Barrows and Barry Katz at that 32 meeting had been excused prior to the meeting. 33 34 He reminded board members to remember that the microphones are active at all times.35 36 37 AGENDA ITEM 3: APPROVAL OF MINUTES – April 16,201838 39 As noted by Michael Harvey, the board was not asked to take a vote to approve the minutes this evening.40 41 AGENDA ITEM 4: PUBLIC CHARGE 42 43 Susan Halkiotisread the public charge.44 45 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to 46 conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens.At any 47 time should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the 48 17 offendingperson to leave the meeting until that individual regains personal control. Should decorum fail to be 49 restored, the Chair will recess the meeting until such time that a genuine commitment to this public charge is 50 observed.All electronic devices such as cell phones, pagers, and computers should please be turned off or 51 set to silent/vibrate.52 53 The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions 54 of local regulations and State law to perform specified functions essential to the County’s planning program. 55 Action(s) taken by the board are based solely on competent, substantial, and material evidence presented 56 during a previously scheduled and advertised public hearing on a specific item.As detailed within Section 57 2.12.2 of the UDO the Board chair reserves the right to exclude evidence and testimony that is deemed: 58 ‘incompetent, irrelevant, immaterial, or unduly repetitious’ and therefore fails to reasonably address the issues 59 before the Board of Adjustment.While it should be noted there is no time limit on the presentation of 60 evidence, the Chair asks that the presentation of evidence be consistent with established policies, rules of 61 procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties.62 63 64 AGENDA ITEM 5: CASE A-3-18– Public Hearing to begin reviewing an 65 application appealing the final determination of the Planning Director, as 66 articulated in an October 13, 2017, letter, concerning a parcel of property 67 locatedat the intersection of Morrow Mill and Millikan Roads (PIN: 9729-50-68 7168) owned/operated by Southeast Property Group LLC (a.k.a. Wild Flora 69 Farm) care of Ms. Kara Brewer. 70 71 Review of this item at the May 7, 2018, meeting shall be limited to the Board 72 reviewing/acting on a request from the applicant to issue subpoenas 73 compelling the submittal of information deemed essential to the proceeding. 74 75 Karen Barrows asked whether there was anyonewho wishedto speak who neededto be sworn in.76 77 Michael Harvey said two attorneyswould be presenting arguments this eveningconcerning the issuance of 78 subpoenas. There would be no need to swear in witnesses unless either attorney wished to call one for 79 testimony.80 81 Michael Harvey said this is a convening of a hearing to begin reviewing anappeal application concerning 82 the October 13, 2017, determination made bythe Planning Director. He noted that in the abstract the 83 attorneysfor the applicants as well as the impactedproperty owners have filed a joint request that is 84 contained in Attachment 2 beginning onPage 62 of the agenda packet that the board first address the 85 denial of the subpoena request bythevice chair. That is the sole discussionpointfor this evening. Both 86 attorneys have requested that after the Board of Adjustment has made adecision on the subpoenasthat 87 action onthe appeal itself be delayeduntil a future meeting. 88 89 Barry Katz asked for clarificationthat the Board of Adjustmentwill hear this again. Michael Harvey said yes,90 the Board of Adjustment will hear the merits of the appeal at a future meeting. 91 92 Karen Barrows stated that the reasonshe had decided not to sign the subpoenas was thatBarry Katz and 93 Susan Halkiotis have heard quite a bit of testimonyabout this issue. She knew if she refused, it would 94 come before this boardand her fellow board memberswould be able to give input as well.95 96 Michael Harvey summarized the abstract: Attachment 1, pages 3-65, is the appeal application and 97 subpoenas request. Attachment 2, beginning on Page 66, is the joint correspondenceconcerning review of 98 18 the subpoenas request.Beginning on Page 70 isthe excerpt of the session law. The background of this is 99 as follows andis articulated in the abstract:On July 12, Session Law 2017-108 became effective, which 100 established the use of structures on a bona fide farm. Orange Countyreceived a request on October12 101 from Andy Petesch, representing Barn of Chapel Hill/Wild Flora Farm for adetermination from the county 102 onwhether the property met the requirements of the sessions lawand could conduct agritourism activities.103 This requestinvolved thestructure located on the Orange County parcel identified as PIN: 9729-50-7168 104 owned/operated by Southeast Property Group LLC (a.k.a. Wild Flora Farm), and is commonly referred to 105 as theBarn of Chapel Hill. The request was reviewed with John Roberts of the county attorney’s office, and106 after review of Andy Petesch’s request, staff made adetermination that the structure located on this 107 property is classified as a bona fide farm, pursuant to the provisions in General Statutes 153A-340(b)(2)a.It108 is not subject to land use regulationsas embodied within the Orange County Unified Development 109 Ordinance. Michael Harvey noted that LeAnn Brown has attached a copy of the Orange Countyletter, 110 within Attachment 1, which is the appeal application. As part of the submittal, LeAnnBrown, who 111 representsseveral adjacent property owners, had requested thechair, under his or her discretion as part of 112 local land use regulations and state statute,to issue subpoenas forrequestedinformation. That request 113 has been denied. Per request of LeAnnBrown, the full board has been askedto review that denial and 114 determine whether or not the subpoenas should be issued. 115 Michael Harveyreminded the board that attorneys representing each side, LeAnn Brown and Andy 116 Petesch, have requested that the purposeof the meeting is to review the subpoena request only. The 117 meeting isopen to the public but testimony is limited to the parties that have standing. The decision to 118 issue or not issue the subpoenas is ultimately appealable to Orange County Superior Court within 30 days. 119 120 Michael Harvey then requested that the agenda packet be entered into the record. 121 122 MOTION by Barry Katz to enter the agenda packet into the record.Seconded by Randy Herman.123 124 VOTE:UNANIMOUS125 126 Karen Barrows said the board would give each attorney 10 minutes to address the board. 