HomeMy WebLinkAboutAgenda - 5-a - Unified Development Ordinance (UDO) Table of Permitted Uses 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: April 16, 2019
Action Agenda
Item No. 5-a
SUBJECT: Unified Development Ordinance (UDO) Table of Permitted Uses
DEPARTMENT: Planning and Inspections
ATTACHMENT(S): INFORMATION CONTACT:
1. April 16, 2019 Public Hearing Legal Michael D. Harvey, Planner III, (919) 245-2597
Advertisement Craig Benedict, Director, (919) 245-2575
2. Summary of Changes
3. Project Fact Sheet and Frequently
Asked Questions
4. Memo from Staff Attorney on Burden of
Persuasion Language
5. Excerpt of Draft Planning Board Minutes
from March 3 and 20, 2019 Meetings
and Signed Statement of Consistency
6. Statement of Consistency
7. UDO Text Amendment Package
7-a — An Ordinance Amending the
Unified Development Ordinance
Of Orange County (Also available
electronically at:
http://www.orangecountync.gov/D
ocu mentCenter/View/7012)
7-b — UDO Amendment Package Notes
(Also available electronically at:
http://www.orangecountync.gov
/DocumentCenter/View/7012)
(UNDER SEPARATE COVER)
7-c — Strike through/Delete/Underlined/
Highlighted Text Amendments
Pages from the UDO
— ONLY AVAILABLE
ELECTRONICALLY AT:
http://www.orangecountync.go
v/DocumentCenter/View/7012)
PURPOSE: To hold a public hearing, receive the Planning Board recommendation, and take
action on Planning Director initiated Unified Development Ordinance (UDO) text amendments to
the tables of permitted land uses and other sections as needed.
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Specifically, the amendment collapses existing tables of permitted uses as contained in
Section(s) 5.2.1 (general use zoning districts), 5.2.2 (EDD general use zoning districts), and
5.2.3 (Conditional Zoning districts) into a centralized table in order to clarify permitted and
prohibited land uses consistent with recent court decisions. The amendment also updates
existing regulations and addresses formatting issues to ensure legal sufficiency.
BACKGROUND: This project was initiated to address the findings of the State Supreme Court
in Byrd versus Franklin County related to the delineation of prohibited land uses. The court, in
rendering its decision, placed the onus on local governments to `spell out' what land uses were
allowable and prohibited within their respective jurisdictions. A copy of the Court's ruling in the
Franklin County case can be viewed at: https://www.nccourts.gov/documents/appellate-court-
opinions/byrd-et-al-v-fanklin-county.
Work on the project began in the spring of 2017 with staff focusing on collapsing the existing
tables and creating an `exhaustive list' of permitted and prohibited land uses. This was to
address concerns from the Planning Director, Director of Economic Development, and several
BOCC members over ensuring developers were readily able to `verify' if a proposed land use
was permitted within the County.
In August 2017, the BOCC held a work session with Planning staff and the County Attorney to
review the status of this project and provided the following direction:
1. Abandon the concept of an exhaustive list of allowable land uses;
2. Collapse, where feasible, similar land uses into single categories;
3. Review existing definitions to eliminate the reliance on `example land uses' with
respect to outlining what constitutes a permitted land use within that category; and
4. Consolidate and eliminate, where feasible, duplicative references to regulations within
the UDO.
The Planning Board Ordinance Review Committee (ORC) reviewed this item at several ORC
meetings beginning in January 2017. Agenda materials from these various meetings can be
viewed at: http://www.co.orange.nc.us/AgendaCenter/Planning-Board-26.
A total of four open house meetings were held soliciting public input and comment on the
proposed amendments. Meetings were held on the evenings of July 25 and 27, 2017 and
August 23 and 27, 2018. Notices of the meetings were placed on the County website, and
further advertised through press releases issued through the County's Community Relations
Department.
Staff finalized an amendment package (Attachment 7 including 7-a, 7-b and 7-c) that:
a. Collapses existing tables as contained in Section(s) 5.2.1 (general use zoning
districts), 5.2.2 (EDD general use zoning districts), and 5.2.3 (Conditional Zoning
districts) into a centralized permitted use table.
b. Collapses similar land uses into single land use categories.
STAFF COMMENT: Current regulations, for example, define retail land uses
differently within Section(s) 5.2.1 and 5.2.2.
There are different methodologies employed to denote various permitted retail
land uses in both sections that appear to contradict one another.
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All retail land uses have been collapsed into a single category versus listing out
individual uses. Staff has also established development criteria within Article 5 to
address the impacts of such development consistent with existing regulations (i.e.
building size limits, operational requirements, screening, etc.).
The result is a streamlined table and a concise description of development
requirements.
c. Modifies Article 10 Definitions of the UDO to incorporate new and/or revised
definitions of various land uses, consistent with the proposed new table.
d. Incorporates modifications to the Economic Development Hillsborough (EDH) districts
as discussed by the BOCC late in 2016.
e. Includes processes allowing for `reasonable accommodations' as requested by the
County Attorney's office. As part of this request, staff added language clarifying the
burden of proof for variance, interpretation, and special use permit applications
including adding references to an applicant's `burden of persuasion'.
Attachment 1 contains the legal advertisement for the April 16, 2019 public hearing. Attachment
2 contains a summary of the proposed changes for reference purposes. Attachment 3 is a
project fact sheet, including frequently asked questions, concerning the impacts of this
amendment package.
Analysis: As required under Section 2.8.5 of the UDO, the Planning Director is required to: `...
cause an analysis to be made of the application and, based upon that analysis, prepare a
recommendation for consideration by the Planning Board and the Board of County
Commissioners'.
The amendments are necessary to address the legal sufficiency of the UDO with respect to the
findings of Byrd versus Franklin by spelling out allowable and prohibited land uses. Staff is
eliminating the unnecessarily repetitive, and often confusing, delineation of allowable land uses
by creating a central table of permitted uses and has combined similar land uses into single
categories to ensure uniformity with respect to application of development criteria and
permitting.
Planning Board Recommendation: The Board began review of the finalized amendment
package at its March 6, 2019 regular meeting, with continued discussion at a special meeting
held on March 20 to allow for additional review on Attorney recommended language associated
with the burden of persuasion for certain processes (i.e. variances, interpretations, and special
use permits). The Attorney prepared a memo for Board review, which is contained in
Attachment 4.
At the March 20 special meeting, the Planning Board voted 7-1 to recommend approval of the
amendments with the elimination of language in Section(s) 2.10.3, 2.11.3, and 5.3.2 establishing
a `burden of persuasion' for those applying for a variance, interpretation, or special use permit.
In recommending approval, members indicated they were not comfortable keeping language
referencing an applicant's `burden of persuasion' as they were unpersuaded by the County
Attorney's arguments the language was necessary. An excerpt of the minutes from the March 3
and 20, 2019 meetings, as well as the Planning Board's approved Statement of Consistency,
are contained within Attachment 5.
Planning Director Recommendation: The Planning Director recommends approval of the
Statement of Consistency (Attachment 6) and the Ordinance amending the UDO (Attachment 7
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including 7-a, 7-b and 7-c) which includes the language within Section(s) 2.10.3, 2.11.3, and
5.3.2 establishing a `burden of persuasion'. Staff is recommending keeping language, as
recommended by the County Attorney, concerning the `burden of persuasion' in Section(s)
2.10.3, 2.11.3, and 5.3.2.
The Director believes the language is necessary to ensure the legal sufficiency of the UDO, as
indicated by the County Attorney, by spelling out an applicant's obligations when applying for a
variance, interpretation, and special use permit.
It should be noted that Attachment 7 consists of three parts, with Attachments 7-a and 7-b
attached to this abstract and also available electronically at:
http://www.orangecountync.gov/DocumentCenter/View/7012.
Attachment 7-c containing the Strikethrough/Delete/Underlined/ Highlighted Text
Amendments pages from the UDO is only available electronically at
http://www.orangecountvnc.gov/DocumentCenter/View/7012.
In addition, as noted in the Public Hearing Notice (Attachment 1), the full text of the
amendments pages and other information has been available from the Orange County Planning
Department.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to
this item:
• GOAL: ESTABLISH SUSTAINABLE AND EQUITABLE LAND-USE AND
ENVIRONMENTAL POLICIES
The fair treatment and meaningful involvement of people of all races, cultures, incomes
and educational levels with respect to the development and enforcement of
environmental laws, regulations, policies, and decisions. Fair treatment means that no
group of people should bear a disproportionate share of the negative environmental
consequences resulting from industrial, governmental and commercial operations or
policies.
FINANCIAL IMPACT: Consideration and approval will not create the need for additional funding
for the provision of County services. Costs for the required legal advertisement for the text
amendment were paid from FY2018-19 Departmental funds budgeted for this purpose. Existing
Planning staff included in the Departmental staffing budget will accomplish the work required to
process these amendments.
RECOMMENDATION(S): The Manager recommends the Board:
1. Receive the proposed amendments to the UDO as detailed in this abstract and
attachments;
2. Conduct the public hearing and accept comment on the proposed amendments;
3. Close the public hearing. (Note that, because this is a legislative decision, additional
comments at a later date are permitted);
4. Approve the Statement of Consistency (Attachment 6);
5. Adopt the Ordinance as recommended by the Planning Director (Attachment 7
including 7-a, 7-b and 7-c —
http://www.orangecountvnc.gov/DocumentCenter/View/7012), keeping language
within Section(s) 2.10.3, 2.11.3, and 5.3.2 establishing the `burden of persuasion'
consistent with the recommendation of the County Attorney.
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Attachment 1
NOTICE OF PUBLIC HEARING
ORANGE COUNTY BOARD OF COMMISSIONERS
A public hearing will be held at the Southern Human Services Center, 2501 Homestead Road, Chapel
Hill, North Carolina, on Tuesday, April 16, 2019 at 7:00 PM for the purpose of giving all interested
residents an opportunity to speak for or against the following items:
1. Unified Development Ordinance Text Amendments: In accordance with the provisions of
Section 2.8 Zoning Atlas and Unified Development Ordinance Amendments of the Unified
Development Ordinance, the Planning Director has initiated amendments to the Unified
Development Ordinance (UDO) to:
a. Combine the three existing tables of permitted uses for general use zoning districts, EDD
general use zoning districts, and conditional zoning districts into a centralized permitted use
table and amend other sections as necessary as a result of the combination;
b. Modify Article 10 Definitions to incorporate new and/or revised definitions of various land
uses, consistent with the proposed new table;
c. Incorporate modifications to the Economic Development Hillsborough (EDH) zoning
districts; and
d. Include processes allowing for `reasonable accommodations'.
The following Sections of the UDO are proposed for amendment:
2.10 Variances
2.11 Interpretations
2.23 Reasonable Accommodation (new section)
3.8 Conditional Districts
5.1.1 Prohibited Uses
5.1.4 Conditional Uses
5.1.5 Key to Permitted Use Table (new section)
5.2. Table of Permitted Uses
5.3.2 Special Uses
5.4 Standards for Temporary Uses
5.5 Standards for Residential Uses
5.6 Standards for Commercial Uses (to also be renamed)
5.7 Standards for Recreational Uses
5.8 Standards for Childcare & Educational Facilities (to also be renamed)
5.9 Standards for Utilities
5.10 Standards for Telecommunication Facilities
5.11 Standards for Waste Management Facilities
5.12 Standards for Extractive Uses
5.13 Standards for Agricultural Uses
5.14 Standards for Manufacturing, Assembly & Processing (to also be renamed)
5.15 Standards for Manufacturing, Assembly, Processing, and Distribution Uses — Other
than Food (new section)
5.16 Standards for Automotive/Transportation Related Uses
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5.17 Standards for Medical Uses
5.18 Standards for Miscellaneous Uses (to also be renamed)
5.19 Standards for Government Uses (also new section number)
5.20 Standards for Office and Financial Service Uses (also new section number)
5.21 Standards for Retail Uses (also new section number)
5.22 Standards for Miscellaneous Uses (also new section number)
6.9.7 Off-Street Parking Requirements
10.1 Definitions
The amendments are necessary to address the legal sufficiency of the UDO with respect to the
findings of NC Supreme Court case Byrd v. Franklin County by spelling out allowable and
prohibited land uses. Additionally, the amendments seek to eliminate the unnecessarily repetitive,
and often confusing, delineation of allowable land uses by creating a central table of permitted
uses and combining similar land uses into single categories to ensure uniformity with respect to
application of development criteria and permitting.
The Orange County Planning Board, which began review of this item at its March 6, 2019 regular
meeting, continued discussion at a special meeting on March 20. At this special meeting, the
Planning Board voted 7-1 to recommend approval of the amendments with the elimination of
language in Section(s) 2.10.3, 2.11.3, and 5.3.2 establishing a `burden of persuasion' for those
applying for a variance, interpretation, or special use permit. Agenda materials from this meeting,
including the recommended amendment language, can be viewed at:
http://www.orangecountync.gov/AgendaCenter/ViewFile/Agenda/_03202019-826
Purpose: To review the item and receive public comment on the proposed amendments.
Substantial changes in items presented at the public hearing may be made following the receipt of
comments made at the public hearing. Accommodations for individuals with physical disabilities can
be provided if the request is made to the Planning Director at least 48 hours prior to the Public
Hearing by calling one of the phone numbers below. The full text of the public hearing items may be
obtained no later than April 12, 2019 on the County website www.orangecountync.gov at the County
Commissioners Agendas link (http://www.orangecountync.gov/1707/BOCC-Agendas).
Information is also available now from the Orange County Planning Department (contact information
below).
Questions regarding the proposals may be directed to the Orange County Planning Department
located on the second floor of the County Office Building at 131 West Margaret Lane, Suite 201,
Hillsborough, North Carolina. Office hours are from 8:00 a.m. to 5:00 p.m. Monday through Friday.
You may also call (919) 245-2575 or 245-2585 and you will be directed to a staff member who will
answer your questions or you may e-mail questions to plan ningdept orangecountync.gov.
PUBLISH: The Herald Sun News of Orange
April 3, 2019 April 3, 2019
April 10, 2019 April 10, 2019
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Attachment 2
SUMMARY OF TABLE OF PERMITTED USES TEXT CHANGES:
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
2.10 Variances 1. Section 2.10.2 (B) (4) (Application County Attorney was concerned over the legal
Requirements) — updating references to sufficiency of LIDO without language outlining
renumbered UDO section (changing what the burden of proof of an applicant for a
reference from Section 2.10.3 to Section variance was.
2.10.4);
2. Adding a new Section 2.10.3 entitled 'Burden Staff has added this language, which includes
of Proof' including language establishing an references to an applicant's `burden of
applicant's burden of persuasion; persuasion' with respect to demonstrating a
variance request complies with the various
3. Existing Section numbers being re-numbered parameters of LIDO, allowing same to be
to accommodate a new Section 2.10.3; issued.
4. Renumbered Section 2.10.5 (Additional This language was added at the
Criteria for Authorized Variances — Special recommendation of the County Attorney.
Flood Hazard Areas) - updating references to
renumbered UDO section (changing This addition causes a re-numbering of
reference from Section 2.10.3 to Section existing section(s) and required updating of
2.10.4); various section references.
5. Renumbered Section 2.10.6 (E) (1)
(Additional Criteria for Authorized Variances
— Watershed Protection Overlay District) -
updating references to renumbered UDO
section (changing reference from Section
2.10.5 to Section 2.10.6);
6. Renumbered Section 2.10.10 (A) (Findings of
Fact) - updating references to renumbered
LIDO section (changing reference from
Section 2.10.3 to Section 2.10.4).
2.11 Interpretations 1. Adding a new Section 2.11.3 entitled 'Burden County Attorney was concerned over the legal
of Proof' including language establishing an sufficiency of LIDO without language outlining
applicant's burden of persuasion; what the burden of proof of an applicant for an
2. Existing Section numbers being re-numbered interpretation was.
to accommodate a new Section 2.11.3. Staff has added this language, which includes
references to an applicant's `burden of
persuasion' with respect to demonstrating an
interpretation request complies with the
various parameters of UDO, allowing same to
be issued (i.e. overturn a staff decision).
This language was added at the
recommendation of the County Attorney.
This addition causes a re-numbering of
existing section(s) and required updating of
various section references.
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SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
2.23 Reasonable 1. Elimination of existing regulations Regulations governing the
Accommodation concerning development of a review/approval of a daycare in a
`Daycare Center in a Residence'; residence have been moved to Article 5.
2. Renaming Section to `Reasonable Land use standards do not belong in a
Accommodation'; section intended to identify development
review processes.
3. Adoption of new standards consistent This section is being re-purposed to
with direction from the County address a concern from the Attorney
Attorney. over making reasonable accommodation
for persons meeting Federal definition(s)
of being disabled or handicapped.
Per applicable State and Federal Law,
local governments are required to make
reasonable accommodation to land use
regulations/policies to accommodate
disabled or handicapped persons so they
are not denied reasonable use of
property.
Proposed language addresses this
concern and meets legal sufficiency
consistent with direction from the County
Attorney.
Section 3.8 Conditional Use Section references have been updated. Amendment is necessary to ensure
Districts Section 5.1.4 (existing language) is being proper reference to renumbered section
changed to reference the new numbering of the UDO.
scheme of the provision (i.e. Section 5.1.3—
the new language).
Section 5.1.1 Prohibited 1. Eliminating the word `not'; The language is being modified to
Uses 2. Adding language `but not denoted' ensure consistency with Byrd versus
Franklin.
Prohibited uses are now listed within the
table and are not identified as being
allowed for development (i.e. there will
be no symbol indicating the use is
permitted in various zoning districts).
Section 5.1.1 is being modified to ensure
consistency with the revised table
construct.
9
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Section 5.1.4 (D) (1) Section references have been updated. Amendment is necessary to ensure
Conditional Uses Section 5.1.4 (existing language) is being proper reference to renumbered section
changed to reference the new numbering of the UDO.
scheme of the provision (i.e. Section 5.1.3—
the new language).
Section 5.1.5 Key to 1. Creating a new section outlining the The new section is necessary to
Permitted Use Table new symbology of the table of establish the meaning of proposed
permitted uses, specifically: symbols within the revised table of
(Page 5-3 of the UDO) a) Asterisk (*) indicates permitted land uses.
permitted by right;
b) A delta (A) indicates permitted
subject to compliance
additional standards;
c) An 'A' indicates Class A
Special Use Permit required;
d) A `B' indicates Class B
Special Use Permit required;
e) `C' indicates Conditional Use
Permit required;
f) No symbols indicate land use
is prohibited within that given
district.
Section(s) 5.2.1 ; 5.2.2 ; Existing tables for general use, economic All land uses for general use, economic
5.2.3 (table of permitted development, and conditional zoning development, and conditional zoning
uses) districts being deleted. districts being combined into central
table.
New Table: 1. Updating symbols (i.e. use of delta (A) The proposed amendments are
to denote land uses requiring designed to standardize use of symbols
Agricultural Uses land use adherence to additional development as it relates to development review
category standards); processes and requirements.
2. Deleting of symbols that are now Symbols establishing development
contained in other sections of Article 5 standards (i.e. symbols indicating a `use
(i.e. `--') may not be permitted as a Conditional
3. Combining of Composting Operation Use District'and/or a `use is allowed as
(with and without grinding) into a more than one principal use if located on
single land use category) a bona fide farm) are being eliminated
with required language located
throughout Article 5 to ensure legal
sufficiency.
Regulations governing Composting
Operations (with and without grinding)
have been combined (i.e. adherence to
specific conditions). There was no
reason to have two separate land use
categories.
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SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
New Table: 1. Updating of symbols; Staff is eliminating the word `child' to
2. Name of land use category changed ensure the category encompasses care
Renamed Care and for all.
Educational Facility land from `Child Care and Educational
use category Facility Uses'to `Care and Language added to Article 5 to address
Educational Facility Use'; distinctions from a permitting standpoint,
3. Change permitting of Care Facilities in where necessary(i.e. adolescent, child,
ED13-1 and EDB-2 as a permitted use adult). This is part of the direction staff
versus `special use' ; has received by the BOCC to
consolidate land uses where possible.
4. Add Care Facilities land use to the Care Facilities' is recommended to be
EDH-3 general use zoning district as allowed within EDB-1 and EDB-2 as a
a permitted use ; permitted use versus through approval of
5. Language indicating land use is only a special use permit. This will ensure
`child care' has been eliminated to consistency with other EDD general use
ensure use captures all (i.e. zoning district processes;
adolescents, children, adults, etc.); There is no need to reference land uses
6. Various land uses combined into a in a plural sense. So `Libraries' is
single category; becoming `Library'
7. Tense of land use categories have Several `school' activities dealing with
been updated (plural to single); the performing arts, sports, and
8. The Non-profit Educational recreation activities have now been
Cooperative land use is being combined into a single land use
eliminated. There are no such category.
operations currently in the County and Staff has recommended renaming
the use appears to have no 'Schools:Elementary, Middle, and
relevance. Secondary'to `Schools Preparatory'.
9. Allow Schools Performing Arts, Expand where office and financial
Sports, and Recreation within the service land uses are permitted,
EDH-4 general use zoning district. including specific focus on the
Hillsborough EDD districts, consistent
with BOCC direction.
New Table: 1. Updating of symbols; Staff is combining several similar land
2. Consolidate government land uses uses into a single category consistent
Government Uses land use with direction staff has received to
into a single land use category and
category avoid exhaustive list; consolidate land uses, where possible, to
avoid a complicated, exhaustive, table of
3. Split out `detention center'and permitted uses.
`military installation'to allow for Language added to Article 5 to address
different review standards and limit distinctions from a permitting standpoint,
which district(s) such uses are where necessary.
permitted within.
Identified land uses have been kept
separate to ensure potential impacts are
addressed through site plan review
process.
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SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
New Table: 1. Update of symbols; Staff is combining several similar land
2. Rename existing land use category uses into a single category consistent
Manufacturing, Assembly, (i.e. Manufacturing, Assembly, with direction staff has received to
Processing and Distribution Processing Uses)to include consolidate land uses where possible to
Uses - Food appropriate language identifying avoid a complicated, exhaustive, table of
`what' activities will be allowed; permitted uses.
3. Provide a distinction between food Language added to Article 5 to address
manufacturing land uses versus other distinctions from a permitting standpoint,
non-food manufacturing operations; where necessary.
4. Identify those food manufacturing land Identified land use categories (i.e. winery
uses that require heightened permit and microbrewery) have been combined
review or are simply not permitted. to ensure consistency with BOCC
direction and avoid unnecessary
As part of this proposal Animal duplication. Regulations for each activity
Slaughtering and Processing(i.e. not (i.e. (production only, with minor events,
on a farm); Seafood Preparation and with major events) are now contained in
Packaging(i.e. not on a farm); Article 5 for each land use rather than
Tobacco Processing(i.e. not on a have separate land uses outlining same.
farm)would not be permitted for
development within the County; Expand where office and financial
5. Allow for uses within the EDH-4 and service land uses are permitted,
EDH-5 general use zoning districts; including specific focus on the
Hillsborough EDD districts, consistent
6. Consolidate existing land uses such with BOCC direction.
as Winery(production only, with minor
events, with major events) and
Microbrewery(production only, with
minor events, with major events) into
single land use categories.
New Table: 1. Update of symbols; Staff is combining several similar land
2. Rename existing land use category to uses into a single category consistent
Manufacturing, Assembly, provide a distinction between food with direction staff has received to
Processing and Distribution manufacturing land uses versus other consolidate land uses where possible to
Uses - Other non-food manufacturing operations; avoid a complicated, exhaustive, table of
permitted uses.
3. Allow for additional uses within the Language added to Article 5 to address
EDH-4 and EDH-5 zoning districts; distinctions from a permitting standpoint,
4. Identify those manufacturing land where necessary.
uses that require heightened permit
review or are not permitted. As part of Identify those land uses that require
this proposal Chemical Manufacturing heightened level of permit review, are
and Processing— Other;Firearm only allowed in identified districts, or are
Manufacturing and Assembly; prohibited.
Leather Hide Tanning and Finishing Expand where office and financial
(i.e. not on a farm) ; Petroleum and service land uses are permitted,
Coal Product Processing; Pulp, including specific focus on the
Paper, and Paperboard Mills would Hillsborough EDD districts, consistent
not be permitted. with BOCC direction.
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SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
New Table: 1. Updating of symbols; Staff is combining several similar land
2. Consolidate medical land uses (i.e. uses into a single category consistent
Medical Uses doctor, dentist, psychiatrist, etc.) into with direction from the BOCC.
a single land use category and avoid There is no separate/distinct impact
exhaustive list; between various medical offices (i.e.
3. Create distinctions between a podiatrist, general practitioner,
veterinary clinic(i.e. no overnight pediatrician, dentist, etc.) requiring they
accommodation of animals requiring be listed separately within the table of
care)versus a veterinary hospital(i.e. permitted uses.
possible overnight accommodation of Language added to Article 5 to address
animals requiring care); distinctions from a permitting standpoint,
4. Establish distinction between hospital where necessary(i.e. size limits on
and other medical land uses. offices, services offered—onsite lab or
not, etc.).
Hospitals are required to adhere to
specific requirements under State law to
be permitted/developed. Creating the
distinction is necessary to address this
compliance point in State law.
New Table: 1. Updating of symbols; Staff is combining several similar land
2. Consolidate office land uses (i.e. uses into a single category consistent
Office and Financial Service lawyer, architect, real estate, with direction from the BOCC.
Uses contractor with no on-site storage of There is no separate/distinct impact
equipment, etc.) into a single land use between various professional offices
category and avoid exhaustive list; requiring they be listed separately within
3. Allow for additional uses within the the table of permitted uses.
EDH-4 and EDH-5 zoning districts; Language added to Article 5 to address
4. Create distinctions between land uses distinctions from a permitting standpoint,
to ensure development concerns are where necessary.
addressed. Specifically staff is Contractor's office with on-site storage is
recommending creating a distinction being treated differently to ensure there
between a building contractor's office is adequate buffering/screening of
with and without on-site storage. storage areas.
Further staff is recommending Expand where office and financial
Pawnshop or Payday Loan operations
be prohibited. service land uses are permitted,
including specific focus on the
Hillsborough EDD districts, consistent
with BOCC direction.
13
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
New Table: 1. Updating of symbols; Retreat Centers and Theaters are
2. Move `retreat center'to the proposed typically considered Assembly land uses.
Recreational Uses new Assembly land use category; As part of this amendment package they
are being moved to the appropriate land
3. Eliminate `public'from the `Park' land use category to ensure consistency.
use category; Existing regulations governing
4. Move `theater'to the proposed new development of Retreat Centers are
Assembly land use category. being relocated from within Article 5 as
well.
There is no separate/distinct impact
between a public or private park
requiring different permit review, which is
why the word `public' is being eliminated.
New Table: 1. Updating of symbols; The term `mobile home' applies to
2. Change reference from `mobile' structures built before July 15, 1976.
Residential Uses home to `manufactured'home; Structures built after this date are
considered `manufactured homes'. Staff
3. Update language to ensure is changing the reference to be
consistency with defined terms (i.e. consistent with what is permitted.
Family Care Facility versus Family New Group Home land use added for
Care Home); those instances where 6 to 15 people
4. Adding of new land use category choose to live together but do not require
`Group Home'; a State license as with a Group Care
5. Combining various care facilities (i.e.
Facility.
rehab center, nursing home, etc.) Staff is combining several similar land
into Health and Personal Care uses into a single category consistent
Facility; with previous direction from the BOCC.
6. Eliminate the `Dormitory, Fraternity, There is no separate/distinct impact
and Sorority' land use; between various elder care facilities
7. Adding the Temporary Use of requiring they be listed separately within
Residential Mobile Unit to the table. the table of permitted uses. Language
added to Article 5 to address distinctions
from a permitting standpoint, where
necessary.
The `Dormitory, Fraternity, and Sorority
land use is being deleted as it conflicts
with other residential land uses denoted
within the section.
14
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
New Table: 1. Updating of symbols; Staff as modified existing definitions of
2. Elimination of unnecessary and motor vehicle land uses to eliminate
Automotive/Transportation existing conflicts. As a result
Uses confusing language within various superfluous language is being eliminated
Motor Vehicle land uses (i.e. repair from the table.
(body shop) ; garage ; (new and
used) ; stations ; surface and Creation of parking lots is being listed as
structure ; etc.); a permitted use. Staff is eliminating
3. Combining Bus and Rail Passenger references to structural or surface
Shelter land uses into single use Parking as this is redundant language.
category; Regardless of the type of parking (i.e.
surface/structure)the activity is what we
4. Moving Petroleum Products Storage are regulating.
and Delivery to the Service land use Staff has combined similar land uses into
category; single use categories. There is no
5. Elimination of Airports as an distinction between a bus and rail
allowable use in the RB, AR, R-1 passenger shelter.
general use zoning districts. Staff is Petroleum Products Storage and
proposing the use only allowed Delivery is not a transportation related
within the 1-1, 1-2, and 1-3 general land use and is being moved.
use zoning districts (new allowance
recommended by staff). Airports have been deemed
inappropriate for development within
residential general use zoning districts.
Staff is recommending they only be
allowed in Industrial general use zoning
districts (still subject to Class A SUP).
New Table: 1. Updating of symbols; Staff has combined the various separate
2. Consolidation of individual retail retail land uses listed within the three
Retail Uses operations into single land use existing tables into a single land use
category; category.
3. Keeping of the Country Store land There is no separate/distinct impact
use category. between various retail land uses
requiring they be listed separately within
the table of permitted uses.
Language added to Article 5 to address
distinctions from a permitting standpoint,
where necessary(i.e. size of building,
etc.).
Country Store is being kept in order to
avoid potential impacts to previously
reviewed/approved agricultural service
amendments.
15
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
New Table: 1. Updating of symbols; Staff has combined several service
2. Consolidation of individual service related land uses into a single land use
Service Uses related land uses into single land use category.
category; Language added to Article 5 to address
3. Listing various service uses (i.e. distinctions from a permitting standpoint,
Body Art, Eating and Drinking where necessary(i.e. size of building,
Establishment, etc.) within the table use of outdoor storage, etc.).
to ensure proper distinction of Several service uses `split out' from
development requirements (i.e. central service category so they are
where they are and are not permitted processed consistent with existing
for development); development standards (i.e. cemetery,
4. Consolidation of various overnight funeral home, garden center, etc.).
accommodations into new land use Various overnight accommodation land
categories: uses (i.e. hotel, motel, motor court, bed
a. Short Term Rental Small — Host and breakfast, bed and breakfast inn,
Occupied(Dwelling occupied by a country inn, etc.)were combined to avoid
host providing up to three conflicts and unnecessary duplication of
guestrooms for overnight rental or efforts.
lease); Proposed regulation(s)are consistent
b. Short Term Rental Large — Host with existing standards governing Bed
Occupied(Dwelling occupied by a and Breakfast ; Bed and Breakfast Inn ;
host providing more than three Country Inn ; Hotels, etc.
guestrooms for overnight rental or Number of allowable bedrooms
lease); consistent with current regulations.
c. Short Term Rental — Non Host
Occupied (Dwelling providing
guestrooms for overnight rental or
lease not occupied by a host).
Land Use Category 1. Updating of symbols; State law was amended to include
2. Adding of new land use `ham radio Provisions allowing for erection of ham
Telecommunication Uses tower'; radio towers under certain height limits.
Land Use Category 1. Updating of symbols; Expand allowable land uses consistent
Utilities Uses
2. Updating permit requirements for with BOCC direction.
elevation storage tanks to allow them
within the EDH-4 and EDH-5 general
use zoning districts;
Land Use Category 1. Updating of symbols;
Waste Management Uses 2. Consolidate similar land uses to
avoid repetition.
16
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Land Use Category 1. Updating of symbols; The UDO currently breaks down and lists
2. Consolidate similar land uses to out wholesale trade uses for durable and
Wholesale Trade Uses avoid unnecessary repetition; non-durable goods.
3. Allow land uses within the EDH-4 These land uses were permitted in the
and EDH-5 general use zoning same fashion thereby eliminating the
districts. need for a detailed list. Staff has simply
recommended combining the uses into a
single use category.
Expand allowable land uses consistent
with BOCC direction, focusing on the
Hillsborough EDD districts.
New Land Use Category 1. Updating of symbols; In attempting to simplify the UDO, staff
2. New definition of terms for various created a new land use category to
Assembly assembly land uses to create combine `assembly' uses.
distinctions: Assembly uses are now broken down on
a)Assembly: A land use providing the nature of their operation, specifically:
space, indoors or outdoors, allowing . Gathering of members of a specific
for the congregation of persons for organization for assembly purposes;
the purpose of observing, listening,
or engaging in a service, • Gathering of the general public for
performance, or activity. assembly purposes operated as a
b)Club or Lodge: An assembly land non-commercial activity;
use, operated by a non-profit group, . Gathering of the general public for
for members and guests. assembly purposes focused on
c)Community Center: An assembly religious observation; and
land use, operated by a non-profit . Gathering of the general public for
group, as a non-commercial activity. commercial activities.
d)Place of Worship: An assembly land Expand allowable land uses consistent
use primarily providing meeting with BOCC direction.
areas for the support or religious
activities, services, and study.
e)Retreat Center: An assembly land
use operated as a commercial
activity.
3. Retreat Center and Theater moved
from Recreation Uses to this land
use category;
4. Allow Retreat Center in the NC-2;
CC-3; GC-4; EDB-1; EDE-1; and
EDH-4 general use zoning districts;
5. Community Center is now permitted
in EDB-1 and EDE-1 as permitted
use versus SUP.
17
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Land Use Category Majority of uses relocated into different
land use categories consistent with new
Miscellaneous Uses format.
Section 5.3.2 Special Uses Modification of Section 5.3.2 (A) (1)to add To address legal sufficiency concerns,
language concerning the `burden of staff is adding language to ensure proper
persuasion'for special use permit identification of applicant requirements
applications. associated with the processing of a
special use permit.
Section 5.4.1 Yard Sale and Addressing legal sufficiency by
Section 5.4.2 Temporary Eliminating contradictory language to eliminating redundant and unnecessary
Fund Raising Activity ensure uniformity within the UDO related language associated with the
to the use of headers. identification of`standards of evaluation'
for the identified land uses.
Section 5.4.3 Special 1. Updating existing language to ensure Addressing legal sufficiency of the UDO
Events property format with other sections of by eliminating redundant and
the UDO (i.e. adding `Use Standards' unnecessary language, ensuring
heading ; `Standards of Evaluation' ; consistent use of header references
`Submittal Requirements' ; etc.); throughout the document, and ensuring
2. Moving of regulations currently regulations are moved from definitions
contained in definitions to the into the actual `standards' associated
appropriate section of the UDO (See with a specific land use.
Section 5.4.3 (B) (1) (a))to ensure County Attorney has indicated staff does
we are properly identifying an not have discretion to wave or modify the
enforcement standard; UDO. Offending language being
3. Elimination of redundant language eliminated.
(i.e. plot plan submittal requirements
are already addressed in the UDO Special Events are not allowed through a
and do not need to be repeated SUP process. So the language is
here); redundant and unnecessary.
4. Elimination of references to a special
use permit (there is no special use
permit required under the current
ordinance).
Section 5.4.4 Temporary Eliminating contradictory language to Addressing legal sufficiency by
Use of a Residential Mobile ensure uniformity within the UDO related eliminating redundant and unnecessary
Home;Section 5.4.5 to the use of headers. language associated with the
Buildings for Temporary identification of`standards of evaluation'
Uses;Section 5.5.1 for the identified land uses.
Accessory Structures and
Uses
New Section 5.5.2 Adding language referencing what To address legal sufficiency concerns,
Campgrounds provisions govern the development of a staff is adding language to ensure proper
campground. identification of permit requirements.
18
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Section 5.5.3 Efficiency 1. Renumbering of UDO sections; Addressing legal sufficiency by
Apartment; Section 5.5.4 2 Eliminating contradictory language to eliminating redundant and unnecessary
Home Occupations; language associated with the
Section 5.5.5 Home Parks ; ensure uniformity within the related to the use of headers.. identification of`standards of evaluation'
Section 5.5.6 Existing for the identified land uses.
Home Parks; Section 5.5.7
Mobile Homes on Individual
Lots; Section 5.5.8 Group
Care Facility
New Section 5.5.9 Group 1. New regulation designed to address Use shall be processed in a similar
Home 6 to 15 people choosing to live fashion to a Group Care Facility(i.e.
together BUT is not a licensed Group Class B Special Use Permit).
Care Facility as defined in the UDO;
2. Updating existing language to ensure Purpose of amendment is to provide
property format with other sections of flexibility with respect to housing BUT
the UDO (i.e. `Use Standards' require same level of permit review as
heading ; `Standards of Evaluation' ; similar facilities in the County allowing for
`Submittal Requirements' ; etc.); 6 to 15 people living together.
3. New land use defined as: A Amendment designed to eliminate
residential living arrangement existing discrepancy in living situation
providing housing for six to 15 and ensure enforcement of UDO
unrelated individuals other than a standards.
Group Care Facility
New Section 5.5.10 Health Catch all category for care facilities (i.e.
and Personal Care Facility rehabilitative living center, nursing home,
assisted living, etc.).
Deletion of existing Land use has been eliminated from the Standards and uses are redundant.
regulations associated with table. As a result the standards governing
Residential Hotel, development of same are being Such uses are either permitted as part of
Dormitory, Fraternity, eliminated. a `College' (i.e. Class A SUP)or
Sorority, and Religious constitute multi-family housing as
Quarters already detailed within the UDO.
Section 5.5.11 Temporary 1. Renumbering of LIDO sections; Addressing legal sufficiency by
Custodial Care Units; 2. Eliminating contradictory language to eliminating redundant and unnecessary
Section 5.5.12 Multi-family language associated with the
ensure uniformity within the identification of`standards of evaluation'
related to the use of headers.. for the identified land uses.
19
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
New Section 5.6 Standards 1. Renumbering of UDO sections to Addressing legal sufficiency by
for Service Uses accommodate modifications; eliminating redundant and unnecessary
2. Eliminating contradictory language to language associated with the
ensure uniformity within the UDO identification of`standards of evaluation'
related to the use of headers; for the identified land uses.