127 128 LeAnn Nease Brown addressed the board. She asked that the board find that the parties she represents 129 have standing as the board has found previously that those parties have standing. She said there is a 130 procedure in the Board of Adjustmentstatute that is designed to add a means by which information that 131 may be relevant to a hearing can be obtained, and that is a subpoena process. Subpoenas, as a general 132 principle, are a means by which documents or other informationare brought before a tribunal. Admissibility 133 of that information is decided in the context of thehearing. Subpoena is the means by which the documents 134 can be obtained. The issuanceof subpoenasis generally a ministerial act. She said there are case laws in 135 North Carolina to which she could refer but quotedBone v. Broadfor the record. She continued, stating that 136 the word relevant in the statue is informed by how the word relevant is applied in the rules of evidence. The 137 Orange County Board of Adjustment applies relaxed rules of evidencein its hearings.She noted that the 138 North Carolina General Statues §1-401defines relevant evidenceas having any tendency to make the 139 existence of any fact that is of consequence to the determination of an action more probable or less 140 probable than it would be without the evidence. The comments to note 401 state that dealing with 141 probabilityin the language of the rule hasadded the virtueof avoiding confusion between questions of 142 admissibility and questions of sufficiency of the evidence. It has also subsumed in it the concept of 143 materiality. 144 145 19 LeAnn Brown continued, stating that N.C.G.S. §160A-388(g),which is a statue that governs the Board of 146 Adjustment, is quoted in pertinent part on Page 52 of the agenda packet in herletter to Chair Samantha 147 Cabe seeking subpoenas on November 7, 2017.What N.C.G.S. §160A-388(g) allows is it allowspersons148 with standingto seek subpoenas. The procedure is to give the Board of Adjustment a written request, 149 which she did by letter. And it provides the chair shall issue the subpoena if it is determined toberelevant 150 material and reasonable in nature and scope and not oppressive.The statutealso contemplates that 151 partiesfrom whom documents are soughtmay file motions to quash subpoenas. There was no motion to 152 quash or modify the request that she filed some six months ago. 153 154 LeAnn Brown reviewed that six months ago sheprovided a letter of appeal to the Current Planning 155 Supervisordated October 13, 2017. She noted that Pages 49-51 of the agenda packet outline the errors 156 alleged. The letter to Chair Samantha Cabe that she sent sought five subpoenas to the following properties: 157 Southeast Property Group LLC, which is the legal owner of the property; Wild Flora FarmLLC,which was 158 createdat some point in time,KaraBrewer individually;ChrisBrewer individually; and Barn of Chapel Hill159 LLC. She noted that under the law, those are all separate legal entities. What shesought from them was 160 informationsubmitted to the North Carolina Department of Revenueor to Orange County regarding their161 alleged eligibility or alleged compliance with the statute regarding the farm exemptionas it has been 162 amended. She noted where the farm exemption provisions can be found in the state statutes, as noted on 163 Page 53 of the agenda packet, and that the session law amends several places in the statutes. The other 164 information shesought is the relationship among these entitiesbecause information has been provided to 165 the county, suggesting that a tax certificate that was received identifies Wild Flora Farms and KaraBrewer166 somehow applied to Southeast Property Group LLC. The statute requires the tax certificate to be issued to 167 the owner of the property and one of the errors that her party has alleged is that a certificate to Wild Flora 168 Farmor KaraBrewer cannot apply to SoutheastProperty Group LLC. On its face, it does not.Frankly, the 169 income amounts and time increments in the two statutes applying to the North Carolina Department of 170 Revenue do not appear to have been possibly temporally to have been metand so her party thinks the 171 information she is requesting would be helpful to inform them as to whether there is compliance with those 172 issues. That would be the issue when she comes before this board again. 173 174 LeAnn Brown reviewed that what the statues requireisan annual income from farming forthe previous tax 175 year of$10,000 or anaverage for three years ofthat amount. There are conditional exemptions for tax 176 purposes but that provisiondoes not qualify a property owner. The letterto Kara Brewer with an exemption 177 identification number for Wild Flora Farm is dated September 22, 2017. Wild Flora Farm was created 178 February 14, 2017, so it had only existed a few months. There is annual record of an assumed name 179 certificate for Wild Flora Farm dated October 12, 2017, but it is after the certificate was issued as well. The 180 property was purchased in 2015 by Southeast Property Group LLCand has been owned by it throughout 181 this process. 182 183 LeAnn Brown said that webelieve that in order for the Board of Adjustmentto make an intelligent and 184 informed decision on the appealing chief as to whetherOrange County has misinterpretedwhat it has185 received or has failed to make the appropriate legal distinctions among the parties would be informed by 186 the requested subpoenas. She and her clientsbelieve that without the information, it would be difficult for 187 her and herclients in the dark without underlying information to know whether what has been provided 188 meets the statutory requirements. At a hearing on this matter, any evidence that is obtained through the 189 subpoenas can be objected to. The boardcan choose in a hearing to sustain the objectionsand LeAnn 190 Brown can offer to make an offer of proof and have that information available so that a court can look at it 191 later.Or the other party can object and the board can sustain that and a court can look at it later. If LeAnn 192 Brown is not allowed to subpoenathe information, then it renders it very difficult under her due process 193 rights toprepare an argument before the Board of Adjustment. She appreciates Karen Barrows’s decision 194 20 to not sign as she could have done as vice chair. She summed up her argument by saying that it would be 195 error indeed for the Board of Adjustmentto refuse to issue the subpoenasbecause it would render her 196 party unable to present a case to the board or to make an offer of proof to this board. If the boardrefuses, a 197 higher court would likely say let’s see what an offer of proof would have been, she said.She asked that the 198 board issue the subpoenas and that the subpoenas require that the information be submitted before the 199 next hearing andthat the persons listed are presenttoanswer questions.200 201 Andy Petesch,of the Wake CountyBar, addressed the board and said he was here on behalf of Kara 202 Brewerand the actual property owner now, which is Wild Flora Farm LLC. He said therewas a merger 203 between Wild Flora Farm LLC and Southeast Property Group in February of this year. He passed out 204 documents with that information. 205 206 Randy Herman asked if LeAnnBrown had been provided a copy.207 208 LeAnn Brown answered she was receiving that information just now. 209 210 Andy Peteschgave documentation to the boardand offered itinto the record and clarified that now Wild 211 Flora Farm LLC owns the property.212 213 Andy Peteschsaid this is not a complicated decision. There is not a need for this potentially vast amount of 214 documents that are being requested. The letter submitted on October 12, 2017, on behalf of SPG/Wild 215 Flora/Kara Brewer included the exemption certificate, which is located on Page 11 of the agenda packet;a216 deed at the time, which was owned by SPG LLC/Southeast Property Group and now by operation of law 217 owned by Wild Flora Farm LLC; an annual report by SPG showing KaraBrewer as the loan member; and a 218 certificate of assumed name at the timewhile SPG and Wild Flora Farm were working on that merger, 219 (SPG operatedunder the pseudonym Wild Flora Farm). 220 221 Andy Petesch said what is agritourismand abonafide farm was the subject of a lot of debate and was the 222 subject of several public hearingsbefore this board.And as the Board of Adjustment has already heard, in 223 July 2017, theGeneral Assembly tried toclarify that and they created a very straightforward compliance 224 under the statute for a bona fide farm to conduct agritourism in a structure or building on a farm under 225 N.C.G.S. 153(A)-340(b) (2a), located at the end of the agenda packet. This statute describes agritourism, 226 which includes weddings and special events, and states that a building or structure used for agritourism isa227 bonafide farm activity if the building or structure is located on property that is owned by a person who holds 228 a qualifying sales tax exemption certificate. The same person or entity who owns the certificate also needs 229 to own the property. In some cases that may be a straightforward Joe Smithowns a property and holds a 230 certificate, but many farms havedifferent entitiesfor different aspects of their operations. That’s where231 Southeast Property Group, Wild Flora Farm, KaraBrewerhad to resolve some of those inconsistencies.232 That has been brought into alignment and those documents have been presented to MichaelHarvey.233 That’s all there is to this case, Andy Petesch said. As this point, Wild Flora Farm and KaraBrewer hold the 234 certificate. Wild Flora Farm ownsthe property. There is noneed to go into all these other document 235 requests, which is burdensome.236 237 Andy Petesch said LeAnn Brown focused on “relevant” underthe requirement ofN.C.G.S. §160A-388(g), 238 but “reasonable in nature and scope” is also part of the requirement. Requesting to go behind these 239 documents to look at personal, confidential financialinformation, tax records, and wantingto dig through 240 that looking for some issue to continue the fight against this property isan overreach at this point, he said.241 MichaelHarvey had those documentsand this board hasall the powers that he has. This board needs to242 stand in his shoes andlook at all this information fresh and determine whether this meets the statute. This 243 21 board can look at the statute and reverse Michael Harvey’s decision. This board does not need to look at 244 the legal relationship betweenKaraBrewerand her husband. That’s invasive, burdensome and oppressive. 245 That’s why this subpoena request should be denied. There is a list of entities in the subpoena request that 246 have not even been involved. KB Designs, for example, hasn’t been brought up at any point in these 247 proceedings. So, in closing, this board’s authority is to review the decisions that the planning staff make 248 with respectto enforcing the UDO and specificstatutory guidance that informs that. To start looking at what 249 the Department of Revenue is doing andwhether they made the right decisionis completely outside the 250 scope of this board’s authority and would be an abuse of discretion. He asked that they uphold the denial of 251 the request. 252 253 Leann Brown asked for a rebuttal. Karen Barrows said the board did not plan to entertainrebuttals.254 255 Andy Peteschobjected to rebuttals, noting each party had 10minutes, which LeAnn Brown had used. 256 257 LeAnn Brown said she wanted to note that Andy Petesch had misspoken and the date on the document he 258 submitted to the board was February 19, 2018. 259 260 Karen Barrows asked if board members have questions. 261 262 Randy Herman asked Andy Peteschwhether he agrees with LeAnnBrown that this board had found that 263 thechallengers have standing. Andy Petesch said he objects to any finding of standing in this case as he 264 has objected to it at previous hearings.265 266 Randy Herman said specifically N.C.G.S. 153(A)-340 (b) (2a), the agritourism provision, it states under 267 Subsection 1,that the building is a bonafide farm purpose if it is located on property owned by a person 268 who holds a qualified farmer sales tax exemption certificate. The certificate was issued to KaraBrewer and 269 the property owner was Southeast Property Group,now Wild Flora FarmLLC.Those are not all the same 270 person.271 272 Andy Petesch answered the certificate is issued to Wild Flora Farm. The card itself is issued to Wild Flora 273 Farm.The addressee is Kara Brewer onthe letter to which the card isattached. 274 275 Randy Herman said the card does not have the LLCafter Wild Flora Farm. How is the Board of Adjustment 276 toknow that is the same entity or person?277 278 Andy Petesch answered that would be a matter that this board would have to decide at a hearing on that 279 issue. 280 281 Randy Herman asked LeAnnBrownwhether this board had a specific finding thatherclients have 282 standing, as they would be required to have standing to request the subpoenas.283 284 LeAnn Brown said there was detailed testimonyin one of the earlier hearings from each of her sixclients. 285 And the board made the finding of fact that the individuals have standing. She said Andy Peteschmade an 286 appeal to Superior Court on that finding. She can certainly spend a couple of hours putting these people on 287 the standto establish these people having standing. There have been at least four appeals involving this 288 case. She asked that the board make judicial notice that her clients have standing and note Andy Petesch’s 289 objection and move forward to keep this hearing brief. 290 291 22 Randy Herman said to LeAnn Brown, on the elementsof granting the subpoenarequest,sheaddressed292 relevance, but there is also the requirements that the request be reasonablein scope and not oppressive.293 He asked her to speak briefly on those requirements.294 295 LeAnn Brown said what we have asked for from the individuals is thatif therewerematerials submitted to 296 the Departmentof Revenue,which she thinks would exist in a fairly easy way to reproduce, that her party297 be allowed to see them so that theycan understand to whom that certificate was issuedand whether it was 298 the kind of certificate it needs to be.An argument about what you can look behind is an argument for the 299 hearing in chief, she said.The dates for these entities do notmatch the date of the certificate. Wild Flora 300 Farmdid not existwhen the certificate was issued, forexample; therefore, she thinks it was unlikely that the 301 certificate was issued to that entity.She said as far as the legal relationship between Chris and Kara302 Brewer, the Brewerscan put down husband and wife, no big deal. She thinks it is appropriate forher party303 to askforthis information. She said she does not think it is oppressive to ask for this information. In order to 304 use this farm exemption, she thinks the property owner has to indicate a willingness to provide this 305 informationin order for others to support that the property owner is entitled to this exemption.She said her 306 party hasnot intended to look for deep, dark secrets. She reviewed that her party hasasked for information 307 submitted to the North Carolina Department of Revenueand Orange Countyregarding eligibility and 308 compliance under these statutory provisions, as well as the relationship. She wants to know, for example, 309 whether the entities were merged. She said Andy Petesch has argued to Orange County and to this board310 that somehow this is all the same thing. She does notthink it isoppressive or unreasonable to submit to 311 this boardthe packet submitted to obtain the certificate. She said the argument that Michael Harvey has all 312 of this information is incorrect. The agenda packet includes what Michael Harvey has. 313 314 Randy Herman said the board has documentation of the merger showing that Wild Flora Farm LLC and315 Southeast Property Group LLChavemerged andSPG was previously operating under the assumed name 316 Wild Flora Farm, so even if there was an issue about the identity at the time that the letter was issued, it 317 seems to himthat it is possible that the issue would be moot at this point because the identities have all 318 merged. He asked if LeAnn Brown would like to address that. 319 320 LeAnnBrown said the reason we have requested thesesubpoenasis to answer some of these questions. 