3. Section 5.6.1 — Establishment of Identification of existing/new land use
base land use development criteria development standards consistent with
for general service land uses in new UDO format.
accordance with existing limitations
identified in the current UDO; As previously indicated, various
4. Section 5.6.2—relocation of existing overnight accommodation land uses (i.e.
regulations governing development hotel, motel, motor court, bed and
of a Cemetery; breakfast, bed and breakfast inn, country
inn, etc.)were combined to avoid
5. Section 5.6.3—New category conflicts and unnecessary duplication of
combining all existing forms of efforts.
restaurants, bars, and pubs into a
central land use category with Proposed regulation(s) are consistent
breakdown if development criterial in with existing standards governing Bed
various general use zoning districts; and Breakfast ; Bed and Breakfast Inn ;
6. Section 5.6.4 and 5.6.5 - relocation Country Inn ; Hotels, etc. Number of
allowable bedrooms consistent with
of existing regulations governing current regulations.
development of a Funeral Home and
Garden Center respectively; Staff has eliminated identified
7. Section 5.6.6 and 5.6.7—update of discretionary consistent with County
headers/titles of section, relocation of Attorney direction.
development standards previously
identified in the current table (i.e. Staff is eliminating references to 're-
conditional use district); approval of an expired SUP'. If an SUP
expires, current regulations require a
8. Section 5.6.8— updating of language resubmittal of the application. There is
in Class II Kennels; no reason why a Short Term Rental
9. Section(s) 5.6.9 through 5.6.11 — should be treated any differently.
creation of Short Term Rental land
uses;
10. Relocation of Microbrewery and
Winery regulations to new
Manufacturing land use category;
11. Section 5.6.12— identification of land
use regulations associated with a
Storage of Goods land use;
12. Section 5.6.13—adding language
originally captured as part of the
table of permitted uses.
20
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Section 5.7 Standards for 1. Renumbering of UDO sections to Addressing legal sufficiency by
Recreational Uses accommodate modifications; eliminating redundant and unnecessary
2. Eliminating contradictory language to language associated with the
ensure uniformity within the UDO identification of`standards of evaluation'
related to the use of headers; for the identified land uses.
3. Section 5.7.5—elimination of Identification of existing/new land use
references to Retreat Center, which development standards consistent with
is being moved to the Assembly land new UDO format.
use category. Elimination of
reference in Section 5.7.5 (A) (2) (b) Movement of existing standards to more
to the site plan showing the distance appropriate section(s) as identified
to the nearest residential structure. herein.
This language, which is part of the
site plan submittal, has been moved
to Section 5.7.5 (A) (1) (d);
4. Elimination of Theater, which is
being moved to the Assembly land
use category.
New Section 5.8 Standards 1. Renumbering of UDO sections to Addressing legal sufficiency by
for Care and Educational accommodate modifications; eliminating redundant and unnecessary
Facilities language associated with the
2. Eliminating contradictory language to identification of`standards of evaluation'
ensure uniformity within the UDO related to the use of headers; for the identified land uses.
3. Section 5.8.1 and 5.8.2 — Identification of existing/new land use
Elimination of references to development standards consistent with
`Daycare'or`Child'. Proposed new UDO format.
revisions to the UDO allow for`care'
in a residence in general.
Development standards are also
proposed;
4. Section 5.8.3—existing regulations
associated with the development of a
Non-profit Educational Cooperative
are being repurposed to govern
development of Schools:
Universities, Colleges, and
Institutes.;
5. Section 5.6.4—renaming of use
category consistent with revised
table;
6. Section 5.8.5— Establishment of
regulations governing Technical,
Trade, and Skill training schools.
21
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Section 5.9 Utilities and 1. Renumbering of UDO sections; Addressing legal sufficiency by
Section 5.10 2. Eliminating contradictory language to eliminating redundant and unnecessary
Telecommunication language associated with the
related to the use of headers.
Facilities ensure uniformity within the . identification of`standards of evaluation'
for the identified land uses.
3. Under Section 5.10 (new Section
5.10.10) adding new regulations As previously indicated herein, State law
governing erection and use of Ham was amended creating allowances for
Radio Towers. the erection/use of ham radio towers.
Staff is modifying the UDO to reference
these same standards.
Section 5.11 Waste 1. Renumbering of UDO sections; Addressing legal sufficiency by
Management Facilities and 2 Eliminating contradictory language to eliminating redundant and unnecessary
Section 5.12 Extractive language associated with the
Uses ensure uniformity within the . identification of`standards of evaluation'
related to the use of headers. for the identified land uses.
Section 5.13 Agricultural 1. Renumbering of UDO sections; Addressing legal sufficiency by
Uses 2. Eliminating contradictory language to eliminating redundant and unnecessary
ensure uniformity within the UDO language associated with the
related to the use of headers; identification of`standards of evaluation'
for the identified land uses.
3. Incorporation of use regulations
currently identified in the table of Updating language allowing for the
permitted uses, specifically: collapsing of existing land uses into one
a) Uses shall not be permitted central use category consistent with
as a Conditional Use District; BOCC direction.
b) Use not permitted within the
Rural Buffer; and
c) Use may be permitted as
more than 1 principal use if
located on a bona fide farm.
4. Section 5.13.5—adding language
concerning composting operations
with grinding activities. This has
allowed for the collapsing of two
existing land use categories into one.
22
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Section 5.14 Manufacturing, 1. Renumbering of UDO sections to Addressing legal sufficiency by
Assembly, Processing, and accommodate modifications; eliminating redundant and unnecessary
Distribution Uses—Food language associated with the
2. Eliminating contradictory language to identification of`standards of evaluation'
ensure uniformity within the UDO related to the use of headers; for the identified land uses.
3. Eliminating of existing non-food Identification of existing/new land use
manufacturing land uses from this development standards consistent with
Section. These uses are being new UDO format.
moved to Section 5.15 of the revised
UDO; Updating language for a Microbrewery
4. Incorporation of use regulations and Winery allowing for the collapsing of
currently identified in the table of existing land uses into single use
permitted uses, specifically: categories consistent with BOCC
direction.
a.Uses shall not be permitted as a
Conditional Use District;
b.Use not permitted within the
Rural Buffer; and
c.Use may be permitted as more
than 1 principal use if located on
a bona fide farm.
5. Section 5.14.1 — Establishment of
base land use development criteria
for general food manufacturing land
uses in accordance with existing
limitations identified in the current
UDO ;
6. Section(s) 5.14.2 and 5.14.3—
relocation of regulations governing
Microbrewery and Winery.
Section 5.15 Manufacturing, 1. Renumbering of UDO sections to Addressing legal sufficiency by
Assembly, Processing, and accommodate modifications; eliminating redundant and unnecessary
Distribution Uses— Other language associated with the
than Food 2 Eliminating contradictory language to identification of`standards of evaluation'
ensure uniformity within the UDO related to the use of headers; for the identified land uses.
3. Relocation of existing non-food Identification of existing/new land use
manufacturing land uses development standards consistent with
development standards from various new UDO format.
sections of the current UDO;
4. Section 5.15.1 - Establishment of
base land use development criteria
for general food manufacturing land
uses in accordance with existing
limitations identified in the current
UDO.
23
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Section 5.16 1. Renumbering of UDO sections to Addressing legal sufficiency by
Automotive/Transportation accommodate modifications; eliminating redundant and unnecessary
Related Uses language associated with the
2. Eliminating contradictory language to identification of`standards of evaluation'
ensure uniformity within the UDO related to the use of headers; for the identified land uses.
3. Section 5.16.1 —relocation of Identification of existing/new land use
existing Airport regulations from the development standards consistent with
Miscellaneous land use category; new UDO format.
4. Incorporation of use regulations
currently identified in the table of
permitted uses, specifically:
a) Uses shall not be permitted
as a Conditional Use District.
Section 5.17 Medical Uses 1. Renumbering of UDO sections to Addressing legal sufficiency by
accommodate modifications; eliminating redundant and unnecessary
2. Eliminating contradictory language to language associated with the
ensure uniformity within the UDO identification of`standards of evaluation'
related to the use of headers; for the identified land uses.
3. Section 5.17.2— Establishment of Identification of existing/new land use
base land use development criteria development standards consistent with
for general medical land uses in new UDO format.
accordance with existing limitations
identified in the current UDO; Mobile vet clinic eliminated as same was
4. Incorporation of use regulations not a principal use of property and was
currently identified in the table of already captured as a `special event' or a
permitted uses, specifically: customary accessory use to a non-
residential land use.
a) Uses shall not be permitted
as a Conditional Use District.
5. Elimination of the Veterinary Clinic,
Mobile land use.
24
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Section 5.18 Assembly 1. Renumbering of UDO sections to Addressing legal sufficiency by
Uses accommodate modifications; eliminating redundant and unnecessary
2. Eliminating contradictory language to language associated with the
ensure uniformity within the UDO identification of`standards of evaluation'
related to the use of headers; for the identified land uses.
3. Section 5.18.1 — Moving of existing Identification of existing/new land use
occupancy limit for assembly land development standards consistent with
uses being developed in the Rural new UDO format.
Buffer;
4. Section 5.18.1 (C)—establishment Relocation of existing regulations
of occupancy limits in various governing retreat centers and theaters
general use zoning districts as these are now deemed to be
consistent with existing land use assembly' land uses.
regulations;
5. Relocation of Retreat Center and
Theater land use regulations.
Section 5.19 Government 1. Renumbering of UDO sections to Addressing legal sufficiency by
Uses accommodate modifications; eliminating redundant and unnecessary
2. Eliminating contradictory language to language associated with the
ensure uniformity within the UDO identification of`standards of evaluation'
related to the use of headers; for the identified land uses.
3. Incorporation of use regulations Identification of existing/new land use
currently identified in the table of development standards consistent with
permitted uses for a military new UDO format.
installation, specifically:
a) Uses shall not be permitted as
a Conditional Use District.
Section 5.20 Offices and 1. Renumbering of UDO sections to Addressing legal sufficiency by
Financial Services accommodate modifications; eliminating redundant and unnecessary
2. Eliminating contradictory language to language associated with the
ensure uniformity within the UDO identification of`standards of evaluation'
related to the use of headers; for the identified land uses.
3. Section 5.20.1 — Establishment of Identification of existing/new land use
base land use development criteria development standards consistent with
for general office and final service new UDO format.
land uses in accordance with existing
limitations identified in the current
UDO;
4. Section 5.20.2—establishment of
specific development standards for
building/trade contractor offices that
have outdoor storage or
equipment/materials.
25
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Section 5.21 Retail 1. Renumbering of UDO sections to Addressing legal sufficiency by
accommodate modifications; eliminating redundant and unnecessary
2. Eliminating contradictory language to language associated with the
ensure uniformity within the UDO identification of`standards of evaluation'
related to the use of headers; for the identified land uses.
3. Section 5.21.1 — Establishment of Identification of existing/new land use
base land use development criteria development standards consistent with
for general retail land uses in new UDO format.
accordance with existing limitations
identified in the current UDO;
4. Section 5.21.2—relocation and
preservation of existing County Store
development regulations.
Section 5.22 Miscellaneous 1. Renumbering of UDO sections to Addressing legal sufficiency by
Uses accommodate modifications; eliminating redundant and unnecessary
2. Eliminating contradictory language to language associated with the
ensure uniformity within the UDO identification of`standards of evaluation'
related to the use of headers; for the identified land uses.
3. Maintaining existing regulations for Identification of existing/new land use
Major Subdivisions. development standards consistent with
new LIDO format.
Section 6.9.7 Off-street Updating parking requirements for various Addressing legal sufficiency by ensuring
Parking Standards land uses. This includes changing names consistency with revised table.
of land uses to be consistent with
proposed table of permitted uses.
Article 10 Definitions
New definition: New definition to ensure term is property
defined in the context the County staff
Apparel Manufacturing Land uses involved with the manufacturing proposes to see the use regulated as.
(new) of garments, which can include ready-to-
wear and custom garments.
Assembly Use (new) New definition: New definition to ensure term is property
defined in the context the County staff
A land use providing space, indoors or proposes to see the use regulated as.
outdoors, allowing for the congregation of
persons for the purpose of observing,
listening, or engaging in a service,
performance, or activity.
Elimination of the definition Definition being eliminated. Made
of`Auditorium' redundant by the proposed definition of
`Assembly Use'.
26
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Center in a Residence Use type located within Aa residence in Revised definition to ensure term is
(existing modified) which offering temporary child care to property defined in the context the
clients, including children, adolescents, County wished to see regulated. R-L-d
and adults, for no more than eight hours in Bold Underlined Strikethrou*h Text is
a 24 hour period as n eyilde.t mohi..h existing language being eliminated as
located on a n„hlic st:aip~mined part of this proposal.
react and which Provides nhild a for
more than three but no more than 49
r h i I�.wiia_Fe41-.
Child Care Facility Use type offering temporary care to clients, Revised definition to ensure term is
(existing modified) including children, adolescents, and adults, property defined in the context the
for no more than eight hours in a 24 hour County staff wishes to see the land use
period. Care can be offered regardless of regulated as.
the time of day and whether or not
operated for profit. Term includes child Definition modified as indicated.
care centers, and any other child care
arrangement not excluded by General
Statute 110-86(2), that provides child care.
a)A child care center is an
arrangement where, at any one time,
there are three or more pre-school
children or nine or more school-aged
children receiving child care.
b)A family child care home is a child
care arrangement located in a
residence where, at any one time,
more than two children, but fewer
than nine children, receive child care.
Chemical Manufacturing New definition: New definition to ensure term is property
and Processing—Other defined in the context the County staff
than Pharmaceutical and A land use involved with the transformation proposes to see the use regulated as.
Medicine (new) of organic and inorganic raw materials by
various processes for the formulation of
non-pharmaceutical and non-medical
products including the creation of base
chemicals, dyes, gasses, resins, etc.
Elimination of the definition Definition being eliminated. Replaced by The term `Church' has a specific
of'Church' the term `Place of Worship' as connotation to it that could be construed
recommended by staff. as limiting other places of worship that
do not `fit' within the concept of how
some would define the plain meaning of
the word.
Staff is recommending a term that is
more encompassing to avoid narrow
interpretation.
27
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Club or Lodge (existing Definition revised to read as follows: Revised definition to ensure term is
revised) property defined in the context the
An assembly land use, operated by a non-profit group, for members and guests. County wishes to see the use regulated
as.
Assembly land uses are going to be
regulated/permitted based on the
commercial versus non-commercial
aspects of their operation.
Community Center(existing Definition revised to read as follows: Revised definition to ensure term is
revised) An assembly land use, operated by a non- property defined in the context the
profit group, as a non-commercial activity. County staff wishes to see regulated as.
Assembly land uses are going to be
regulated/permitted based on the
commercial versus non-commercial
aspects of their operation.
Concrete Processing, New definition: New definition to ensure term is property
Preparation, and defined in the context the County staff
Distribution (new) A land use primarily engaged in the proposes to see the use regulated as.
following:
(a) Manufacturing portland, natural,
masonry, pozzolanic, and other
hydraulic cements;
(b) Batch or mixing plants;
(c) Manufacturing of concrete pipe,
brick, and block; or
(d) Manufacturing other concrete
products.
Converted Paper Product New definition: New definition to ensure term is property
Manufacturing, Assembly, defined in the context the County staff
and Processing (new) Land uses involved with the converting of proposes to see the use regulated as.
paper or paperboard into finished
products. Use does not involve the actual
manufacturing of paper or paperboard
material on-site.
Elimination of the definition Definition being eliminated. This is an The land use conflicts with limits already
of`Day Care Home Large' outdated land use category that was not established within the UDO for care
included in the table reorganization. operations located within a residential
general use zoning district. Staff is
eliminating a category that no longer has
viability.
Eating and Drinking New definition: New definition incorporating existing
Establishments (new— definitions of restaurant.
combines several existing Land uses providing for the consumption
land uses) of food and/or drink to its clientele on or off
site.
28
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Family Care Facility(new Existing definition being revised to read as Red Bold Strikethrough-Undedined
revised) follows: text eliminated. Red Underlined text
A residential facility as defined:n NCGS represents new definition.
A facility The existing definition could have been
GGGupants net oeunting staff.
which meets the definition of a family care construed as being inconsistent with
home in NCGS 168-21. State law. The definition was modified to
reference the State law specifically
without embellishments.
Elimination of the definition Definition being eliminated. From a construction standpoint, land
of`Family Daycare Home' uses not expressly listed and `prohibited'
for development are deemed to be
permitted by right. Staff does not believe
it was the County's intention to `regulate'
the care of no more than three children
in a household.
Further, the State does not recognize
this situation as requiring a license from
such operations.
Staff believes this should not be a use
we require a permit for.
Financial Services (new) New definition: New definition to ensure term is property
defined in the context the County staff
Land uses providing economic and proposes to see the use regulated as.
financial services to a clientele.
Foundry(new) New definition: New definition to ensure term is property
defined in the context the County staff
A land use involved with the production of proposes to see the use regulated as.
castings or products through poring molten
metal into molds or
casts.
29
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Group Care Facility Existing definition being revised to read as
(existing revised) follows: teyt eliminated. Red Underlined text
,.ir+., "Gensed by the appropriate represents new definition.
state a
from seven t,fifteen rouP le4e.t The existing definition could have been
;,,dmymduals exclu dino s��ner"iser., construed as being inconsistent with the
personnel who are henrl'cenneet �oerl various provisions of State law. The
disabled earl ire - definition was modified to simplify the
or
i_inderooino rehabilitation or extend erl term from a land use enforcement
ears, and are� provided s s to meet perspective.
their specific needs This
cateoory inGkK es o n homes fer ell
half_wny houses, fester and
ardlmno homes The fello...ino
shall not he elir.ihle for admission to �
group care f�ciliti•
e\ Persons addicted to or
recuperatinn from the effects of
an addiction to druqs or alcohol-
Persons admustinn to non_nriso
life G'udino but not limited +o
rtra�r rnrrrrcca cv,
„pre-release work releese
Probationary Prowams and
E uyenile de+entien centers-.
A facility licensed by the appropriate State
agency providing room and board for
seven to 15 unrelated individuals,
excluding staff,who as a result of age,
illness, handicap or some specialized
program require personalized services or a
supervised living arrangement in order to
assure their safety and comfort.
Group Home (new) New definition: New definition to ensure term is property
defined in the context the County staff
A residential living arrangement providing proposes to see the use regulated as.
housing for seven to 15 unrelated
individuals other than a Group Care Designed to create a distinction between
Facility a facility requiring a State license and a
group of people desiring to live together.
30
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Health and Personal Care New definition: New definition to ensure term is property
Facility(new) defined in the context the County staff
A public or private facility, establishment, proposes to see the use regulated as.
or institution providing housing for 16 or
more unrelated individuals who are Designed to create a catchall category
furnished meals and health/personal care for all `group' living situations for 16 or
on a continuing basis. Term includes: more people as well as consolidate all
convalescent homes, nursing homes, rest elder care operations into a single land
homes, assisted living facility, sanatoria, use category.
homes for the elderly,
handicapped, disabled, youthful offenders,
addicted to alcohol or drugs, requiring
professional health care, adult supervision,
or rehabilitation.
Elimination of the definition Definitions being eliminated and captured Overnight accommodation(s)are now
of`Hotel, Motel, Motor as part of the new Short Term Rental handled through the permitting and
Lodge, Motor Inn, Inn construct consistent. definition of Short Term Rental.
Tourist Court' and `Hotel,
Residential'
Elimination of the definition Definitions are being eliminated. The County cannot rely on definitions to
of`Industrial, Light', establish land use regulations.