321 She said the questions Randy Herman asked her presupposed she knows the answers to those questions 322 in those documents. She said what she knows isthat the Department of Revenueissued a certificateon323 October 17, 2017, to Wild Flora Farmwithout an LLC attached to it and to KaraBrewer. She also knows324 that three weeks later, Southeast Property Group LLC filed an assumed name certificate, Wild Flora Farm,325 no LLC. She knows that Wild Flora FarmLLC was created on February 14, 2017, and that a merger 326 occurred on February 19, 2018. That information answers no questionsfor herabout what information was 327 shown to the Department of Revenue – whose revenue was being used – to determine whether the 328 property owner was entitled to a certificate or what that certificate was.The document Andy Peteschgave 329 to the boardis excellent evidence of why her party needs the subpoenas so that her party and the board 330 can understand how entities that did not exist when the certificate was issued play a role in whether that 331 certificate does appropriately apply to this property. She said if there is nothing in the documents to call into 332 question which entity it is and whetherthat entity isthe owner, (which she would submit to the board that it 333 still is not), if we look at the materials and the materials do notsupport anythingshe wishes to argue, then 334 she supposed it would make her hearings somewhat shorter, she said.Her party is asking the board to let 335 them all know what they are dealing with. She saidAndy Petesch can argue once everyone hasseen the 336 information.Michael Harveyand John Robertshave not seen it.337 338 Randy Herman said putting aside the issue of the identities, LeAnn Brown has also talked about the length 339 of time the income was reported, but it seems to him looking at the statute, assuming we have the correct 340 23 property owner, once the property owner has broughtforward a tax exemption certificate from the 341 Department of Revenue, the statute seems to require the county must accept that and cannotlook behind 342 it. Aside from the issue of identityof the entities, what authority does LeAnn Brown think the Board of 343 Adjustment hasto look behind the certificate issued by the Department of Revenue? 344 345 LeAnn Brown answeredshe thinks that is interesting andwill be a question of first impressionbecause the 346 statute is new. Whether a county has the authorityto look behind the certificate has not been litigated. She 347 has never seen a tax exemption certificate issued to the ownerof this property as Southeast Property 348 GroupLLC or Wild Flora Farm LLC, so she has not asked that question yet because she is not past the 349 identity question. She thinks the county staff should have looked at the document and said the property 350 owner is Southeast Property Group LLC and the certificate is issued to Wild Flora Farm. Done. She thinks 351 that would have been correct. She asserts that the county looked behind the certificate and made an 352 argument that the legalformalities of corporate ownershipand individual ownershipsomehow have no 353 meaning and issued an opinion which blended together a bunch of legal entities. She added that one 354 reason she wanted to bifurcate the hearing was because itis difficultfor her to answer questions until she 355 can see what she is talking about.She is 100 percent certain that the Board of Adjustment does not hold a 356 taxcertificate with the name of the property owner on it, even if we assume that a post-issuance merger 357 somehow has play here. 358 359 Andy Peteschsaid that was quite a bit of time that LeAnn Brown had and asked for 60 seconds.360 361 KarenBarrows granted that time.362 363 Andy Peteschsaid the question is what would this board would do with this information if they got it. Ifthis 364 boardstarts going behind the Department of Revenue,there will be attorneyfees awarded to Kara Brewer 365 andSPG and Wild Flora Farmbecause that is absolutely outside the scope of this board’s authority. Ifthis 366 boardwants very specific additional documentation with respect to whether Wild Flora Farm LLC is what 367 the Department of Revenue intended when it issued the certificate, that can be addressed. The rest is 368 entirely unnecessary to determine that entity question.369 370 Karen Barrows asked whether there were any other questions.371 372 Barry Katz asked whether he understood correctly thatregardless of the Board of Adjustment’sdecision, it 373 was going to be appealed to Superior Court. 374 375 Andy Petesch, standing with LeAnn Brown, said they could jointly respond. AndyPetesch said it was 376 uncharted watersand they are unsure how a court will treat an appeal of this decision.LeAnn Brown said it 377 is fair to say whatever the boarddoeswith this case, it will end up as an appeal somewhere. She believes 378 there are three or four appeals on this case already. She will have to appeal because without the 379 subpoenaed documents,her hands are tied to make burden of proof to this board. 380 381 Barry Katz said that was his understanding. He anticipated this. He then asked Andy Petesch whether the 382 fees he alluded towould be directed at LeAnnBrown’s clients. 383 384 Andy Peteschsaidthe county would be liable for attorney’s fees, under state statutes. 385 386 LeAnn Brown said it is troublesome to her that the board would consider thethreat of attorney’s fees when 387 making a decision on this matter. Having read the statuteseveral times, she does not think it is a foregone 388 24 conclusion that the county would have to pay attorney’s fees. She said the board hasto make decisions on 389 what itthinksis right or wrong and not worry about that. 390 391 Barry Katz said theoretically after LeAnn Brownexamines the information she seeks,one of the primary 392 determinations he thinks he hears from her isthat the Planning Department was in error in making a393 decision because of the lack ofunderstanding of the chain of ownership and whetherthe owner was in a394 position to make a request fora legitimate certificate. 395 396 LeAnn Brown said it is a simple question: who owns the property? Southeast Property Group LLC. Whose397 name is on the certificate? Somebody else. The countydid a pretzel twist to say well, this entity isreally the 398 same as this entity, she said.399 400 Barry Katz said it could have been a misunderstandingto actually grant it. Whatever entityit isthat owns 401 this property did nothave to appear before this boardfor a special use permit, etc., and then was granted 402 the use of this property to put the barn up in error. 