`Industrial, Medium', and As a result, the information has been
`Industrial, Heavy' incorporated into the table.
Elimination of the definition Definition being eliminated. Land use As currently listed, a Kennel Class I
of`Kennel Class I' category is being eliminated. could be developed as a principal use of
property(i.e. the housing of animals with
no other land use).
Staff is of the opinion it would not be
prudent to allow for this to use to be
developed as a principal, sole, use of
property. It should be considered a
customary accessory use to a single-
family residence.
The use was, apparently, originally
included to mirror language with Orange
County Animal Services regulations,
which at one point apparently had a
Kennel Class I permit. This no longer
exists.
The term and land use category are now
redundant.
31
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Leather and Allied Product New definition: New definition to ensure term is property
Manufacturing (new) defined in the context the County staff
Land uses involved in the transformation of proposes to see the use regulated as.
previously finished leather into products for
eventual sale or distribution. This includes
products, except for apparel, made from
leather substitutes including rubber,
plastics, or textiles. This does not include
the transforming of raw product to allow for
the development of a product. Please refer
to Leather and Hide Tanning and
Finishing.
Leather and Hide Tanning New definition: New definition to ensure term is property
and Finishing (new) defined in the context the County staff
Land uses involved in the transformation of proposes to see the use regulated as.
hides into leather through tanning or
curing. Does not include the manufacturing
of leather into products for eventual sale or
distribution.
Manufacturing Assembly, Existing definition modified as follows: Red Underlined text represents
Processing, and Distribution proposed new language.
Use (existing modified) An establishment engaged in the
mechanical, physical, or chemical
transformation of materials, substances, or
components into new products. The
assembling of component parts into a final
product can also be considered part of this
category. This term encompasses two
different categories of land uses, namely:
Manufacturing, Assembly, Processing, and
Distribution Uses— Food and
Manufacturing, Assembly, Processing, and
Distribution Uses—Other.
Motor Vehicle Maintenance Existing definition modified as follows: Red Bold Stilkethmuc
and Repair(existing test eliminated. Red Underlined text
modified) Motor Vehicle Maintenance represents new definition.
An establishment where the following Staff is recommending modification of all
services are available: definitions and land use standards
a) Body work, associated with Motor Vehicle land uses
b) Straightening of body parts, to provide for greater clarity as to what is
c) Painting, and permitted to occur.
d)Welding,
e) Stem,° of motor veh0Gies not :., In this instance, motor vehicle
operafin maintenance will mean a land use
engaged in activities designed to
maintain or enhance the vehicle.
32
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Motor Vehicle Repair Existing definition modified as follows: cow a„►d c+lo-o+H.,,..n►, Underlined
Garage (existing modified) text eliminated. Red Underlined text
Motor Vehicle Repair represents new definition.
An establishment where the following Staff is recommending modification of all
services are available: definitions and land use standards
associated with Motor Vehicle land uses
a) Major mechanical repairs, including to provide for greater clarity as to what is
engine overhaul, and permitted to occur.
b)Transmission work. Repair garages
can also offer services similar to In this instance, staff is recommending
service stations. taking existing language contained within
c) Sale and servicing of spark plugs, the definition of Motor Vehicle Service
batteries and/or distributors and Station and incorporating same within
ignition systems parts; Motor Vehicle Repair. This land use will
d) Sale, servicing and repair of tires, become what is identified as a `repair
but not recapping or re-grooving; garage'.
e) Replacement of mufflers, tail pipes,
water hoses, fan belts, brake fluid,
light bulbs, windshield wipers and
blades, grease retainers, wheel
bearings and the like;
f) Radiator cleaning, flushing and fluid
replacement;
g) Provision and repair of fuel pumps,
oil pumps and lines;
h)Adlustment and repair of
carburetors;
i)Adlustment and repair of brakes;
j)Adlustment and repair of wiring;
k) State motor vehicle inspections; and
I)Temporary storage of motor vehicles
not in operating condition while
work is being performed onsite.
33
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Motor Vehicle Service Existing definition modified as follows:
Station (existing modified) Motor Vehicle Service Sta#Gn �[t eliminated. Red Underlined text
An establishment where gasoline, diesel represents new definition.
oil and/or other fuel for internal combustion
engines is supplied and dispersed at retail Staff is recommending modification of all
and where, in addition, the following definitions and land use standards
services may be rendered: associated with Motor Vehicle land uses
a) Sale and servicing of spark plugs to provide for greater clarity as to what is
batteries and/or distrHm ors and permitted to occur.
s+e a r+s
sale seFvmc0nq and repair of tires In this instance, staff is recommending
but not reGappinq or reqroovinq; the revised Motor Vehicle Service land
G) Peplagement of use be viewed as a `gas station'.
Pipes,
water hoses fan belts
brake fluid, light hIhs Under this new scenario, the County will
windshield •• have distinctions between:
wipers and blades' grease retainers
wheel hearinnsand the like• • Gas station,
Radiator cleaning flushing an . Repair, and
fluid replacement' • Maintenance
e)Washing and polishing supplies;
f) creasing and lubri.;a+i„n• Of motor vehicle land uses.
-vision ar.dT��ael
pumps, oil pumps and lines•
h) Miner admus+men+ and r of
curc a reh•�re-c+ors
cvr.T,
it Adjustment and repair of brakes;
DEmernencv repair of wiring•
k) Minor motor adoustments not
i nvolvinn removal of the head or
crankcase,•
a) Sales of beverages, packaged
foods, tobacco products and similar
convenience goods for customers,
as accessory and incidental to the
principal operations: and
b) Provision of road maps and other
travel information to customers:
n) Provision of restroom fanili+ies•
and
o) State motor vehicle insnec+ions
v7-vcu rr.�p c
r'c
A cep� station t Li + rcne'r ner+ne
.7�ir • •on is not Aai• qA•C7crr.
nor a hedv shoe Uses permissible at
sewmGe station do not instramqhtenmnq of cl••de m
hodv Par+s
trucks not in operafinq c ndi+ion o
other ratiens involving noise glare
smoke, fumes noir other onhear agtcni sal ccs '
to an extent greater than normally
found in service stations
34
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Elimination of the definition Definition being eliminated. Land use
of`Non-profit Educational category is being eliminated.
Cooperative'
Nursing Home (existing Existing definition be modified as follows: Red Bold etr:o-^+tip^..^h U.,de4i --d
modified) text eliminated. Red Underlined text
,.facility licensed by the appropriaterepresents new definition.
state-agenc for the car- v{uQc.
E nfirmed individuals tat th^rue This use is now a part of the Health and
requirements cot forth in this Personal Care Facility land use category.
^tee See Health and Personal Care
Facility. Staff is recommending keeping the term
and referencing it as being part of this
new land use to ensure readers are
properly advised.
Office Use (existing Existing definition be modified as follows: Red Bold Strikethrouc
modified) text eliminated. Red Underlined text
e use of property A land use providing represents new definition.
for professional and clerical activities
associated with the operation of a Existing definition being modified to
business or provision of professional ensure clarity.
services to clientele.
Office and Personal Existing Office and Personal Services The County cannot rely on definitions to
Services (existing deleted) Class 1, 2, and 3 are being eliminated in establish land use regulations. Existing
their entirety. definitions are designed to establish
`land use' criteria as to what is and is not
allowed (i.e. number of trips per day).
We are no longer going to have different
classed of`office' land uses. The
information contained within the
definition, specifically intensity of office
uses, has been incorporated into Article
5 of the UDO as square footage
limitations on the size of office/personal
services uses permitted within given
general use zoning districts.
Paperboard Containers and Definition of a new land use: Red Underlined text represents new
Box Manufacturing, definition.
Assembly, and Processing A land use engaged in converting
(new) previously manufactured paperboard into To ensure clarity with respect to how
containers. Does not include the actual staff will view this particular use.
manufacturing of the paperboard product.
Please refer to Pulp, Paper, and
Paperboard Mills as defined herein.
35
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Petroleum and Coal Definition of a new land use: Red Underlined text represents new
Product Processing, definition.
Preparation, and A land use engaged in the transformation
Distribution (new) of crude petroleum and coal into usable To ensure clarity with respect to how
products, including the separation of crude staff will view this particular use.
petroleum into component products
through such techniques as cracking and
distillation. Allowable activities include
manufacturing of asphalt for paving or
roofing, manufacturing of asphalt shingles
and coating. This activity does not include
the manufacturing of Petroleum and
Lubricating Oil and Grease Manufacturing
or Petroleum Refinery operations as
defined herein.
Petroleum and Lubricating Definition of a new land use: Red Underlined text represents new
Oil and Grease definition.
Manufacturing (new) A land use engaged in the blending or
compounding of refined petroleum to make To ensure clarity with respect to how
lubricating oils and greases and/or re- staff will view this particular use.
refining used petroleum lubricating oils.
Petroleum Product Storage Definition of a new land use: Red Underlined text represents new
and Distribution (new) definition.
The storage of finished/refined petroleum
products for sale and distribution including To ensure clarity with respect to how
retail and wholesale activities. staff will view this particular use.
Petroleum Refinery(new) Definition of a new land use: Red Underlined text represents new
definition.
A land use engaged in refining crude
petroleum into refined petroleum products To ensure clarity with respect to how
involving one or more of the following staff will view this particular use.
activities: (1)fractionation; (2)straight
distillation of crude oil; and (3)cracking.
Place of Worship (new) Definition of a new land use: Red Underlined text represents new
definition.
An assembly land use primarily providing
meeting areas for the support or religious To ensure clarity with respect to how
activities, services, and study. staff will view this particular use. This
new term is taking the place of`church'.
36
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Pulp, Paper, and Definition of a new land use: Red Underlined text represents new
Paperboard Mills (new) definition.
Land uses engaged in the manufacturing
of pulp, paper, or paperboard from raw To ensure clarity with respect to how
materials. staff will view this particular use.
Race Track (new) New definition of an existing land use: Red Underlined text represents new
definition.
A facility built for racing of vehicles,
athletes, or animals (e.g. horse racing or This is an existing land use within
greyhound racing)which may feature Orange County that lacked a definition.
grandstands or concourses.
Staff is adding the term to the Definitions
section of the UDO.
Recycling of Materials New definition of an existing land use: Red Underlined text represents new
(new) definition.
A facility that converts waste or discarded This is an existing land use within
materials into new materials or objects for Orange County that lacked a definition.
sale and/or use off site. Activities can
include the breaking down of Staff is adding the term to the Definitions
asphalt/concrete into stone/gravel, section of the UDO.
chipping of wood/wood materials into
mulch, composting, etc. Recycled
materials can be sold on-site. The term
does not include the salvaging of metal or
motor vehicles. Please refer to
`Junkyard/Salvage' as defined herein.
Research Facility with and The existing term is being modified to Modification necessary to ensure
without Manufacturing ensure consistency with how the land use consistency with proposed amendments
(existing modified) is identified within the table of permitted to the table of permitted land uses.
uses.
Now identified as: Research Facility
Without Manufacturing and Research
Facility With Manufacturing.
37
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Deletion of the terms Existing land use categories are being The County cannot rely on definitions to
Restaurant Carry-Out, eliminated in their entirety. As a result establish land use regulations. Existing
Restaurant Drive-In, Retail definitions are being eliminated as well definitions establish 'land use' criteria as
Class 1, 2, and 3 to what is and is not allowed (i.e. number
of trips per day) or what services are
permitted.
We are no longer going to have different
classed of'retail' and 'restaurant' land
uses.
The information contained within these
definitions has been incorporated into
Article 5 of the UDO addressing how
each land use is developed within a
given general use zoning districts.
Further, all 'retail' and 'restaurants' have
been combined into single land use
categories (i.e. retail and eating
establishments).
Retail Use (existing Existing definition modified as follows: Red Underlined text represents new
modified) definition.
An establishment focused on selling goods
or merchandise to the general public for Additional information is necessary in
personal or household consumption and order to ensure clarity and legal
the rendering of services incidental to the sufficiency with how the County will be
sale of merchandise. Sale of looking at retail operations.
goods or merchandise can be completed
either by direct on-site purchase or through
the receipt of a request/order of an item
that is mailed or picked up by the
purchaser. Term includes the rental of
durable/convenience goods, merchandise,
and equipment.
Retreat Center(existing Existing definition modified as follows: Red Bold Strikethrouc
modified) tuft eliminated. Red Underlined text
An assembly land use new or exmstm^^ represents new definition.
facility operated by a cnrnor�tion nr
association of persons or churches for Existing definition being modified to
providinq social and recreational ensure clarity with respect to how the
purposes amenities ser.,icec �nrl County will view a 'retreat center'.
activities to its clientele operated as a
commercial activity. a retreat ^enter.,,�,•
heowned by a Profit o o+_for_nrofi+
Gorporatmon.
Rural Guest Establishment Existing definitions of'Rural Guest Existing definition is being eliminated to
(existing definition deleted) Establishments' which includes: Bed and ensure consistency with respect to how
Breakfast, Bed and Breakfast Inn, and the use is going to be classified within
Country Inn are being deleted. These the revised table of permitted uses.
uses are now part of the Short Term
Rental land use.
38
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
School— Preparatory(new) New definition of land use: Red Underlined text represents new
definition.
A land use providing academic courses
designed to satisfy curriculum Definition of updated term to ensure we
requirements/standards established by the are capturing what is considered to be a
State of North Carolina Department of part of the land use category.
Public Instruction including pre-school
through 12th grade/pre-college activities The definition addresses a legal
provided by either public or private sufficiency issue with respect to creating
institutions. The term includes appropriate distinctions between the
kindergarten, elementary/secondary and various 'school' uses allowed within the
high schools, schools for the mentally County.
and/or physically disabled, military
academies, schools for the deaf or visually
impaired, and alternative schools.
School — Performing Arts, New definition of land use: Red Underlined text represents new
Sports and Recreation definition.
(new) A land use providing instruction and/or
training in the arts, such as music, art, or Definition of updated term to ensure we
dance, and/or athletic activities, such as are capturing what is considered to be a
martial arts but not approved by the North part of the land use category. As a
Carolina Department of Public Instruction. reminder this land use category now
includes several previously separate
land uses.
The definition addresses a legal
sufficiency issue with respect to creating
appropriate distinctions between the
various `school' uses allowed within the
County.
School—Technical, Trade, New definition of land use: Red Underlined text represents new
and Skill Training (new) definition.
Land use(s) engaged in offering a variety
of technical, trade, continuing education, Definition of updated term to ensure we
vocational and skills training. Includes are capturing what is considered to be a
facilities providing workforce education and part of the land use category. As a
college transfer academic programs and reminder this land use category now
may include institutions that maintain includes several previously separate
athletic teams and offer on-site living land uses.
accommodations (i.e. dormitories) but not
approved by the North Carolina The definition addresses a legal
Department of Public Instruction. sufficiency issue with respect to creating
appropriate distinctions between the
various 'school' uses allowed within the
County.
39
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Short Term Rentals (new New definition of the various categories of Red Underlined text represents new
definitions) Short Term Rental: definition.
Short Term Rental Small —A dwelling All overnight accommodation land uses
occupied by a host which provides up to are being combined into a single land
three questrooms for overnight rental or use construct.
lease.
Proposed limits on these uses are
Short Term Rental Large— Host Occupied: consistent with existing policies enforced
A dwelling occupied by a host which within the UDO.
provides more than three questrooms for
overnight rental or lease. Uses are being combined to ensure
clarity with respect to what is and is not
Short Term Rental— Non-host Occupied: A allowed in a given general use zoning
dwelling which provides questrooms for district as it relates to an overnight
overnight rental or lease but is not accommodation.
occupied by a host.
Starch, Vegetable Fats, and Definition of new land use: Red Underlined text represents new
Oils Manufacturing (new) definition.
Establishments primarily engaged in
creating a finished oil based product by: To ensure clarity with respect to how
(a)Wet milling corn and vegetables; staff will view this particular use.
(b) Crushing oilseeds and tree nuts;
(c) Refining and/or blending vegetable
oil.
(d) Manufacturing shortening and
margarine; andor
(e) Blending purchased animal fats
with vegetable fats
Storage of Goods (new) New definition of existing land use: Red Underlined text represents new
definition.
A land use where secured space, indoors
or outdoors, is rented to tenants for the To ensure clarity with respect to how
safeguarding and/or keeping of general staff will view this particular use.
merchandise, refrigerated goods, and
other personal items on a short or long
term basis.
Textile Mills (new) Definition of new land use: Red Underlined text represents new
definition.
Land uses involved with the transformation
of a basic fiber, natural or synthetic, into a To ensure clarity with respect to how
final product further manufacturing into staff will view this particular use.
usable items off-site.
40
SECTION BEING WHAT HAS CHANGED WHY
MODIFIED
Theater(new) New definition of existing land use: Red Underlined text represents new
definition.
A building or outdoor area in which
performances are preformed or shown. To ensure clarity with respect to how
The term does not include structures staff will view this particular use.
primarily constructed to support the
holding and/or staging of sporting events
where outdoor performances may be held
as an accessory use.
Tourist Home (existing Existing term being deleted The use is now a part of the Short Term
deleted) Rental land use category construct.
Veterinary Clinic (existing Existing definition being modified as Red Bold- Strikpthrai
modified) follows: text eliminated. Red Underlined text
represents new definition.
A facility staffed by at least one licensed
veterinarian for the care and treatment of Existing definition being modified to
large and/or small animals not involving ensure clarity with respect to how the
overnight care. Such facilities may County will view a `vet clinic'.
nclude nroominn and short-term Specifically we are creating a distinction
boardonq as uncudental uses. between a clinic and a vet hospital,
where animals will more than lively have
overnight care as the result of medical
procedures.
Veterinary Clinic, Mobile The land use category has been deleted. This is not necessarily a land use but
(existing deleted) rather an accessory use or`special
event' use that is permitted consistent
with the various provisions of the UDO.
There is no need to define the term or list
as a `permitted' use of property.
Veterinary Hospital (existing Existing definition being modified as Red Bold etr:4ett,r,,..ch Unde4ined
modified) follows: eliminated. Red Underlined text
represents new definition.
A facility staffed by at least one licensed
veterinarian for the specialized treatment Existing definition being modified to
of large and/or small animals, which may ensure clarity with respect to how the
involve overnight care. Said faGilities may County will view a `vet hospital'.
provide emernency medical services
durinn and outsude of normal husiness Staff is also proposing to eliminate
hours Overni.rht care ma., he nroyirlerl repetitive language. There is no reason
when it is necessary for the medical to `spell out' that overnight care is
treatment of the animal allowed twice within the same definition.
Wholesale Trade (new) New definition of existing land use: Red Underlined text represents new
definition.
A land use involved, without transformation
or alteration of the product, with the sale of To ensure clarity with respect to how
merchandise to clientele in bulk. staff will view this particular use.
41
Attachment 3
SUMMARY OF TABLE OF PERMITTED USE PROJECT FACTS
AND QUESTIONS ASKED:
1. What exactly is going on?
At the direction of the Board of County Commissioners, staff is collapsing the
three existing tables within the Unified Development Ordinance (UDO) outlining
the various permitted land uses allowed in various zoning districts into a central
table.
Specifically, staff is combining the existing tables in Section(s):
• 5.2.1 (general use zoning districts),
• 5.2.2 (economic development district general use zoning districts), and
• 5.2.3 (Conditional Zoning districts)
and into a centralized table listing out permitted and prohibited land uses.