403 404 LeAnn Brown said they applied for a special use permit. The boarddenied it. They appealedit and the 405 appeal was not perfected. They built the barn and took the position that the property qualified for the farm 406 exemption. And then the statute changed.407 408 Barry Katz asked whether there was any case law that if an entity applies for a special use permit, it is 409 bound by the results of that application. 410 411 LeAnn Brown said she thinks there is. If the board looks at the errors she has alleged in the case in chief, 412 she will make the argument again that the event business should be stopped.413 414 Barry Katz said over the two or three years this case has been coming before the Board of Adjustment, 415 there has been an evolution in terms of how the entity presents itself. He asked whetherthereisany 416 requirement from the entitytoestablish that they are a legitimateoperating farm that has continuous 417 income while theydo this event business.418 419 LeAnn Brown asked that her answer on that be saved for a hearing on the merits. 420 421 Barry Katz said he had the impression that this would be a very different kind of hearing, so he had that 422 question in mind.423 424 LeAnn Brown said she had asked to keep this hearing brief because she was scheduled for surgery the 425 following morning and Andy Petesch had agreed to askfor this hearing to be bifurcated out of professional 426 courtesy to her and because they both agreed that the decision tonight would be important in determining 427 what happens next. 428 429 MOTION by Barry Katz toclose the public hearing. Seconded by Susan Halkiotis. 430 431 VOTE:UNANIMOUS432 433 Karen Barrows asked Susan Halkiotis for her thoughts. 434 435 Susan Halkitios thanked Randy Herman for hisquestions. She said she is squeamish about being 436 overreaching. She thinks Andy Petesch madegood arguments. However, she comes down ontheside of 437 25 allowing thesubpoenas to be issued. Without the subpoenas and information, there are remaining 438 questions to be answered. Herposition is to allow the subpoenas to be issued. 439 440 Karen Barrows asked Randy Herman to expresshis thoughts.Randy Herman said he thinks it is legitimate 441 to ask whether the entitythat owned the propertywas issued the certificate. He does notthink the rest is 442 within the scopeof this board.He does not think it is within the scope of this board to look behind the 443 Department of Revenue’s decision. So, if it is possible to rewrite the request to limit the subpoenas only to 444 the issues of identity, he would be in favor of that. He deferred to the county attorney on whether or not the 445 board can do that. 446 447 Susan Halkiotis said she had a related question. LeAnnBrown mentioned questions about thequalifying 448 financial information to gain one of the farm tax exemptions. Susan Halkiotis does not know how that is 449 unraveled when the question of the entities is resolved. Ifinformation was given to acquire a certificate and 450 that certificate was then used to base adecision on, and the certificate should nothave beenissued, then 451 the whole thing falls apart. 452 453 Randy Herman said even if theoretically in another case fraudulent information was provided to obtain the 454 certificate, he does notthink the countycan look behind it. Hethinksthe only question this boardcan look 455 at is whether the entity issued the certificate was the one that owned the property.His opinion is that the 456 board does not have the power to look at whether the Departmentof Revenue miscalculated the revenue. 457 458 Barry Katz said this is the kind of information that the boardneedsto know and would be argued before us 459 at the next hearing we have with these parties. He then said he was not sure whether Randy Herman is a 460 lawyerand giving a legal opinion. He is in favor of issuing the subpoenas and that LeAnn Brown and her 461 party have a legitimate right to have this information. 462 463 Randy Herman said he is an attorney, but there is no case lawthat he is aware of on the interpretation of 464 these statutes.His opinion is based on what he thinks is a straightforward reading of the statutes. 465 466 Karen Barrows said she agrees withSusan Halkiotis and BarryKatzthat the boardshould allow the 467 subpoenas to go forward, for the reasons they have stated. 468 469 MOTION by Barry Katztoissues the subpoenas.Seconded by Susan Halkiotis. 470 471 VOTE:3-1(RANDY HERMANFOR REASONS PREVIOUSLY STATED) 472 473 Karen Barrows called for a vote to adjourn. 474 475 Michael Harvey said that before adjournment the board needed to set the date for the next hearingon this 476 case, with guidance from James Bryan. 477 478 There was agreement to give LeAnn Brown time to recover from surgery. 479 480 LeAnn Brown requested that the date that the documents requested in the subpoenas be submitted to the 481 board be before the next hearing on this case so that she would have time to prepare. Andy Petesch 482 objected to providing the documents in advance of the hearing, explaining that he believes he and his 483 clients would be obligatedto produce the documents at a hearing and not before. Randy Herman agreed 484 with that interpretation. 485 486 26 There was then discussion of holding a hearing for the sole purpose of receiving the documents. 487 488 James Bryan suggested holding a Board of Adjustment meeting in July for the sole purpose of receiving the 489 documents. 490 491 There was then question of whether witnesses were required to appear in July.492 493 Andy Petesch said if witnesses were required to appear, he would need a much more specific list of 494 questionsconsistent with discovery rules. 495 496 Karen Barrows said she thought only thedocuments were being required in July. 497 498 Andy Peteschsaid he was not waiving his objection to producing the documents earlier than the hearing on 499 the matter.500 501 LeAnn Brown said the subpoenasattached to the original request ask that witnesses appear before the 502 Board of Adjustment on a date certain and ask that the documents be produced in advance on a date 503 certain. Rule 45 allows that. She thinks it is appropriate to requirethat. 504 505 The board returned to discussing when in July the documents would be required. James Bryan noted the 506 Board of Adjustment’s next meeting would be July 9. He suggested having the people who are subpoenaed 507 appear at the August Board of Adjustment meeting on August 13. 508 509 Karen Barrows asked for a motion.510 511 Susan Halktiois told the attorneys in the room that she does not know whatRule 45means and whether it 512 does require that the subpoenaed documents be submitted at a hearing of this board. 513 514 James Bryan said if there is nothing else on the agenda and that is the whole reason everyone has to show 515 up, it might be frustrating. 516 517 Barry Katz said he was in favor of setting the dates of July 9 for the subpoenaed documents and August 13 518 for the subpoenaed people, acknowledging that Andy Petesch and LeAnn Brown had said that whatever519 the board decided this evening, there would be an appeal. Therefore, those dates may not remain the 520 same. 521 522 Karen Barrows called for a motion. 523 524 MOTION by Barry Katz tohave the information presented on July 9, 2018, to the Board of Adjustment with a 525 further meeting of all parties August 13, 2018. Seconded by Susan Halkiotis. 526 527 VOTE:UNANIMOUS528 529 530 AGENDA ITEM 5: ADJOURNMENT531 532 MOTION by Barry Katzto adjournat 8:14p.m. Seconded byRandy Herman.533 534 VOTE:UNANIMOUS535 536 27 537 _________________________________________538 NAME OF CHAIR,CHAIR539 28 ORANGE COUNTY BOARD OF ADJUSTMENT PUBLIC HEARING AGENDA ITEM ABSTRACTCASE A-4-18 Meeting Date:July 9,2018 Agenda Item No.A-4-18 SUBJECT:CASE A-4-18:VARIANCE request for a parcel of property located at 4916 Old Hillsborough Road (PIN: 0803-30-4715). DEPARTMENT:Planning and Inspections PUBLIC HEARING: (Y/N)Yes ATTACHMENTS:INFORMATION CONTACT: 1. Application Package; 2. Site Assessment; 3. BOA Notification Materials; 4. Adjoining Property Owner and Staff Comments; and 5.VarianceFindings of Fact. Michael D. Harvey, Planner III(919) 245-2597 Craig Benedict, Director (919) 245-2575 UNDER SEPARATE COVER a.11” X 17” Copy of Approved and Revised Site Plan PURPOSE: To hold a public hearing, receive testimony and evidence, and take actionon a VARIANCE application from the provisions of Section 3.7 Economic Development Districts – Economic Development Eno Low Intensity (EDE-1) general use zoning district dimensional standards of the Unified Development Ordinance (hereafter ‘UDO’). Specifically the applicant is requesting a 15 ft. reduction in the 25 ft. required side yard setback along the western property line(i.e. observing a 10 ft. setback from the western property line). BACKGROUND: The basic facts concerning the current application are as follows: Applicant/Owner: Stone and Church Investments LLC 12 Steepleton Court Hillsborough, NC 27278 Location:4916 Old Hillsborough Road.Please referto Attachment 2 for a map of the subject parcel. Parcel Information: a. PINs:0803-30-4715. b.Size of parcel:33,105 sq.ft. (0.76 acres). 29 c. Zoning of parcel:Economic Development Eno Low Intensity (EDE-1) ; Lower Eno Protected Watershed Protection Overlay District. d.Township:Eno. e.Future Land Use Map Designation:Economic Development. f.Growth Management System Designation:Urban Designated. g.Roads:Frontage along Old Hillsborough Road/US Highway 70 where primary vehicular ingress/egress is obtained.There is a privately maintained roadway/access road along the eastern property line. h.Water and Sewer Service:The property is located within a primary utility service areaand is served by existing utility system(s) maintained by the City of Durham. Surrounding Land Uses: a.NORTH: Undeveloped EDE-1 zoned property ; office building zoned EDE-1. b.SOUTH:Old Hillsborough Road / US Highway 70. c.EAST:Private roadway ; restaurant and commercial building zoned EDE-1. d.WEST: Car storage lot zoned EDE-1. Proposal:As detailed within Attachment 1, the applicant hasapplied for a variancefrom the side yard setback standards of the EDE-1 general use zoning district. Specifically the applicant is requesting a 15 ft. reduction in the 25 ft. required side yard setback for the aforementioned property.If approved the side yard setback for the proposed structure would be reduced to 10 ft. as measured from the western property line. The property has an existing 3,000 sq.ft. building used for non-residential purposes. This existing structure is already located within the required side yard setback. The applicant proposed an expansion of the existing structure to accommodate his proposed commercial operation. The addition was located consistent with applicablesetback standards currently enforced for the property based on itsEDE-1 general use zoning designation. Staff reviewed and ultimately approved the site plan approval allowing for the proposed expansion aftercompliance with applicable dimensional requirements, as detailed within Section 3.7 of the UDO, had been demonstrated. The approved site plan proposed the use of an adjacent private roadway to serve the project’s vehicular access needsin an effort to address County land use (i.e. setbacks, drive-isle width, parking, etc.)and State Building Code (i.e. vehicular turn radius) requirement(s). At the time of site plan approval use of theprivate roadway had, in principal, been agreed to. Unfortunately, the use of the private access roadway is no longer a viable option. The applicant argues the setback reduction is necessary to accommodate traffic accessing the property and maintain compliance with applicable County and State Building code standards. 30 As previously indicated, ifthe variance is approved the side yard setback along the western property line would be reduced from 25 to 10 ft. ORDINANCE REQUIREMENTS: Per Section 3.7 development project(s) within the EDE-1 general use zoning district are required to adhere to the following dimensional requirement(s): a.Minimum Front setback from right of way: i.Building - 25 ft. ii.Vehicle Use Area (i.e. parking, storage, etc.) - 10 ft. b.Minimum Side and Rear yard setback from property line: i.Building - 25 ft. ii.Vehicle Use Area (i.e. parking, storage, etc.) - 10 ft. c. Driveway setback from property line – 10 ft. d.Maximum allowable height – 60 ft. e.Minimum setback between detached buildings – 20 ft. f.Maximum Allowable Floor Area Ratio (i.e. the maximum allowable building floor area) – 0.60 or 19,863 sq.ft. g.Minimum Required Open Space Ratio (includes parking and travel lanes) – 0.45 or 14,897 sq.ft. h.Required Minimum Pedestrian/Landscape Ratio (buffers, sidewalks, etc.) - .05 or 1,655 sq.ft. As previously indicated the applicant complied with all applicable development standards allowing for the approval of a previously submitted site plan.With the inability to make use of the adjacent private access road/drive, however,a variance has become necessary to allow the project to move forward. STAFF COMMENT(S): 1.The application has been deemed complete. 2.As required under Section 2.12.6 of the UDO, staff notified all property owners within 1,000 ft. of the subject property of the variance request. This notice also informed parties of the date, time, and location of the public hearing where the request will be reviewed. Copies of the letter, as well as our certification of mailing, are contained in Attachment 3. As of June 29, 2018, the writing of this abstract, staff has not received any complaints/concerns resulting from property owners notified of the request. Staff has received an e-mail of support for the request, which is contained within Attachment 4. 3.Staff has determined the granting of the variance will not create issues for adjacent property owners with respect to the development/re-development of their properties. 4.The issuance of the variance will not impact required buffer(s) for the property as outlined within Section 6.8.7 of the UDO. 31 5.Staff determined the granting of the variance will not have a negative impact on existing traffic service levels in the areaor be consistent with applicable access management standards. 6. As detailed withinSection 2.10 Variances of the UDO, the Board is authorized to modify or vary regulations when strict compliance with the regulation or standard would result in unnecessary hardships upon the subject property. 7.In accordance with the provisions of Section 2.10.3 of the UDO, the Boardmay approve a variance in cases where unnecessary hardships would result from carrying out the strict letter of theUDO, when substantial evidence in the official record of the application supports all of the following findings: a.Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. b.The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or general public, may not be the basis for granting a variance. c. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. d.The requested variance is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured and substantial justice is achieved. 8.Per Section 2.10.9 of the UDO, the Board is not empowered to grant a variance without an affirmative finding of fact supported by substantial evidence in the record of the proceedings before the Board. Further, the Board may impose appropriate conditions provided same are reasonable related to the variance request. 9.Per Section 2.12.4 of the UDO the affirmative vote of four of the members of the Board is necessary to effect any variation of the Ordinance. 32 33Attachment1 34 35 36 37 PI N O W N E R _ T YOW N E R 1 _ L A S T O W N E R 1 _ F I R S T O W N E R 2 _ L A S T O W N E R 2 _ F I R S T 80 3 2 0 7 8 4 7  MI C O L G I O V A N N I E 80 3 3 1 2 2 4 8  MI C O L M A R K S M I C O L L Y N N H 80 3 3 0 0 1 5 3  DU K E U N I V E R S I T Y 80 3 3 0 7 4 4 3  JO H N S O N C H A R L E S W J O H N S O N S Y B I L C 80 3 2 1 3 1 8 6  WO M B L E G E R A L D MI C O L 80 3 2 0 4 5 1 6  WH I T E H A L L II L L C 80 3 2 0 7 2 8 2  OH A R N O L D S 80 3 2 0 2 2 5 4  HI C K S E L I Z A B E T H T 80 3 3 0 1 7 2 4  MI C O L V I C T O R EJR ET A L M I C O L L A R R Y JSR 80 3 3 0 8 8 1 1  OR A N G E W O O D DR I V E BU S I N E S S C O M P L E X LL C 80 3 3 1 7 8 8 8  DO B S O N L I N D A W 80 3 3 0 2 7 7 4  MI C O L PR O P E R T I E S LL C 80 3 3 0 4 7 1 5  ST O N E &CH U R C H IN V E S T M E N T S LL C 80 3 3 0 6 7 0 5  CD EN T E R P R I S E S LL C 80 3 3 1 7 6 7 6  DO B S O N S T A C Y W D O B S O N T O N Y A C 80 3 3 1 7 7 8 7  KO S T NA N C Y D 80 3 3 1 7 5 6 3  KI N G J O Y C E P 80 3 3 1 5 3 0 4  JO H N CO A T E S PR O P E R T I E S L L C 80 3 3 1 7 0 6 8  BE C K B E V E R L Y S 80 3 3 1 7 2 7 0  FY E J A S O N M K U C E R A K R I S T E N L 80 3 3 1 7 3 8 1  MI L L E R G R E G O R Y K M I L L E R N A N C Y L 80 3 3 1 7 4 8 3  PA T T E R S O N F R A N K LJR 80 3 3 1 0 1 8 6  MI C O L C H A R L E S A 80 3 2 1 8 1 8 0  MI C O L M A R K SET A L M I C O L L Y N N H 80 3 3 0 5 1 7 4  LRJA C O B S LL C 80 3 3 2 4 3 8 1  JO H N CO A T E S PR O P E R T I E S LL C 38 AD D R E S S 1 A D D R E S S 2 C I T Y S T A T E Z I P C O D E T O W N S H I P 61 1 8 US 70 E  DU R H A M N C 2 7 7 0 5 9 0 5 0 5 49 2 6 HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 32 4 BL A C K W E L L ST S T E 85 0 D U R H A M N C 2 7 7 0 1 5 70 1 5 EAR C H E R S CT  EM E R A L D IS L E N C 2 8 5 9 4 5 POBO X 26 6 2  DU R H A M N C 2 7 7 1 5 2 6 6 2 5 PO BO X 52 1 1 8  DU R H A M N C 2 7 5 1 7 5 50 0 5 HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 51 0 5 OL D HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 11 8 ECI R C L E DR  LE X I N G T O N S C 2 9 0 7 2 5 42 0 5 PL E A S A N T GR E E N DR  DU R H A M N C 2 7 7 0 5 5 24 2 3 OR A N G E W O O D DR  DU R H A M N C 2 7 7 0 5 5 9 2 1 5 49 2 6 HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 12 ST E E P L E T O N CT  HI L L S B O R O U G H NC 2 7 2 7 8 5 62 5 TE R R Y RD  HI L L S B O R O U G H N C 2 7 2 7 8 5 24 0 9 OR A N G E W O O D DR  DU R H A M N C 2 7 7 0 5 5 24 1 9 OR A N G E W O O D DR I V E  DU R H A M N C 2 7 7 0 5 5 24 0 1 OR A N G E W O O D DR  DU R H A M N C 2 7 7 0 5 5 49 0 0 HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 80 8 SN O W HI L L RD  DU R H A M N C 2 7 7 1 2 5 23 2 7 OR A N G E W O O D DR  DU R H A M N C 2 7 7 0 5 5 23 3 1 OR A N G E W O O D DR  DU R H A M N C 2 7 7 0 5 5 23 3 3 OR A N G E W O O D DR  DU R H A M N C 2 7 7 0 5 2 2 0 9 5 49 2 0 HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 9 0 6 5 49 2 6 HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 49 1 5 HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 49 0 0 HI L L S B O R O U G H RD  DU R H A M N C 2 7 7 0 5 5 39 40 Approvedsiteplan 41 Revisedsiteplan- buildingmoved Addresses STATUS Active Unverified Parcel_Lines LINE_CODE Parcel Line Parcels Streets Zoning FIRM Watershed Flood Panel: 0803K Lower Eno Protected Watershed HILLSBOROUGH RD EDE-1 EDE-2PIN#: 0803304715 STONE & CHURCH INVESTMENTS LLC 12 STEEPLETON CT HILLSBOROUGH, NC 27278 42Attachment2 43Attachment3 44 45 46 47 48 NOTICE OF MEETING BOARD OF ADJUSTMENT OF ORANGE COUNTY, NORTH CAROLINA Pursuant to the requirements of the General Statutes of North Carolina, Chapter 153A, Sections 340 and 345.1, Chapter 160A Section 388, and Section 2.11 of the Orange County Unified Development Ordinance (UDO), notice is hereby giventhat the Board of Adjustment will hold a hearingat 300 West Tryon Street (Whitted Building) Hillsborough, NC 27278on Monday July 9, 2018at 7:00PM for the purpose taking specific action on the following item(s): 1. A-4-18– PUBLIC HEARING to review a Variance application from Section 3.7 Economic Development Districts – Economic Development Eno Low Intensity (EDE-1) general use zoning district for a parcel of property located at 4916 Old Hillsborough Road (PIN: 0803-30-4715) within the Eno Township. In accordance with the provisions of Section 2.10 of the Orange County Unified DevelopmentOrdinance (UDO) the applicants, Stone and Church Investments LLC, have applied for a VARIANCE from side yard setback standards of the EDE- 1 general use zoning district.Specifically the applicant is requesting a 15 ft. reduction in the 25 ft. required side yard setback for a parcel of property at 4916 Old Hillsborough Road. The applicant received site plan approval allowing for further development of the subject parcelthat complied with the required 25 ft. side yard setback. The approved plan proposedthe use of an adjacent private roadwayto serve the project’s vehicular access needs. At the time of site plan approval the owner of the private roadway had consented, in principal, to its use by the applicant’s. The applicant was recently informed use of the private access roadway was no longer going to be permittedby the owner. The applicant argues the setback reduction is necessary to accommodate traffic accessing the propertyand maintain compliance with applicable County and State building code standards. If approved the side yard setback for the proposed structure would be 10 ft. 2. A-3-18– Receipt of Subpoenaed documentation for a parcel of property located at the intersection of Morrow Mill and Millikan Roads (PIN: 9729-50- 7168). In accordance with action taken at its May 7, 2018 meeting, the Board of Adjustment shall receive subpoenaed material associated with the review of an appeal application concerning the status of a structure located ona parcel of property, identified utilizing Orange County Parcel Identification Number (PIN) 9729-50-7168, owned by Southeast Property Group LLC(a.k.a. Wild Flora Farm) care off Ms. Kara Brewer. The Board of Adjustment is scheduled to receive subpoenaed materials. The Board of Adjustment is scheduled to continue the hearing at its August 13, 2018 regular meeting As part of the County’s continuing education initiative, the Board shall hold a training session with staff and the County’s Attorney office between 6:00 p.m. and 7:00 p.m. prior to the commencement of the aforementioned public hearing. Although the public can attend the 49 training session it is not a public meeting. TheBoard shall not accept public comments or question(s). All interested citizens are invited to attend this hearing. This is a quasi-judicial hearing requiring a fair trial