2. Why was this project initiated?
When a development proposal is submitted, staff ascertains if the use is either
specifically listed (i.e. single-family residence, church, restaurant, etc.) or falls
into an established land use category (i.e. paper manufacture allowed in light
industrial) in order to make the determination if the use is permitted or not.
If the use is permitted, the applicant is required to submit required development
applications for processing. If the use is deemed not permitted, the applicant is
informed of same.
Recent court decisions, most notably action by the State Supreme Court in Byrd
versus Franklin County, placed the responsibility on local governments `spell out'
allowable and prohibited land uses so individuals could make a reasonable
determination on what would and would not be allowed in a given zoning district.
As part of its ruling on this case, the State Supreme Court rejected the argument
that the mere omission/listing of a particular land use within a table of permitted
uses constituted a prohibition of same. The Court stated: `.... law favors
uninhibited free use of private property over government restrictions'.
In consultation with the County Attorney's office, staff has determined the
permitted use table(s) need to be modified to ensure compliance with the
aforementioned court case clarifying allowable/prohibited land uses and ensuring
uniformity with the delineation of `permitted' and `prohibited' land uses.
After a review of the matter, the Board of County Commissioners (BOCC)
directed staff to consolidate the three tables into a central list and provide
sufficient detail on what was and was not permitted for development in Orange
County.
3. Why does the County have three separate tables outlining allowable land
uses in the first place?
42
Before 2011, the year the UDO was adopted, land use regulations were
contained in multiple documents.
For example, development within the various Economic Development (EDD)
general use zoning districts (i.e. Buckhorn, Hillsborough, Eno) was completed in
accordance with the Economic Development District Design Manual. This
Manual contained a separate, independent, list of allowable and prohibited uses
for the various EDD zoning districts. Specific terminology was utilized is
listing/denoting allowable uses. This language differed from other general use
zoning districts throughout the County.
When land use development regulations were combined into the UDO in 2011,
separate tables identifying allowable land uses had to be created due to the
scope of work to which staff was limited.
At that time, staff indicated there would be to be further review of the various
tables to address conflicts with the ultimate goal of creating a centralized table
listing out permitted and prohibited land uses.
This project is the result of this previously identified need made timely by the
State Supreme Court action in Byrd.
4. What are the anticipated or perceived benefits of this project?
Right now, references to permitted and prohibited land uses within the three
existing tables are handled differently.
For example:
• Section 5.2.1 Table of Permitted Uses — General Use Zoning Districts
combines several `Manufacturing, Assembly, and Processing' land use
types into 1 of 3 `industrial' categories (i.e. light, medium, and heavy),
namely:
➢ Light Industrial (1-1) defined as: Manufacturing & processing
operations that occur entirely indoors and have limited impacts on
surrounding properties, including, but not limited to, production of
the following: food products (i.e. commercial bakery, candy, and
beverages, including bottling); surgical, medical and dental
instruments; wood cabinets, furniture and upholstery; light
machinery, including household appliances; toys, sporting and
athletic equipment, excluding firearms and ammunition; and, paper
products, such as bags, containers, and cardboard.
➢ Medium Industrial (1-2) defined as: Manufacturing & processing
operations that may occur indoors or outdoors and have limited
impacts beyond the boundaries of the zoning district, including, but
not limited to, the following: heavy household, commercial and
industrial appliances; manufactured homes, recreational vehicles
and related components; automotive, farm and construction
machinery, and, commercial building components.
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➢ Heavy Industrial (1-3) defined as: Manufacturing & processing
operations with a greater potential to impact surrounding properties,
where a majority or large component of the operation may occur in
the open air. Such uses may include, but not be limited to, the
following: asphalt mixing plants; cement manufacturing or
processing; commercial food processing (packing and rendering)
plants, including meat, poultry and fish; and, concrete mixing
plants.
Staff is responsible for determining where a proposed use is permitted
based on the existing definition(s) of each district as identified herein.
• Section 5.2.2 Table of Permitted Uses — Economic Development Districts
specifically lists out `Manufacturing, Assembly, and Processing' land uses,
identifying which EDD district a proposed use is allowed to be developed.
It is this inconsistency in how allowable land uses are listed/categorized that
represents an issue to be addressed to ensure compliance with Byrd. Further,
this inconsistent listing of permitted and prohibited uses has created confusion
for both staff and the development community with respect to `where a given use
can be located'.
The `perceived benefit' is to ensure transparency in land use decisions and
eliminate confusion by having a single, central, table of permitted land uses
outlining what is and is not permitted for development within the County.
5. How does the amendment to the tables of permitted uses impact
development of land uses within master planned districts (MPD) such as
Harts Mill and Settlers Point?
There will be no impact. As part of the review of any Master Plan Development
Conditional Zoning (MPD-CZ) project, applicants are required to provide a
comprehensive list of anticipated land uses for County review and action.
If these projects are approved by the BOCC, they are limited to those land uses
proposed by the applicant.
If a developer wishes to revise the allowed uses within an MPD-CZ project, he or
she will be required to request an amendment to the project.
This means an entirely new public hearing process, as detailed within the UDO,
requiring:
• A neighborhood meeting to review the changes,
• Planning Board review/recommendation, and
• A public hearing held by the BOCC
all advertised consistent with the requirements of the UDO.
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6. Will additional work be necessary?
Yes. The UDO is a living, breathing document designed to change overtime as
development opportunities/constraints/philosophies change.
Staff has completed what is considered to be a `necessary step' to:
➢ Consolidate existing regulations,
➢ Eliminate unnecessary repetition,
➢ Reduce, to the greatest extent possible, conflicts with respect to the
listing of permitted and prohibited land uses, and
➢ Develop a new format for the listing of permitted and prohibited land uses.
Through this consolidation effort, and creation of the new format, additional
efforts will be taken to analyze and refine permitted and prohibited of land uses
throughout the County.
7. Does this project create new zoning districts?
No. This project does not create new zoning districts.
This project does, however, create an environment where existing districts can
be re-evaluated to ascertain if further consolidation is possible.
For example, there are currently 9 EDD zoning districts throughout the County.
There has been interest in exploring the possibility of having fewer districts that
would be applicable to all EDDs.
By establishing this new methodology for listing permitted and prohibited uses,
there is opportunity to consolidate these districts thus helping to further
streamline existing processes and helping to eliminate confusion for local
residents/property owners with respect to what is permitted for development on
their property.
8. Will this project modify or change development regulations?
This project will not impact existing development standards/criteria.
Setbacks, density limits, impervious surface requirements, stream buffer
standards, floodplain development standards, etc. are not impacted by the
consolidation of the three existing tables into a central table.
9. What about review processes for various land uses. Will this project
impact established review processes?
There will be no major impact to development review processes for various land
uses.
Land uses permitted by right (i.e. staff review and action on a development
application), through special use permit (i.e. review by the Board of Adjustment
as a Class B or by the BOCC as a Class A), etc. are remaining the same.
45
A single-family residence, for example, is still permitted by right in the various
general use residential zoning districts, subject to staff review and approval. A
use requiring a special use permit, such as a retreat center or a
telecommunication tower, is still required to go through that process.
Proposed amendments do not alter required review timeframes either.
Uses permitted by right will still take approximately 7 to 30 days to review,
depending on the proposed activity (i.e. single-family residence versus a non-
residential land use).
Uses permitted through the special use permitting process will continue to take
approximately 2 '/2 to 4 months to review depending on which process is required
(i.e. Class B versus Class A).
10.Does this proposal alter allowable land uses within various districts?
Yes. In many non-residential zoning districts, additional land uses are going to
be permitted consistent with the previously defined nature and intent of the
district.
For example, staff has expanded allowable land uses within the Economic
Development Hillsborough Office/Retail (EDH-4) and the Economic Development
Hillsborough Research and Manufacturing (EDH-5) general use zoning districts
consistent with direction from the BOCC received in the fall of 2016.
These districts have the following purpose/intent:
• EDH-4: provide locations for high intensity office uses and supporting
retail and service uses in the designated Hillsborough Economic
Development District.
• EDH-5: provide locations for a wide range of research, assembling,
fabricating and light manufacturing activities, and such ancillary industrial
activities as warehousing and distribution in the designated Hillsborough
Economic Development District.
Additional land uses were added consistent with defined `purpose' of each
district.
11.Does this amendment establish regulations on farm operations?
No. Proposed amendments do not establish new regulations inconsistent with
applicable State law relating to agricultural/farming operations.
12.1 am concerned about the location of an asphalt plant in Orange County.
How will they be treated if the new table is adopted?
Under current regulations, an asphalt plant could be located within the Heavy
Industrial (I-3) general use zoning district.
46
Under the proposed amendment, an asphalt plant would be considered part of
the proposed Petroleum and Coal Product Processing, Preparation and
Distribution land use category.
As currently recommended by staff, this land use would not be permitted within
any general use zoning district. The activity would be considered a prohibited
land use. Please note there have been comment(s) made that such land uses
should continue to be allowed within the 1-3 general use zoning district consistent
with existing regulations.
There are, however, allowances for concrete/asphalt plants to be located within
public rights-of-way associated with a State or Federal highway
development/widening project.
13.How are lodging units/motels handled under the current ordinance?
Under the Current UDO, these land uses are addressed as follows:
a. Hotel, Motel, Motor Lodge, Motor Inn, Inn, Tourist Court defined as: A
building or group of attached or detached buildings containing, in
combination, ten or more lodging units, or ten or more dwelling units
intended primarily for rental or lease to transients by the day or week, as
distinguished from multi-family dwellings, rooming houses and residential
hotels in which rentals and leases are for weekly or longer periods and
occupants are generally residents rather than transients.
These activities are permitted within the following general use zoning
districts subject to the review and approval of a site plan (i.e.
administrative review and approval by staff):
• Community Commercial (CC-3),
• General Commercial (GC-4),
• Office Research and Manufacturing (O/RM),
• Economic Development Buckhorn Low Intensity (EDB-1),
• Economic Development Eno Low Intensity (EDE-1),
• Economic Development Eno High Intensity (EDE-2),
• Economic Development Hillsborough Linear Office (EDH-1),
• Economic Development Hillsborough Limited Office (EDH-2), and
• Economic Development Hillsborough Office (EDH-3).
The use is permitted within the Economic Development Buckhorn High
Intensity (EDB-2) subject to the issuance of a Conditional Use Permit (i.e.
approval of a rezoning petition and a Class A Special Use permit).
b. Hotel, Residential defined as: A building or group of attached or detached
buildings containing, in combination, ten or more lodging units available
for occupancy only for periods of thirty days or longer, provided, however,
47
that temporary lodging units for guests of regular tenants may be provided
in any residential hotel, with number of such units limited to 10% of the
number of tenant lodging units.
These activities are permitted within the following general use zoning
districts subject to the review and approval of a Class A Special Use
Permit (i.e. acted upon by the BOCC):
• High Intensity Residential (R-5, R-8, and R-13),
• Community Commercial (CC-3),
• General Commercial (GC-4),
c. Rooming House defined as: A building or group of attached or detached
buildings containing, in combination, from three to nine lodging units for
occupancy for weekly or longer periods, with or without board, for
residents, as distinguished from hotels and tourist homes in which rentals
are generally for daily or weekly periods and occupancy is by transients.
These activities are permitted within the following general use zoning
districts subject to the review and approval of a site plan (i.e.
administrative review and approval by staff):
• Medium Intensity Residential (R-4),
• High Intensity Residential (R-5, R-8, and R-13).
d. Rural Guest Establishment defined as: A temporary lodging facility that is
compatible to the primary land use of agriculture, forestry, open space, or
otherwise rural residential activities. Rural guest establishments consist of
three subcategories based on intensity and permit requirements, Bed and
Breakfast, Bed and Breakfast Inn, and Country Inn, which are further
defined below.
A. Bed and Breakfast: A private, owner-occupied dwelling in which
the frequency and volume of paying guests is incidental to the
primary use of the building as a private residence. One to three
guestrooms are made available to transient visitors. The
establishment shall not contain restaurant facilities, but may
provide food service for transient guests only. (Zoning Permit)
B. Bed and Breakfast Inn: A business operated in a structure which
is used primarily for providing overnight accommodations to the
public, even though the owner or manager lives on the
premises. The number of guestrooms may range from four to no
more than eight. The establishment shall not contain restaurant
facilities, but may provide food service for transient guests only.
(Class B SUP)
C. Country Inn: A business, which offers accommodations and
dining in a predominately rural area. Overnight accommodations
are available, and a full-service restaurant provides breakfast,
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lunch and dinner to guests and the general public. The number
of guestrooms may range from four to no more than 24. The
restaurant shall contain no more than 60 seats. (Class A SUP)
These activities are permitted as follows:
• Bed and Breakfast: Permitted within the Rural Buffer (RB),
Agricultural Residential (AR), Rural Residential (R-1) general use
zoning district subject to site plan submittal and approval (i.e.
administrative review and approval by staff).
• Bed and Breakfast Inn: Permitted within the Agricultural
Residential (AR) and Rural Residential (R-1) general use zoning
district subject to the issuance of a Class B Special Use Permit (i.e.
acted upon by the Board of Adjustment).
• Country Inn: Permitted within the Agricultural Residential (AR) and
Rural Residential (R-1) general use zoning district subject to the
issuance of a Class A Special Use Permit (i.e. acted upon by the
Board of County Commissioners).
e. Tourist Home defined as: A building or group of attached or detached
buildings containing, in combination, three to nine lodging units for
occupancy for daily or weekly periods, with or without board, and primarily
for occupancy by transients, as distinguished from rooming houses, in
which occupancy is primarily by residents rather than transients.
These activities are permitted within the following general use zoning
districts subject to the review and approval of a site plan (i.e.
administrative review and approval by staff):
• Medium Intensity Residential (R-4),
• High Intensity Residential (R-5, R-8, and R-13).
14. Will these land uses be changed as part of the new table of permitted
uses?
Yes. Staff is proposing to combine these activities into a new land use category,
specifically `Short Term Rental' further defined as follows:
A. Short Term Rental Small — A dwelling occupied by a host
which provides up to three guestrooms for overnight rental or
lease.
B. Short Term Rental Large — Host Occupied: A dwelling
occupied by a host which provides more than three
guestrooms for overnight rental or lease.
C. Short Term Rental — Non-host Occupied: A dwelling which
provides guestrooms for overnight rental or lease but is not
occupied by a host.
The following table helps to illustrate the transition:
49
Short Term Rental — Short Term Rental — Short Term Rental —
Small (1-3 bedrooms) Large (more than 3 Non-host occupied
bedrooms)
Bed and X
Breakfast (RB, AR, and R-1)
Reviewed and
approved by staff(i.e.
administrative
review)
Bed and X
Breakfast Inn (AR and R-1)
Reviewed through the
Class B Special Use
Permit process.
Country Inn X
(AR and R-1)
Reviewed through the
Class A Special Use
Permit process
Hotel/Motel, etc. X
(CC-3, CG-4, O/RM,
EDB-2, EDE-2, EDH
1 through 5,
MPD-CZ)
Typically reviewed
and approved by staff
(i.e. administrative
review)
The proposed amendments contain development standards governing the
development of Short Term Rental— Small and Short Term Rental— Large within
general residential zoning districts consistent with existing regulations.
Please note these changes are not intended to address the rental of a house for
single-family residential purposes. Additional information on this concern is
addressed below.
In addition to the changes outlined above, staff is also recommending:
• Short Term Rental— Non-host occupied:
o Should not be permitted within the EDB-1 and EDE-1 general use
zoning districts given the overall intent and purpose of the district;
50
o Be permitted by right within the EDB-2 general use zoning district
rather than through the Conditional Use permitting process as
currently required;
o Be permitted by right within the EDH-4 and EDH-5 general use
zoning districts consistent with direction received from the BOCC in
2016. Currently the use is not permitted within either of the
districts.
The existing Tourist Home land use category is being eliminated as part of this
process.
The existing Rooming House land use category shall continue to be permitted
under the `Residential Land Use' category in the same general use zoning
districts as detailed herein.
15.Is the rental of a house for single-family residential purposes impacted by
the proposed amendments?
The rental of a house for use as a single-family residence is not impacted by
these proposed amendments.
16.What about rental of a house for use as an Airbnb?
There are concerns over what authority Orange County has to regulate this
activity, which can be summarized as follows:
• Regulations controlling the duration of a private lease, or the nature of
occupancy of a private residence, go beyond regulating a property's use.
Such regulations could be construed as restraining the manner in which
the property is owned, which is prohibited by North Carolina case law.
• It is unlawful to regulate residential rental property by implementing
permitting programs or by requiring homeowners to pay a special fee.
• There is a State law, specifically the North Carolina Vacation Rental Act,
appearing to preempt local regulation of vacation rental agreements in
residential properties. The Act defines "vacation rental" as being the "[t]he
rental of residential property for vacation, leisure, or recreation purposes
for fewer than 90 days . . .."
From a regulatory standpoint, the proposed Ordinance amendment package
impacts rental of a residence as an Airbnb as follows:
a. Short Term Rental — Non-host Occupied is defined as follows: A dwelling
which provides guestrooms for overnight rental or lease but is not
occupied by a host;
b. The land use is not permitted for development within residential zoning
districts;
51
c. If a residence is rented (i.e. nightly/weekly), without the owner being
present on the property, we have a violation of local land use regulations
through the created of an unpermitted land use.
As currently recommended by staff, this activity would not be permitted within
residential general use zoning districts and would only be permitted in identified
non-residential general use zoning districts.
It should be noted this is consistent with current regulations as embodied within
the UDO.
17.How are airports being handled?
An airport is currently permitted within the Rural Buffer (RB), Agricultural
Residential (AR) and Rural Residential (R-1) general use zoning districts subject
to the issuance of a Class A Special Use Permit.
As part of these proposed amendments, staff is recommending:
• The use is eliminated as a permitted use of property within the RB, AR,
and R-1 general use zoning districts.
• Airports be allowed within the industrial general use zoning districts (i.e. I-
1, 1-2, and I-3) subject to the issuance of a Class A Special Use Permit.
Staff is also recommending further study of the existing development standards
and permitting requirements associated with airports.
18.1 am confused about the term `assembly' as it relates to the Assembly land
use category. How is this new land use category going to be used?
The `Assembly' land use category is defined as follows:
A land use providing space, indoors or outdoors, allowing for the
congregation of persons for the purpose of observing, listening, or
engaging in a service, performance, or activity.
Land uses permitted under this category are further defined as follows:
• Club or Lodge: An assembly land use, operated by a non-profit group, for
members and guests.
• Community Center: An assembly land use, operated by a non-profit group,
as a non-commercial activity.
• Place of Worship: An assembly land use primarily providing meeting areas
for the support or religious activities, services, and study.
• Retreat Center: An assembly land use operated as a commercial activity.
With the new construct, staff is proposing to breakdown various assembly land
uses based on the nature of the operation (i.e. commercial versus non-
commercial).
52
The permissibility of a given land use is directly related to the nature of same.
For example, the County will still be allowing places of worship (i.e. church,
mosque, synagogue, temple, etc.) as a permitted use in virtually all established
general use zoning districts (residential and non-residential). Assembly land
uses that are characterized as a commercial venture (i.e. retreat center) will
continue to be heavily regulated and require a heightened level of permit review
in residential general use zoning districts (i.e. reviewed and acted upon through
the Class B Special Use Permit process).
19.Does this mean development opportunities for wedding venues or other
similar `retreat center' activities are being expanded?
A `wedding venue' is still being considered a `Retreat Center' and will be
permitted accordingly.
Such land uses will be allowed in the following general use zoning districts:
• Rural Buffer (RB), Agricultural Residential (AR), and Rural Residential (R-
1) general use zoning districts through the review and approval of a Class
B Special Use Permit.
STAFF COMMENT: This is consistent with existing regulations and
no changes are being recommended.
• Neighborhood Commercial (NC-2), Community Commercial (CC-3);
General Commercial (GC-4); Economic Development Buckhorn Low
Intensity (EDB-1); Economic Development Eno Low Intensity (EDE-1);
and Economic Development Hillsborough Office/Retail (EDH-4) general
use zoning districts through site plan review process (i.e. staff review with
no public hearing).
STAFF COMMENT: This is a modification as requested by the
Planning Director to allow for additional commercial activities within
various non-residential general use zoning districts.
20.Why is the term `assembly' being used and won't that cause confusion with
the proposed `Manufacturing, Assembly, Processing' land use category?
Staff is recommending the use of the term `assembly' because that is the best
term to describe/summarize the land use category: a gathering or a group of
people for a specific purpose.
Staff does not anticipate any conflicts or confusion based on recommended
definitions and the context of word usage within the UDO.
53
Office of the County ORANGE COUNTY
Attorney P.O. BOX 8181
ibr na,oran ecg ountync. og_v 200 S. CAMERON STREET 172
(919) 245-2319 HILLSBOROUGH, NC 27278
��rth aEaC°��r
To: Planning Board
Michael Harvey, Current Planning Supervisor
Craig Benedict, Planning &Inspections Director
From: James Bryan, Staff Attorney
Date: March 20, 2019
Re: Staff Summary of Planning Board Concerns Over"Burden of Persuasion"
This memorandum is offered to provide the Planning Board with more detail related
to "burden of persuasion" and its inclusion in the latest draft of text amendments to the UDO's
Table of Permitted Uses. In order to give a comprehensive and structured response,this memo
will first give an overview and then follow with the specific questions as summarized by staff.
The UDO must be clear and unambiguous in order to regulate a use.
In 2015 the NC Supreme Court reaffirmed that zoning was a derogation of property
rights and thus requiring local governments to be clear regarding prohibitions and that any
uncertainty would be resolved against the prohibition. Many jurisdictions had utilized a Table of
Permitted Uses which was either malleable (uses were to be included in the nearest similar
category) or restrictive (non-listed uses were prohibited), both of which risked land use categories
to be allowed by right under this principle despite their intention to be regulated.
Current UDO is drafted with old mindset of describing what is allowed, rather than what is
prohibited.
Staff s amendments were aimed at clarifying the land use categories and their
definitions. As an example,the current definition of a"Large Day Care Home" includes:
"...provides day care for more than five but fewer than 16 children, within a residence." A
property with a land use that provides day care for 17 or more children does not meet this
definition. Being outside of an existing land use category's definition, such a use would be
prohibited under a restrictive perspective. However,when viewed in the perspective of requiring
clear and certain regulations,that same use could be argued as permitted by right as an
unregulated use.
Group homes have always been a difficult set of uses to adequately describe and regulate.
A particularly cumbersome grouping of land use categories dealt with those uses that
may be generally described as `group homes.' These uses have a long history of regulation and
associated litigation. The statutory landscape made it particularly difficult even without
consideration of whether of ToPU was malleable, restrictive or clear. Federal law had the
Americans with Disabilities Act and Fair Housing Act,while State law had its own Fair Housing
Act and particular statutes for"family care homes." The terminology and standards overlap but
Pb clarification v7
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do not align. Durham was one of several jurisdictions which have adapted by utilizing a
"reasonable accommodation"provision. Staff adopted this approach as a way to reconcile
Federal and State laws, as well as the realignment of the ToPU.
Utilizing an approach adopted by other jurisdictions saves staff from reinventing the wheel.
It is often the case that jurisdictions will copy regulatory language from one another.
This is particularly the case in complex matters which have been highly litigated or are
anticipated to be litigated. Ordinances are generally unique and require individual review by the
courts, but may avoid that where they are identical to previously litigated ordinances. Durham's
"reasonable accommodation"provision includes a section on burdens of proof. The closer
Durham's provision is replicated in its entirety and verbatim, the more likely that jurisdictions
may rely upon any future court review.
But Durham's description of`burden of proof' doesn't exactly match the OC UDO.
An ordinance must be read in its whole, and thus simply inserting a provision(such
as Durham's reasonable accommodations) may have unintended consequences. For instance, the
description of burden of proof is dissimilar to other sections. Whereas the Durham language is
explicit in naming it "burden of proof',the OC UDO instead describes it without label (i.e. states
that the applicant must produce the evidence); and Durham delineates burden of presenting
evidence from the burden of persuasion, while the OC UDO is silent.
Words have meaning and discrepancies may have impact.
At first blush these discrepancies may appear as a `distinction without a difference.'
However, it is important to recognize that the law has canons of construction which may give
merit to alternative interpretations. One such canon is to avoid rendering words or phrases as
superfluous or mere surplusage. In other words, every word matters and was not adopted by
accident. Another principle is that were language is used in one section but omitted in another, it
is to be generally assumed that this was done intentionally and purposefully for disparate
inclusion or exclusion.
Staff made choices; mostly verbatim adoption and some change to existing provisions.
Staff balanced several interests while drafting the present language. A strictly
verbatim inclusion from Durham could alter the intended meaning of existing provisions while a
deviation would reduce the potential reliance should it be tested in court. Staff chose a sort of
middle ground. Durham's notice provision is not included while existing sections were modified
to align more so (but not exactly) with Durham's burden of proof.
Pb clarification v7
I
55
j
1. The Board does not understand what `persuasion' means in this context and is
worried it is establishing an undue burden on applicants. Further the Board is
concerned over the `burden of persuasion' for an individual who does not have
the `means' to hire `a better attorney';
in their ordinary, everyday meanings. An ordinance may
Words are to be understoody, y y g Y
define a term to give it a specific meaning.
The dictionary defines "persuasion" as: the condition of being persuaded. It likely
should be read in context and in conjunction with other requirements, such as specific standards
(i.e. in harmony with the area) and the requirement that the evidence be "substantial." The
requirement for"substantial" evidence is found in both the UDO and the enabling statutes, and is
that which a reasonable mind would regard as being sufficient to support a specific conclusion.
2. The need for this language is questioned given `how' the UDO is structured
with respect to Variances,Interpretations, and SDP's;
The explicit description of burden of proof may not be necessary given the statutory
language that requires substantial evidence in the record. There may already be implicit that the
applicant bears this burden. However, procedural requirements included in the UDO must be
adhered to and will be construed by the courts. The courts will use canons of construction when
construing statutes and ordinances. In essence, words have meaning and discrepancies may have
impact such that describing a burden proof in one section but omitting it(or describing it
differently) in another section may have unintended consequences.
3. Board members are concerned requests could be denied because someone
decides, even with expert testimony and evidence, `you have not convinced me';
By statute "[e]very quasi-judicial decision shall be based upon competent, material, and
substantial evidence in the record." Case law indicates that"[w]hen an applicant has produced
competent, material, and substantial evidence tending to establish the existence of the facts and
conditions which the ordinance requires for the issuance of a special use permit, prima facie he is
entitled to it." Furthermore, "[a] denial of the permit should be based upon findings contra which
are supported by competent, material, and substantial evidence appearing in the record." In that
way, the burden can be seen as shifting—from the proponent to the opponent once a mere
sufficiency has been met.
Generally an exception is found where the standard is so general that it makes
production impossible or unduly difficult. One example of that is the standard of a project not
harming the public health, safety or welfare. There the initial burden is on the opponents to
demonstrate that the standard would not be met.
In addition,these can be altered by local ordinance as the procedural rules are binding,
particularly those designed to provide procedural safeguards for fundamental rights.
However, the designation of burden of proof to a particular party may be viewed
separately from the requirements that the supporting evidence be competent, material and
substantial. In particular, "substantial evidence"is that which a reasonable mind would regard as
being sufficient to support a specific conclusion.
Pb clarification v7
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In other words, the "burden of proof' in this instance appears to assigns who must make
a demonstration of evidence; while the standards describe what must be demonstrated by the
evidence (e.g. be in harmony with the area); and, "substantial evidence"requires it to be enough
in amount and quality so that it appears to be a rational decision.
The burden of proof is sometimes segmented into `burden of production' and `burden of
persuasion'. In these cases the burden of production is generally the evidence itself: testimony
and documents, while the burden of persuasion is the amount necessary to meet a standard such as
a"preponderance of evidence" (as opposed to "beyond a reasonable doubt"). The context may
alter the meaning, such as where it is segmented in one instance but not in another or where only
one segment is included.
4. Why the sudden need and so what if other jurisdictions are doing/have done
this. Has there been a change in State law mandating this?;
It is unclear what is being referred to as "sudden." The 2015 court case prompting staff
to amend the ToPU actually reaffirms a longstanding principle of law and cites both common law
and half-century old case law. Likewise,the Federal and State protections related to group homes
have existed for some time. However, the inclusion of reasonable accommodations is a relatively
new approach and was discussed at a Continuing Legal Education conference in 2018. The legal
department relayed that information to staff which at the time had not yet developed a
comprehensive approach to `group home' land use categories. Staff had initially indicated that
they intended to use the Durham approach verbatim, but a legal review revealed the omission of
the burden of proof section. After a discussion regarding the implications (reliance on potential
court proceedings and impact on construing other provisions) staff chose to make further
amendments which resulted in the last known edits.
5. Shouldn't we have `standards' outlining what persuasion means and how it
should be evaluated when making a decision?
There are several considerations as previously discussed above. There are certain canons
of construction, such as words being given their normal meaning. Any deviation would have a
corresponding impact when looking at relying on courts interpreting other similar ordinances.
While the current text amendment may be legally sufficient, there are certainly innumerable other
additions, revisions and edits which may just as legally sufficient while having a different balance
of considerations. Staff had indicated a preference for a single section describing a universal
`burden of proof but abstaining because of the time involved with drafting it and the potential for
further unforeseen impacts---all of which seems like reasonable considerations.
6. So does this mean staff also has the burden of persuasion and why is that not
referenced?
Unlikely. A burden of proof is typically singular, although it may shift. Here it seems
the burden is generally on the applicant. This is appropriate. It would be peculiar to have staff
placed with a burden of persuasion for anything other than for an appeal of an interpretation or
notice of violation.
Pb clarification v7
57
Attachment 5
1 MEETING MINUTES
2 DRAFT-ORANGE COUNTY PLANNING BOARD
3 MARCH 6,2019
4 REGULAR MEETING
5
6
7 MEMBERS PRESENT: Lydia Wegman (Chair),At-Large Chapel Hill Township Representative;Alexander Gregory
8 (Vice-Chair), Chapel Hill Township Representative;Adam Beeman, Cedar Grove Township Representative; Carrie
9 Fletcher, Bingham Township Representative; Laura Nicholson, Eno Township Representative; Patricia Roberts,
10 Cheeks Township Representative; Paul Guthrie,At-Large Chapel Hill Township; Randy Marshall, Bingham Township
11 Representative;
12
13
14 MEMBERS ABSENT: Hunter Spitzer,At-Large; David Blankfard, Hillsborough Township Representative; Buddy Hartley,
15 Little River Township Representative; Kim Piracci,At-Large;
16
17 STAFF PRESENT: Craig Benedict, Planning & Inspections Director; Michael Harvey, Current Planning Supervisor;
18 Tina Love,Administrative Assistant III
19
20 AGENDA ITEM 1: CALL TO ORDER AND ROLL CALL
21 Chair Lydia Wegman called the meeting to order.
22
23 AGENDA ITEM 2: INFORMATIONAL ITEMS
24 a. Recognition of Members Rotating Off the Board this Month
25 b. Planning Calendar for March and April 2019
26
27 AGENDA ITEM 3: APPROVAL OF MINUTES
28 February 6, 2019 Regular Meeting
29 February 6, 2019 Ordinance Review Committee Notes
30
31 MOTION by Laura Nicholson to approve the February 6, 2019 Regular Meeting Minutes and the February 6,2019
32 Ordinance Review Committee Notes. Seconded by Carrie Fletcher.
33 VOTE: Unanimous
34
35 AGENDA ITEM 4: CONSIDERATION OF ADDITIONS TO AGENDA
36
37 AGENDA ITEM 5: PUBLIC CHARGE
38 Chair Lydia Wegman waived the reading of the Public Charge
39
40 AGENDA ITEM 6: CHAIR COMMENTS
41 No Comments
42
43 AGENDA ITEM 7: UNIFIED DEVELOPMENT ORDINANCE(UDO)TEXT AMENDMENTS—REORGANIZATION OF TABLES OF
44 PERMITTED USES—To make a recommendation to the BOCC on proposed amendments to the UDO that would
45 reorganize the Tables of Permitted Uses in response to the Byrd v. Franklin Countyjudicial decision and modify other
46 sections to ensure consistency within the ordinance. These amendments are scheduled for BOCC public hearing on
47 April 2, 2019.
48
49 PRESENTER: Michael Harvey, Current Planning Supervisor
50
51 Michael Harvey directed the board to a packet of replacement pages which he mentioned he would review. He
52 advised the board that all motions recommending approval should be considered consistent with the Ordinance
53 Amendment package as modified by the staff. Mr. Harvey quickly reviewed the history behind the amendments
54 which were also mentioned were included in the abstract. He explained that the revised Table of Permitted Uses is
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55 intended to give laypeople a way to easily understand what they are able to do with their property. In August of 2017,
56 during a work session with elected officials,the Planning Director, and the County Attorney, staff was advised to
57 abandon the comprehensive listing of every allowable land use and to instead condense land use categories as
58 much as possible in creating the new table. Mr. Harvey stated the staff had created a fact sheet outlining the
59 changes, pages, and reasons why amendments were made to aid the Board in their review.
60
61 Mr. Harvey addressed replacement page 25(A)and explained that the County Attorney's office had asked staff to
62 include a provision in the Unified Development Ordinance(UDO)for reasonable accommodations for individuals with
63 handicaps. Mr. Harvey explained it was common place to have a provision in the ordinance providing handicapped
64 individuals with opportunities to seek variances from development criteria that could impact their ability to use their
65 property. It had been advised by the County Attorney's office that Section 2.25, a reasonable accommodation rule,
66 be adopted. In reviewing changes,the County Attorney identified a concern relating to not only the granting of
67 variances for reasonable accommodations but also variances, interpretations and Special Use Permits in general.
68 Although there had been sufficient language within the LIDO addressing burden of proof, Mr. Harvey informed the
69 board that the Attorney's office had requested to add specific language which he referred to on page 25 (A) in the
70 variance section. Mr. Harvey explained that the recommended language stated the applicant shall have the burden
71 of establishing by competent material and substantial evidence in the form of testimony, exhibits, documents,
72 models, plans and other materials that the application meets the requirements for approval of a variance and
73 furthermore,the applicant shall have the burden of persuasion on those issues justifying the approval of a request.
74
75 Lydia Wegman asked Mr. Harvey to clarify the meaning and he responded that the applicant now has the
76 responsibility of persuading the board that they are correct and that the request should be granted.
77
78 Michael Harvey explained that the language was referenced within applicable State statutes and was beginning to
79 appear in other local government ordinances to help applicants understand what their obligations under the variance,
80 interpretation,and special use permit review processes were. He said applicants have to prove their case to the
81 board and persuade members the competent material evidence and testimony offered justified the approval of the
82 request. Mr. Harvey advised that the attorney had an interest in adding the language"burden of persuasion"to
83 Section 2.11; Section 2.11.13,dealing with interpretations; and in Section 5.3.2.
84
85 Lydia Wegman questioned the meaning of the phrase and asked what the County Attorney's interpretation of the
86 phrase was as well. Mr. Harvey explained he only had the ability to explain his interpretation of the phrase, reiterate
87 what had been discussed, and commented that the felt the language was clear in that applicants always had the
88 burden to persuade review board's they should receive approval for their requests. The amendment merely seeks to
89 add the phrase to the UDO.
90
91 Lydia Wegman read from the packet, establishing by competent material and substantial evidence, and stated she
92 felt this covers what is required. She expressed disapproval for the language and found it to be vague and
93 uncommon.
94
95 Craig Benedict stated that applicants only had to explain what they are trying to prove along with items they are
96 submitting. He commented that he didn't believe an applicant had to go too far in adding an explanation of how the
97 standard is being achieved.
98
99 Michael Harvey reminded the board that variance interpretation and Special Use Permits are carried on in a different
100 format than a typical legislative hearing. He explained that the language is designed to ensure there is proper and
101 adequate dissemination of what is expected from applicants with the applicant bearing the burden of proof and with
102 having to persuade to the board that they are correct thereby justifying approval of the request.
103
104 Randy Marshall remarked that decisions should be made based on agreed upon facts, and he disapproved of
105 language found in the packet. He felt the applicant would not have any recourse for not being able to persuade the
106 board on their case and remarked the language would render verdicts based on opinions. Carrie Fletcher agreed
107 with Mr. Marshall.
108
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109 Michael Harvey expressed that he did not desire to lead the board in any one direction and remarked that it was
110 perfectly acceptable for the board to ask the County Attorney to provide something in writing before acting on any
111 Ordinance Amendment they felt uncomfortable with.
112
113 Lydia Wegman found the remark an intelligent suggestion.
114
115 Carrie Fletcher asked whether the language was leading to applicants having to retain legal guidance. Mr. Harvey
116 informed the board that state law does not mandate an applicant have an attorney nor does the ordinance but stated
117 it to be advisable for applicants entering a quasi-judicial hearing or a hearing requesting a variance observing a fair
118 trial standard to have the advice, counsel, or representation of an attorney.
119
120 Carrie Fletcher remarked that from a layperson's perspective, she felt the language was pushing civilians to have
121 legal representation.
122
123 Paul Guthrie commented that it could go both ways and stated it would be difficult situation if a person wanted to
124 litigate and had the means to do so.
125
126 Michael Harvey requested for Mr. Guthrie to elaborate on his comment so he could respond adequately and asked
127 whether Mr. Guthrie's concern was based on appeals or whether it would more difficult to deny projects. Mr. Guthrie
128 responded that he felt there would be a lot of litigation if the County Commissioners don't state in similar language
129 reason behind an applicant's denial.
130
131 Michael Harvey reminded the board that both the Board of Adjustments and the County Commissioners is
132 represented by the attorney's office. He explained the attorney representatives work with their boards to craft
133 decisions consistent with the evidence in the record. Mr. Harvey informed the board that once a public hearing is
134 closed on any Special Use Permit, variance application, or interpretation,the staff can no longer engage with the
135 board and only the County's appointed legal counsel can engage with them in crafting the appropriate decision based
136 on the Board's interpretation of the evidence and testimony in the record.
137
138 Paul Guthrie commented that it was quite conceivable for a court on appeal to find issue with the persuasion
139 language. He stated he found he language to be vulnerable to judicial attack.
140
141 Michael Harvey sought clarification on the boards'concerns,outlining them follows:
142 1. The board does not understand the rational for including the phrase"the applicant shall have the burden of
143 persuasion on those issues".