standard including accepting only competent, material, and substantial evidence presented by parties with standing. Following the close of the public hearing, only evidence presented at the public hearing will be examined by the Board of Adjustment for decision. Changes may be made in the advertised proposal, which reflect debate, objections, and discussion at the hearing. Questions regarding the proposal may be directed to the Orange County Planning and Inspections Department located on the second floor of the West Campus Office building at 131 West Margaret Lane, Hillsborough, North Carolina, 27278. Office hours are from 8:00 a.m. to 5:00 p.m., Monday through Friday. You may also call 732-8181 (Hillsborough), 688-7331 (Durham) or 967-9251 (Chapel Hill-Carrboro). Please ask for Extension 2575 or 2585. You will be directed to a staff member who will answer your questions. Craig Benedict, AICP Planning Director PUBLISH: NEWS OF ORANGE THE HEARLD SUN June 27, 2018June 27, 2018 July 4, 2018July 4, 2018 50 1 Michael Harvey From:mark micol <micolmarks@gmail.com> Sent:Wednesday, June 13, 2018 11:31 PM To:Michael Harvey Subject:Letter of support for Toby Church DearMr.Harvey,  IamwritinginreferencetotheapplicationsubmittedbyMr.TobyChurchrequestingareductionoftherequired25foot setbacktoanewsetbackof10feet.Iamtheadjacentpropertyownertothenorthandthewest.Ihaveexaminedhis plansandknowthesitewell.Iwishtooffermysupporttotheproposalforthereasonsoutlinedbelow:  1.ThepropertythatMr.Churchisdevelopinghasbeenvacantfor2yearsandhasbeeninsteadydeclineduringthat period.Theresulthasbeenaconstanteyesoreforthecommunity.Approvingthisexceptionwillallowforthehigh qualityimprovementofthissiteand,byextension,thecharacterofthecommunity.  2.Theproject,asproposed,wouldnotnegativelyimpactmypropertyinanyway.  3.Theproject,asproposed,willincreasethemarketvalueofMr. Church’sproperty,aswellasalladjacentproperties,includingbyown.Furthermore,OrangeCountywillbenefitfroma subsequentincreaseintaxvalues.  4.Mr.Churchhasbeeninbusinessfor30yearsinDurhamCountyandbringstoOrangeCountyareputablebusiness andmuchneededjobs.  IunderstandthatthisproposalisalsosupportedbyJohnCoatesofJCElectricandthereforewelcomedbyotherswho workandliveintheimmediatecommunity.  Sincerely,  MarkS.Micol 51Attachment4 1 Michael Harvey From:James Baxter Sent:Friday, June 29, 2018 5:10 PM To:Michael Harvey Subject:Hillsborough Road Project MichaelHarvey, Therepositioningofthebuilding15feettothewestoftheoriginallysubmittedfootprintwillallowtherequired20foot wideaccessforFireDepartmentaccess,andparallelparkingontheeastsideofthedriveaisle.Thelengthofthedrive aisleislessthan150feet,sothereisnorequirementintheFireCode(tableD103.4)foravehicleturnaround.  JamesBaxter OCBuildingInspections jbaxter@orangecountync.gov 919Ͳ245Ͳ2606o 919Ͳ717Ͳ1056m 52 CASE A-4-18 VARIANCE REQUEST SUBMITTED BY STONE AND CHURCH INVESTMENTS LLC FOR A PARCEL OF PROPERTY LOCATED AT 4916 OLD HILLSBOROUGH ROAD (PIN 0803-30-4715) FINDINGS ORANGE COUNTY BOARD OF ADJUSTMENT As permitted under Section 2.10 Variances of the Orange County Unified Development Ordinance, the Board of Adjustment is authorized to modify or vary regulations of the UDO when strict compliance with the regulation or standard would result in unnecessary hardships upon the subject property. In accordance with the provisions of Section 2.10.3 of the UDO, the BOA may approve a variance in cases where unnecessary hardships would result from carrying out the strict letter of the UDO, when substantial evidence in the official record of the application supports all of the following findings: (A)Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. (B)The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or general public, may not be the basis for granting a variance. (C)The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. (D)The requested variance is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured and substantial justice is achieved. Per Section 2.10.9 of the UDO, the Board ofAdjustment is not empowered to grant a variance without an affirmative finding of fact supported by substantial evidence in the record of the proceedings before the Board. The Board may impose appropriate conditions provided same are reasonable related to the variance request. Per Section 2.12.4 of the UDO the affirmative vote of four of the members of the Board shall be necessary to effect any variation of the Ordinance. In accordance with Section 2.10.8 of the UDO what follows in the Planning Director’s assessment of the application and recommended disposition of the request consistent with the information contained therein. 53 REQUIREMENTUDOSUPPORTING EVIDENCEStaffBOA FINDINGS: In accordance with Section 2.10.3 of the UDO, the Board of Adjustment shall also consider the following before the application for a VARIANCEcan be approved. Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, noreasonable use can be made of the property. Sec 2.10.3 (A) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resultingfrom conditions that are common to the neighborhood or general public, may not be the basis for granting a variance. Sec 2.10.3 (B) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing propertywith knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. Sec 2.10.3 (C) The requested variance is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured and substantial justice is achieved. Sec 2.10.3 (D) 54 After holding a duly advertised public hearing, the Board voted __________ to ________ to (approve) (deny) the variance request as submitted by the Applicant. ___________________________ __________________ Chair Orange County Board of Adjustment Date 55 56 ThisPageLeftIntentionallyBlank ORANGE COUNTY BOARD OF ADJUSTMENT AGENDA ITEM ABSTRACT CASE A-3-18 Meeting Date:July 9, 2018 Agenda Item No.A-3-18 SUBJECT: CASE A-3-18: Appeal of a Decision made by the Zoning Officer DEPARTMENT: Planning and Inspections ATTACHMENTS: INFORMATION CONTACT: Michael D. Harvey, Planner III(919) 245-2597 Craig Benedict, Director (919) 245-2575 PURPOSE:To receive subpoenaed material associated with the review of an appeal application concerning the status of a structure located on a parcel of property, identified utilizing Orange County Parcel Identification Number (PIN) 9729-50-7168, owned by Southeast Property Group LLC (a.k.a. Wild Flora Farm) care off Ms. Kara Brewer. BACKGROUND:At its May 7, 2018 regular meeting the Board of Adjustment issued subpoenas, based on requests submitted by the applicant’s attorney, to the following entities: 1. Southeast Property Group, LLC, 2. Wild Flora Farms, LLC, 3. The Barn of Chapel Hill, LLC, 4. Kara Brewer a/k/a Kara M. Brewer, and 5. Chris Brewer requesting information submitted/caused to be submitted to the North Carolina Department of Revenue and/or to Orange County regarding alleged eligibility/compliance with the provisions of N.C.G.S. 153-340, 105-164.13E(a), 105-277.3. As a reminder the appeal is related to an October 12, 2017 determination made by staff a structure located on the aforementioned property is classified as a bona fide farm purpose pursuant to the provisions of NCGS 153A-340 (b) (2a) and is not subject to the land use regulations as embodied within the Orange County Unified Development Ordinance (UDO). The Board of Adjustment is scheduled to receive subpoenaed materials. The Board of Adjustment is scheduled to continue the hearing at its August 13, 2018 regular meeting 57