144 2. The board did not understand the plain meaning or impact of the term persuasion in this context;
145 3. The board wondered if there needed to be a standard specifically outlining what the applicant had to do to
146 persuade the Board of Adjusting or the BOCC an application should be approved;
147 4. The BOCC's review; the implications of appeals during litigation;
148 5. The implications of the phrase on the County's land use planning program; and
149 6. The boards'concerns regarding the findings of fact in denying or approving an action.
150
151 Lydia Wegman asked to add in, and why it is necessary. She further explained that even though the planning board
152 comes in earlier,a recommendation is still needed on the Special Use Permits and this becomes difficult for the
153 planning board.
154
155 Paul Guthrie stated he would feel a little bit better if there was another sentence added to indicate that if the boards
156 feel they have not been persuaded that they would meticulously document which items there were not persuaded on.
157
158 Michael Harvey clarified that he thought something of that nature was already in the ordinance. He acknowledged
159 that the language was not sitting well with the board and stated he was well aware that the board did not understand
160 the ramifications of the language and acknowledged that the board was not comfortable without the attorney
161 providing in person or writing some reason as to why it had to be added. Various members on the board agreed with
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162 Michael's statements. Ms. Fletcher remarked that she was not comfortable with the phrase. Ms.Wegman requested
163 clarification other than other jurisdictions have included this language.
164
165 Paul Guthrie question how burden is measured in litigation. Mr. Harvey acknowledged that this was another area of
166 concern for the board.
167
168 Adam Beeman commented that if all required items were checked off and an applicant had sound evidence,that the
169 boards could still deny their request if they decided they didn't like the project. He stated there needs to be a goal to
170 reach for and explained that an applicant should be able to reach for XYZ to get a variance. It should not be based
171 on the ability to convince someone to pass the applicant's problem.
172
173 Randy Marshall added the applicant needs to understand what the boards were not persuaded on to give them a
174 basis for appeal. Adam Beeman stated that he understood Randy Marshall's comment.
175
176 Michael Harvey reminded the board that every decision by either the County Commissioners or the Board of
177 Adjustment on Special Use Permits,variances, or appeals are automatically appealable within 30 days to the Orange
178 County Superior Court.
179
180 Randy Marshall expressed his desire to have the boards give reason for not being persuaded on an applicant's case.
181 He stated there should be a responsibility on the basis of the board members who don't agree to give a reason why.
182
183 Adam Beeman agreed. He expressed that this could pose an undue burden on the average homeowner. He
184 remarked that it would be a burden on an applicant to have to take the case to the Supreme Court of the County and
185 appeal because it didn't pass.
186
187 Alexander Gregory stated he was okay as it was originally written but expressed that there was some confusion with
188 the language upon hearing the concerns of the other board members. He explained that when he originally read the
189 language he understood it to mean that a person could have all their pieces together but that would not mean
190 someone on the board would agree with that person, and so they would have to take it a step further to explain and
191 to try to convince somebody who would be voting on it.
192
193 Adam Beeman questioned what the reason would be for denying an applicant. Alexander Gregory stated that
194 someone could have their own personal reasons for denying the applicant. He again stated that he understood it to
195 mean that they should be prepared even if they have everything in order.
196
197 Michael Harvey resumed his explanation of the amendments. He explained that 25 (B-F), articulated in the table, is
198 a renumbering of sections to make them now compliant with the flow. The next change on page 25(G) is the same
199 burden of proof language in interpretations. He then moved to Page 29 and explained it was included for
200 consistency. He explained that he made a change on page 30 in an attempt to keep the flow of pages correct. Page
201 29 updates a reference to the provision of the LIDO. He explained as pages are added and deleted, citations change
202 so instead of 5.1.4, it's now 5.1.3. He stated that the language on Page 30 has been there since the beginning, but
203 he had shown it as existing text, meaning it had not been highlighted in any way shape or form. It is new text and
204 has to be identified as new text,that's the change and that's the reason for footnotes. The note will also appear in
205 the master table provided to the board.
206
207 Michael Harvey mentioned that there were other changes to be discussed and continued to Page 56, under
208 recreation, Land Use, camp retreat. He explained that because of changes having to be made to the Assembly Land
209 Use, retreat centers would be split from recreation into assembly. Mr. Harvey explained that retreat had to come out
210 of recreation because of the character and the scope of the use and guided the board to this on page 56. He further
211 explained that they were also seeing the deletion of sweepstakes, cafe and parlor and stated that state law prohibits
212 them. The attorney has decided that if it's prohibited by state law, to let state law tell people it's prohibited and illegal.
213 When and if state law is ever changes this, an ordinance amendment will have to be done, but there will be a legal
214 basis for establishing a regulatory standard for that land use at that time. He explained that theaters were also being
215 moved as it is considered an assembly use. He explained that the board would also notice a renumbering as pages
216 are deleted or moved around.
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217 Craig Benedict questioned what a camp was by itself without retreat center. Mr. Harvey responded that a camp is
218 basically like a boy scout or summer camp. Mr. Benedict sought reassurance that it was not an assembly. Mr.
219 Harvey replied, no, and remarked it was a recreation activity.
220
221 Randy Marshall inquired if it was similar to Camp New Hope. Mr. Harvey replied that Camp New Hope would be
222 considered a retreat center. Mr. Harvey explained that Camp New Hope was established before the requirement for
223 a Special Use Permit. Per the ordinance, Mr. Harvey said,they have what is deemed to be a de facto Special Use
224 Permit. He explained that the camp is considered to be conforming and further explained that changes don't impact
225 anybody who had a Class B Special Use Permit for a retreat center in the county. He stated it does not undermine
226 any of the existing regulatory requirements that would grant the ability for someone to be considered conforming that
227 did a permit in the 60s or 70s.
228
229 Randy Marshall asked if conforming meant they would they have to change to be the New Hope Retreat Center. Mr.
230 Harvey replied, no.
231
232 Michael Harvey continued to the next change and guided the board to page 57. He spoke on the references to
233 dormitories,fraternities, and sororities and explained that those reference were being deleted because they are either
234 a rooming house or a multi-family land use. He stated they were already covered under the code so there would be
235 no reason to repeat it. Additionally, he explained that dormitories,fraternities,and sororities are also connected to
236 university operations which are required to get Special Use Permits under the code. He stated that there are none in
237 Orange County, so it was being deleted. Mr. Harvey informed that board that he had met with a few commissioners
238 the in the previous week and brought the concerns of airports to their attention. He mentioned that the
239 commissioners liked the notion of deleting the airports from the residential districts but did not find it appropriate to
240 move them into an industrial as recommended. He stated they liked the idea of doing further study to find better
241 ways to handle airports than what's currently in the code. He brought an additional concern the board and asked
242 them to consider what to do with someone who has a heliport or an airfield as an accessary use on their property.
243
244 Craig Benedict commented that these airports are allowed as accessory use to residential if it is for a private party.
245
246 Michael Harvey remarked, yes, and stated that the commissioners he had met with addressed that there needs to be
247 some thought about adopting some minimal standards for those types of activities.
248
249 Michael Harvey moved to page 61 and reminded the board that this was a topic they had touched on. He explained
250 that there used to be two categories wholesale trade durable and wholesale trade nondurable goods which were both
251 permitted in the same zoning districts and added that they are now being combined into one group,wholesale trade.
252
253 Michael Harvey explained the changes to assembly uses and stated that the recommendation is to eliminate the
254 overall category and splitting it out per use. He defined assembly use as a gathering of people for a purpose and
255 then explained the differences between various assemblies, such as places of worship, clubs, lodges,community
256 centers, theaters and retreat centers. Mr. Harvey informed the board that the changes were made to clarify the
257 distinction between the various types of assemblies. He stated that the changes addressed some of the loop hole
258 issues, but it was decided that they needed to rid of the over-arching category and splitting it per use. He addressed
259 the changes to special events as defined in the ordinance and asked the board to note the definition on the table that
260 had been provided. Mr. Harvey pointed out a regulatory standard which had been added into the definition of a
261 special event and informed everyone it had been moved to the appropriate section in the UDO.
262
263 Randy Marshall voiced his concern that anyone could say they were gathering to worship. Mr. Harvey asked him to
264 remember that determinations would be performed on a case-by-case basis, and he then reiterated the definition of a
265 place of worship. He explained that if a person is proposing a land use,the first task would be to determine whether
266 or not that person meets the requirements for what constitutes a place of worship.
267
268 Randy Marshall stated that he could argue that the categories that were just listed are exclusionary as opposed to
269 inclusive. He voiced that the felt this was a loophole being left open.
270
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271 Michael Harvey asserted that it would be the totality of all the definitions, standards and framework that would
272 establish the County with the authority to say they are a place of worship and reiterated it would have to be done on a
273 case-by-case basis.
274
275 Randy Marshall asked whether the Rams club would be considered a place of worship. Mr. Harvey stated that for
276 some people, yes, but it would be considered a club with respect to the construction of the UDO. Randy stated that
277 that was his pointed and commented that it was in the mind of the beholder. Mr. Harvey replied that he understood
278 but stated that it would be a club based on the current definition.
279
280 Alexander Gregory remarked that he thought there to enough logic there in the case-by-case basis.
281
282 Michael Harvey commented that Randy had a valid point but stated there would be larger issues involved if
283 everything remained in one central category. He explained it would be difficult to handle and try to make exclusions
284 instead of just splitting it out.
285
286 Craig Benedict commented that he felt as though there was something missing in regard to someone wanting to put
287 an assembly facility for retreat uses in a commercial area. He stated that this type of situation would have previously
288 been captured by the general category.
289
290 Michael Harvey remarked that if the board wanted to add retreat center as a permitted use in any commercial district,
291 they could do so and then staff could incorporate. Mr. Harvey recommended that since the board was already going
292 to ask the County Attorney for direction prior to voting, that they might want to add for the staff to consider allowing
293 retreat centers in commercial zoning districts as well. Mr. Benedict mentioned that they sort of had that and stated
294 he couldn't think of anything else to call it in the table.
295
296 Michael Harvey spoke on special events and mentioned that it was split out. He explained there was now a
297 distinction between rural special events and special events and stated that rural special events by definition have to
298 happen on a farm. He continued to page 69(A)through 73 and stated there were only formatting changes. He
299 then reminded everyone of the provision he spoke of earlier regarding the burden of persuasion in section 5.3.2. He
300 then moved to page 74 which eliminates all the regulatory standards for governing how we approve dorms,fraternity,
301 and sororities. He stated 74 (A) had changes in formatting. He briefly spoke of the change performed on page 79
302 dealing with Class 2 kennels and explained any changes that occurred.
303
304 Michael Harvey then guided the board to pages 79 through 83 regarding short term rentals. He said they had
305 lumped everything into term short-term rentals and explained that they had eliminated all the discretionary standards
306 of evaluation per the attorney's requirements. Additionally, Mr. Harvey mentioned they had eliminated some of the
307 language listed for short term rental large referencing that it had to demonstrate a compliance with parking which
308 was already mandated by the ordinance.
309
310 Lydia Wegman, asked Mr. Harvey if he meant for rentals. Mr. Harvey replied, yes and explained that a site plan
311 would have to be submitted and it would have to demonstrate compliance with the code.
312
313 Michael Harvey stated there has been questions raised about how this impacts Airbnb. Mr. Harvey stated that the
314 current ordinance does not allow for nonhost occupied structures in the residential zoning districts. He stated, if you
315 want to go through a Special Use Permit,you can technically have a non-host occupied structure, but you can't have
316 an Airbnb. Furthermore, if you don't have a host then it's not a short-term rental and therefore is not permitted. In
317 fact, Mr. Harvey stated, it would be a nonhost occupied short-term rental which is not permitted in residential districts
318 and that is consistent with the current code. This does not impact the rental of a house for use as a single-family
319 residence.
320
321 Randy Marshall, does this knock down the arboretums desire to use that house as an Airbnb
322
323 Michael Harvey conveyed that there would still be existing impacts on the Keith Arboretum from the current code.
324 Mr. Harvey said that it didn't add any heightened level of complexity to their ability to do that and questioned whether
325 or not the lease allows it to happen in the first place.
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326
327 Randy Marshall sought clarification on whether they were proposing that would be an Airbnb without a host.
328
329 Michael Harvey confirmed and stated that this knocks that down but commented that he would argue it already
330 knocked down under the current code.
331
332 Patricia Roberts questioned the time difference between renting a single-family home versus being an Airbnb. Mr.
333 Harvey responded that both short term rental small and large talk about rental by the week. He stated they were
334 not likely to get into the policing business to find out how long occupants have rented if onsite and further stated the
335 problem usually arises when the occupant is not home.
336
337 Paul Guthrie asked about faculty renting out when they go on a sabbatical somewhere.
338
339 Michael Harvey responded this would be the rental of a house as a single-family residence. He then mentioned the
340 facts table provided in the packet. He commented that the goal was not to prevent the rental of housing for use as
341 housing. The goal would be to prevent the conversion of a residence into a mini hotel in an established
342 neighborhood.
343
344 Michael Harvey continued on the amendments and guided the board to pages 83, 84, 99 and explained those to be
345 just formatting updates. He stated page 100 to be the move of retreat center standards to eliminating retreat as a
346 camp and explained that page 104 deals with theater as it gets moved to assembly. Mr. Harvey stated that page 145
347 describes the assembly uses;the general use standard,setback standards, the size limitations. Then, he moved to
348 page 153 to touch on the retreat center standards in terms of submittal and SUP requirements and explained that the
349 new section 5.18.4. concerning rural special events was not changed. The term theater had now been added, since
350 it was moved from recreation.
351
352 Lydia Wegman asked Mr. Harvey if retreat center remained the same. Mr. Harvey replied,yes, but stated with one
353 notable exception;the deletion of camp sites. In the standards of evaluation for both, he stated there was a standard
354 of evaluation involving a site plan requirement which is why it was moved to submittal requirements for both camp
355 and retreat. Mr. Harvey also conveyed that the subdivision provisions for special use permits and
356 telecommunications regulations would probably be gutted as they are redundant.
357
358 Lydia Wegman sought clarification on why Mr. Harvey thought they were superfluous and asked if they were covered
359 elsewhere. Mr. Harvey confirmed they were in three different sections.
360
361 Michael Harvey guided the board to page 174 and informed them that he definition of assembly use had been
362 altered. He explained that since assembly has been split out and retreat center has been moved to assembly land
363 uses, it would no longer be needed.
364
365 Craig Benedict questioned where wedding fits into assembly uses. Mr. Harvey replied, retreat center.
366
367 Craig Benedict commented that if weddings are retreat centers, then they needed to be in more commercial area
368 locations so people can have a wedding in some sort of hall. Michael Harvey remarked that the board could make
369 that recommendation. He responded to Mr. Benedict and stated he had never heard this comment from him before.
370 Craig replied that it had been covered by the whole assembly uses except as listed below and stated it was permitted
371 in multiple areas.
372
373 Lydia Wegman questioned whether there was anything specific about wedding venues anymore. Michael Harvey,
374 replied, no, and said it was all covered under the retreat center concept.
375
376 Michael Harvey said that club or lodge,was amended as relayed earlier, as was community center. He moved to
377 page 182 involving family care facilities and read the recommended definition. He stated that upon further
378 consideration,the County Attorney decided the language should say as defined as under state statute.
379
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380 Lydia Wegman questioned if that was the definition. Mr. Harvey replied, yes, and informed them that the new
381 definition would now read as a facility which meets the definition of a family care home and North Carolina General
382 Statute 168. Ms. Wegman inquired if state law already says this,whereas Mr. Harvey agreed.
383
384 Michael Harvey informed the board that they had already seen the definitions for group care and group facility/group
385 home. He continued on to page 197 and 198 which he pointed out was the area where the place of worship
386 definition that had been added. On page 199, Mr. Harvey explained a typo in the term recreation vehicle. He then
387 spoke on the modifications listed on page 202 involving retreat centers and then moved to the rooming house
388 definition previously discussed. On page 204, Mr. Harvey mentioned the modifications to the reference of the North
389 Carolina Department of Public Instruction formerly the North Carolina Department of Education. He then proceeded
390 to the short term rental and explained his reasoning for deleting the umbrella definition he had previous created. Mr.
391 Harvey then guided the board to the topic of vet clinic on page 210.
392
393 Patricia Roberts asked why it would matter if the dog or cat stayed overnight. Michael Harvey answered that it
394 would depend on where it is permitted in terms of what could be the ancillary impacts to adjacent property owners.
395
396 Patricia Roberts commented that she couldn't imagine having a veterinary clinic that didn't have overnight
397 accommodations in situations where surgery didn't go well.
398
399 Lydia Wegman read the definition of a retreat center and asked Mr. Harvey to clarify that was the entire definition.
400 Mr. Harvey remarked,yes.
401
402 Lydia Wegman asked for where information on assembly land use was located. Mr. Harvey explained that assembly
403 land use would be defined in the code and proceeded to read the definition. He stated the definition was modified to
404 eliminate references to wedding venues and referenced the packet.
405
406 Randy Marshall asked if wedding venues would actually appear in the ordinance. Mr. Harvey replied, no, and
407 specified that the reason was because it was not just wedding venues. While some in the community want wedding
408 venues specifically listed so we can regulate them,the impact of a wedding verses a graduation party verses a bat
409 mitzvah is the same. They are all described as a gathering of people for"X"purpose. He explained that instead of
410 regulating wedding facilities,they would regulate the totality of the activity which is the reason for the change in the
411 retreat center definition.
412
413 Laura Nicholson asked Mr. Harvey if it would be possible to separate all the other changes. Mr. Harvey replied that
414 he would not be comfortable advising the board to recommend moving this forward with the items eliminated as the
415 County Attorney specifically asked for them to be included. Mr. Harvey furthermore reiterated that based on the
416 boards'comments, he understood that the board would not be interested in approving it without further explanation.
417 He then asked the board if they we're in agreement whereby there was an agreed consensus by several board
418 members.
419
420 Lydia Wegman questioned whether the board should postpone voting until next month or if it was something that
421 could be addressed with the County Attorney and then to the board through mail. Mr. Harvey conveyed an urgency
422 in completing the project, but stated he was sensing the board to be unhappy and unlikely to act without further
423 explanation.
424
425 Lydia Wegman replied that that is certainly how she felt about the burden of persuasion language.
426
427 Carrie Fletcher I would have an issue finalizing this unless I'm clear on that particular item. I think that's a strong
428 enough decision maker that I would like clarification on that.
429
430 Michael Harvey remarked the litany of concerns would be recorded in the minutes.
431
432 Carrie Fletcher asked if conversations and approval could be done by email so there was no time lost. Mr. Harvey
433 stated he didn't see a way to get an approval via email. Mr. Harvey voiced a concern that everyone might not come
434 to a consensus causing there to be a holdup.
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435
436 Carrie Fletcher asked the members of the board if everyone would be okay with it if the sentence was struck. Ms.
437 Wegman replied that she would want to know why the attorney was comfortable striking it having felt strongly about
438 putting it in.
439
440 Michael Harvey reminded the board that they could recommend approval as amended and then further amend that
441 the term burden of persuasion get removed. He mentioned to them that he thinks the County Attorney may show up
442 that public hearing and say the language has to be added back in.
443
444 Carrie Fletcher questioned whether the burden of persuasion language could be made clearer. She even suggested
445 possibly listing it out.
446
447 Michael Harvey replied that he didn't disagree but pointed out that it could possibly be referred right back to them to
448 modify language. Mr. Harvey addressed their unease and reiterated no one was happy with the burden of
449 persuasion based on it's not understood, they don't like it, they don't feel it's been adequately explained,and they
450 want the attorney to give more understanding as to why it's needed.
451
452 Alexander Gregory commented that the likes the point that it makes.
453
454 Randy Marshall asked whether there was pressure to complete this. Mr. Harvey stated,yes.
455
456 Alexander Gregory stated his faith in the attorney's judgement but questioned if they attorney would make the final
457 call or if it would make a full circle.
458
459 Michael Harvey provided the option that they could technically adjourn the meeting to a day time certain reconvene in
460 two weeks in order to get the attorney's comments.
461
462 Adam Beeman asked whether they would have a chance to discuss their concerns with the attorney or just receive
463 comments. Mr. Beeman voiced his desire to have a discussion with the County Attorney. Michael Harvey replied
464 that they could request the attorney be present and reiterated the option of reconvening to March 201".
465
466 Paul Guthrie spoke on burden and stated it could only be valued by the vote of the commissioners. Mr. Harvey
467 replied that Mr. Guthrie was correct. Mr. Guthrie described it as a self-serving definition. Mr. Harvey stated it
468 certainly would be up to the Board of Adjustment members and Board of County Commissioners to determine if that
469 burden had been met.
470
471 Paul Guthrie question why it was not said that way instead of the other way around. Mr. Harvey, acknowledged that
472 it was a good question but stated he did not have an answer.
473
474 Michael Harvey asked if everyone would be available in two weeks and asked for confirmation that he was hearing
475 that it was the board's interest to adjourn the meeting to March 20th at 7:00 p.m. in order to ask the attorney to be
476 present to answer questions or if absent, to provide sufficient documentation articulating why burden of persuasion is
477 necessary.
478
479 Lydia Wegman clarified that they not only wanted a statement, but an addition to the ordinance clarifying the meaning
480 and why he felt compelled to add it.
481
482 Michael Harvey asked whether he was also hearing that the board is interested in modifying the UDO to expand
483 retreat center activities in commercial districts.
484
485 Adam Beeman remarked he would motion that.
486
487 Lydia Wegman stated she would agree to that.
488
489 Carrie Fletcher stated she felt more strongly about the first than the second.
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490
491 Michael Harvey questioned whether that was the interest of the board members.
492
493 Lydia Wegman stated she would support that.
494
495 Alexander Gregory stated he agreed.
496
497 Michael Harvey asked it there was a motion.
498
499 Adam Beeman stated that he motioned that they be allowed in the commercial districts.
500
501 Michael Harvey gathered clarification on the motion from the group and noted that the board's desire to:
502
503 1) Adjourn till March 20th at 7:00 p.m. meeting in the Planning Conference Room room 204 to have the County
504 Attorney present and discuss why and potential changes to address the concern of what the term burden of
505 persuasion means.
506
507 2) To have staff include additional opportunities for retreat centers in commercial districts.
508
509 Lydia Wegman stated she would second.
510
511 Carrie Fletcher asked if that would finalize everything Mr. Harvey needed. Mr. Harvey agreed, but then responded
512 that it would depend on the board's comfort with the attorney's response.
513
514 Lydia Wegman commented that they trusted Mr. Harvey would express to the attorney their discomfort with the
515 language as it is.
516
517 Michael Harvey said he understood both the attorney's rationale and the boards'concerns. He stated he felt he had
518 provided the best explanation he could offer but understands that they would like to have a discussion with the
519 person recommending the language.
520
521 Lydia Wegman expressed that if the attorney feels persuaded that the language is necessary that he gives some
522 further thought to expressing it more clearly so that the standard is clearer to applicants, the BOCC, and Board of
523 Adjustment
524
525 Carrie Fletcher commented that that is the reason we have a citizen board, so citizens are represented, not just
526 attorneys.
527
528 Alexander Gregory asked if either Mr. Harvey or Mr. Benedict foresaw any issues that could arise with the burden of
529 proof or if they had heard of any issues arising from the other jurisdictions currently using the language. Mr. Harvey
530 replied, no, and reassured them that if he couldn't dissuade their concerns he would provide them with an opportunity
531 to have their concerns addressed.
532
533 Craig Benedict provided an example for the use of burden of persuasion to the board.
534
535 Adam Beeman expressed his disapproval with the language and found it to be unfair. He expressed that the
536 situation should be binary and not at the whim of person listening to the story, nor should a person have to pay more
537 money to fight their cause when they may not be financially able to do so.
538
539 Lydia Wegman asked Mr. Harvey if there needed to be a motion and a vote.
540
541 MOTION by Adam Beeman to adjourn this meeting until the attorney can come back and talk to us on March 201h at
542 7:00 p.m. in this room on the 2nd floor of the Planning Department and to add the wedding retreat status to the
543 commercial districts.
544
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545 Lydia Wegman requested to add that the board would like an explanation from the attorney related to the burden of
546 persuasion language and we would prefer to see additional language explaining what is meant if he is persuaded that
547 that language is necessary. Seconded by Randy Marshall.
548 VOTE: UNANIMOUS
549
550 Tina Love asked Mr. Beeman if he accepted the addition,whereas Mr. Beeman accepted.
551
552 AGENDA ITEM 8: ADJOURNMENT
553 The meeting was adjourned by consensus.
554
555
556
557 Lydia N. Wegman, Chair
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1 MEETING MINUTES
2 ORANGE COUNTY PLANNING BOARD
3 MARCH 20,2019
4 SPECIAL MEETING
5
6
7 MEMBERS PRESENT: Lydia Wegman (Chair),At-Large Chapel Hill Township Representative; Kim Piracci,At-Large;
8 Adam Beeman, Cedar Grove Township Representative; Carrie Fletcher, Bingham Township Representative; Patricia
9 Roberts, Cheeks Township Representative; Paul Guthrie,At-Large Chapel Hill Township; Randy Marshall, Bingham
10 Township Representative; Hunter Spitzer,At-Large; David Blankfard, Hillsborough Township Representative;
11
12 MEMBERS ABSENT: Buddy Hartley, Little River Township Representative; Laura Nicholson, Eno Township
13 Representative;
14
15 STAFF PRESENT: Craig Benedict, Planning & Inspections Director;James Bryan, Staff Attorney; Michael Harvey, Current
16 Planning Supervisor; Tina Love,Administrative Assistant III
17
18 AGENDA ITEM 1: CALL TO ORDER
19 Chair Lydia Wegman called the meeting to order.
20
21 AGENDA ITEM 2: PUBLIC CHARGE
22 Chair Lydia Wegman waived the reading of the Public Charge
23
24 AGENDA ITEM 3: CHAIR COMMENTS
25
26 AGENDA ITEM 4: UNIFIED DEVELOPMENT ORDINANCE(UDO)TEXT AMENDMENTS—REORGANIZATION OF TABLES OF
27 PERMITTED USES—To continue review of and make a recommendation to the BOCC on proposed amendments to the
28 UDO that would reorganize the Tables of Permitted Uses in response to the Byrd v. Franklin County judicial decision
29 and modify other sections to ensure consistency within the ordinance. These amendments are scheduled for BOCC
30 public hearing on April 16, 2019.
31
32 PRESENTER: Michael Harvey, Current Planning Supervisor
33
34 Michael Harvey: I'm going to make a very brief summary. So obviously,you have an abstract outlining why we are
35 here this evening. There are tweaks that have been made to the packet and I want to review them very quickly. You
36 also have a revised attachment one that spells out the changes that have occurred within the proposed table. At your
37 last meeting there were concerns over the term burden of persuasion and what it meant. There were questions asked
38 which I forwarded to the attorney's office. I'll let Mr. Bryan speak to those in a moment. There was also a request to
39 allow retreat centers in additional non-residential zoning districts as permitted use, so you'll note from the abstract we've
40 allowed them within the neighborhood commercial,community commercial,general commercial, Economic
41 Development Buckhorn low intensity, Economic Development Eno low intensity, Economic Development Hillsborough
42 office retail districts at the request of the Planning Director. There are tweaks to Section 2.10.3 and this is where we
43 start getting into the discussion on modifications adding language associated with an applicant's burden of proof. As
44 pointed out at the last meeting the sentence reads as follows, 'applicants shall have the burden of establishing by
45 competent material and substantial evidence in the form of testimony, exhibits, documents, models, plans and other
46 materials,that the application meetings the requirements for approval of a Variance it's application meets'. So that is in
47 Section 2.10.3 and 2.11.3 what I would like the Board to do before we get into the discussion of burden of persuasion,
48 because regardless of whatever happens with burden of persuasion, I'd like there to be a motion to accept the
49 amendment to Section 2.10.3 and Section 2.11.3 replacing meetings with meets.
50
51 Randy Marshall: So moved
52
53 MOTION by Randy Marshall to accept the amendment to Section 2.10.3 and Section 2.11.3 replacing meetings with
54 meets. Seconded by Carrie Fletcher.
55 VOTE: Unanimous
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56
57 Michael Harvey: I would also like there to be a motion acknowledging and accepting the changes to the Table of
58 Permitted Uses that you saw last month to include Retreat Centers in the districts I named.
59
60 Randy Marshall: So moved
61
62 MOTION by Randy Marshall to acknowledging and accepting the changes to the Table of Permitted Uses to include
63 Retreat Centers in neighborhood commercial, community commercial,general commercial, Economic Development
64 Buckhorn low intensity, Economic Development Eno low intensity, Economic Development Hillsborough office retail
65 districts. Seconded by Hunter Spitzer
66 VOTE: Unanimous.
67
68 Michael Harvey: Let me introduce Mr.James Bryan of the county attorney's office to discuss burden of persuasion.
69
70 James Bryan: I'm a staff attorney here in Orange County. Michael mentioned to me that there were some particular
71 concerns you have been wrestling with regarding the Table of Permitted Uses. I drafted a memo. The last two pages
72 are the actual questions that Michael forwarded to me with the answers, but I thought it would be easier to just work
73 from the beginning. Let's start at the beginning of why staff came up with changes to the Table of Permitted Uses.
74 There was a court case in 2015, Franklin vs. Byrd, in which the state said all the local governments along with the state
75 have been doing this wrong for a long time. Zoning is a derogation of property rights and anything ridding of
76 somebody's property rights is a higher standard than normal stuff,so you have to be clear when you do that. Our
77 current UDO is written similarly to many jurisdictions in the state where the state says we're going to tell you what you
78 can and can't do. The Byrd court said, no,you don't tell people what they can do, it's assumed they can do whatever
79 they want, and you have to tell them what they can't do. You have to very clear and when there's ambiguity it will go in
80 favor of the property owner. You can think of the Table of Permitted Uses as things you can and can't do. There is also
81 a middle ground that says these are the different categories and we're going to bump you in to whatever is closest to it.
82 If you want to prohibit something, you have to be clear about it. An example of how the LIDO was constructed for that is
83 with the definition of large daycare homes which provides daycare for more than 5 but fewer than 16 children within a
84 residence. The idea was it was regulating within the definition; 17 children wouldn't be captured by that definition since
85 it's 5 to 16. Under the current UDO if you have 17 children in the home,we were presuming that you weren't allowed
86 because you didn't fall under the definition. Byrd flips that and says if you're not a large daycare home,which you are
87 not with 17 kids,then you're not regulated and not listed in the Table of Permitted Uses so it's assumed that you can go
88 about your business. Group homes have always been a difficult subset of Land Use Categories because there's state
89 and federal laws about group homes like halfway homes and addiction centers. Both the state and federal have
90 particular regulations for group homes through the ADA,Americans with Disabilities Act and through fair housing. The
91 problem is they overlap. Under the old system where you said, I'll tell you what you can do, it's okay to regulate them
92 like that. With this one, it's going to be tough to have a very explicit set of uses for that. A lot of other jurisdictions have
93 added something to their development ordinance which you can call reasonable accommodation which the law requires
94 for ADA and fair housing. It's a great time to address that because it also addresses the idea that we want broad
95 categories, so they are regulated. The federal and the states are saying you can't be so broad with these protected
96 classes, so we're being broad but also giving them an escape of reasonable accommodations. Durham and Ashville
97 have adopted this, and now staff is proposing this. There are different ways to approach this. You could have very
98 precise definitions of land use categories to meet state and federal guidelines, or you could develop your own
99 reasonable accommodation section. It is both common and useful to steal from other jurisdictions as Durham has
100 already adopted this so go ahead and steal from them. This helps serve two purposes; the first is saving staff time and
101 the other is when something is complex and can lead to litigation,you look to the court to see whether it is applicable to
102 you. Durham and Ashville has been untested so it's more of a prospective use. Having it match as closely as possible
103 influences the reliance on it. Durham's reasonable accommodation has a section on burden of proof which includes
104 burden of persuasion. When first reviewed with Michael, he had eliminated that section, and I told him if there's any
105 change that's going to impact how it's relied upon later, maybe it makes a difference, I don't know? Michael stated he
106 would put it back in, but by putting it back in, it doesn't line up with the rest of our UDO as the rest of the UDO has
107 different processes for Special Use Permits, Appeals, Interpretations, and others. It talks about what is basically
108 burden of proof, but it doesn't use the same words in the same way that Durham did for theirs. When reading our UDO,
109 it has different words for the same process. There's construction, the way the courts are going to read this when
110 reviewing it which says words have meaning and purpose and when they are done differently in different sections that's
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111 intentional for different purposes. So,staff met in the middle and used the Durham one, I think verbatim, and then
112 changed the other sections of the UDO. It's important to know because there's a context of it that the words have
113 meaning and has to be the same in different places. The first, is the construction in which words have their normal
114 every day meaning and unless defined will be from the dictionary. I would believe that persuasion here has to be
115 looked at in the context of that it is usually used in a board's determination for a quasi-judicial determination. I don't
116 think you have a burden of persuasion for a staff level determination in the UDO. You are probably going to rely on the
117 fact that in the statutes the language talks about substantial evidence where you need competent, material, and
118 substantial evidence sufficient to make your proof. Material is something related to the thing at hand and competence is
119 that which could be used in a court, it's reliable. Substantial is that which a reasonable mind would regard as being
120 sufficient to support a specific conclusion which can be found on the third page under 1, the last sentence. Substantial
121 evidence is that which a reasonable mind would regard as being sufficient to support a specific conclusion. This to me
122 is a fairly low bar. Reasonable minds can disagree, but there are some things that are just not disagreeable. It is what
123 a reasonable mind would regard as being sufficient to support a specific conclusion. The next question forwarded by
124 Michael is, the need for language in the question given; how the UDO is structured with respect to Variances,
125 Interpretations,and SUPs. This is again the idea that discrepancies can have major impact. If you say staff such as
126 Michael and Craig Benedict in multiple sections and then say staff such as Michael,this is candid construction and
127 there's an omission. Craig was left off on that last one and you might say Craig hadn't been hired when that part was
128 drafted, but the court upon reviewing it will see it as a purposeful omission, something that was meant for Michael but
129 not Craig. This is the reason the different sections should be as uniform as possible. The greater the variance between
130 the different sections the more ambiguous and less likely it is to be upheld. The third concern; Board members are
131 concerned that requests could be denied because someone decides even with expert testimony in the evidence you
132 have not convinced me. By statute, everything has to be based upon competent material and substantial evidence and
133 local rules have to be followed. It can be tinkered with to create more procedures and processes and can be exhaustive
134 in description, but you run the risk of not doing it perfectly and anything in the definitions will be upheld. If you don't say
135 anything, you can likely rely on the statutes and precedent.
136
137 Lydia Wegman: I don't have a problem with the burden of proof, but what is puzzling to me is that the applicants have
138 the burden of the competent material, substantial evidence,what meets the requirements for approval of the variance. 1
139 don't understand what the burden of persuasion language adds, and it seems to confuse the issue. Although Durham
140 has put it in, it has not been legally tested, and is not persuasive to me.
141
142 James Bryan: My job is to work for the Board when they're considering this,that it is legally sufficient, and that they're
143 aware of the risks. My concern is that you all understand this and understand the risk involved.
144
145 Lydia Wegman: I'm not understanding what the risk is of not having the sentence,further the applicant shall have the
146 burden of persuasion on those issues.
147
148 James Bryan: If you don't have Durham's verbatim,you can't rely on it.
149
150 Lydia Wegman: But Durham's has never been tested,this is their creative approach.
151
152 James Bryan: Right.
153
154 Lydia Wegman:What if ours was tested first?
155
156 Hunter Spitzer: Do you know what they have done to justify doing this?
157
158 James Bryan: No.
159
160 Carrie Fletcher: So,we are just following them just because?
161
162 James Bryan: No, I don't believe so. One reason we are following them is because staff has been working on this for
163 years. We could come up with a whole new one but then Michael would have to come up with all new language, it
164 would have to be reviewed by me, he would have to bring to you, and it would be a longer process. This is a quick
165 process, and I've told Michael that what Durham does is legally sufficient.
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166
167 Lydia Wegman:What would make it legally insufficient to leave out the sentence about the burden of persuasion. 1
168 understand you to say that we are just going to follow what they are doing.
169
170 Hunter Spitzer: Why it is insufficient without the burden of persuasion, it is because then we can't rely on their standard?
171
172 James Bryan: It is not legally insufficient.
173
174 Lydia Wegman: It would not be legally insufficient if we deleted that sentence, is that correct?
175
176 James Bryan:Yes.
177
178 Lydia Wegman: I understand why you need a statement about burden of proof and where it falls, but it's that last
179 sentence that's hanging me up.
180
181 James Bryan: I would encourage you to allow me to explain burden of proof, burden of persuasion, and burden of
182 production. It's one thing to think it's legally sufficient so we can do it, but we should all have our own reason. If I had
183 my way,we would just rely on the statutory language, but that is not how our LIDO is set up. Our UDO is hundreds of
184 pages reiterating and expanding upon the statutes. We talk about burden of proof, but we don't use those words so
185 much and use the statutory language some but it's really a modification of everything. Durham has their own
186 modification, different but fairly similar. The burden of proof is an umbrella term that is usually broken down into burden
187 of production and burden of persuasion. Production could be the tangible items,the witness or the documents, and the
188 persuasion could be the arguments that support that. It could also be in different context that the burden of production
189 is when the burden shifts. If you were in civil court in the state of North Carolina,you would file a lawsuit with the first
190 motion of summary judgement.You would have a hearing to ask the judge to throw out the case just based upon what
191 you have because you don't need a trial. This has a different standard for it than a trial. There you have a different
192 burden of production than you would have at the trial. In that context, it has a different meaning, so you have to look at
193 what you have here. I think what Durham does is fine. It is a little wordy, not very user friendly, and has too much
194 legalese, but I don't believe ours to be the gold standard either. There are hundreds of pages in the UDO and there are
195 a lot of things that I don't think are best practices, but if it's not being changed right now it has opened up a Pandora's
196 box to mess with everything. By peeling away at the UDO,you bring up other issues and that's how the reasonable
197 accommodation came in. I think the staff has done a good job about addressing the problems that came up and the
198 next thing was this burden of persuasion and how to get it to either to match Durham's or to meld with ours.
199
200 David Blankfard: In our UDO is there a definition for burden of persuasion? When I looked it up,there is an article from
201 Law Cornell that says the definition for burden of persuasion. Can we have that put in as this is what this means, along
202 with the need for factuals, information, and for it to be presented?
203
204 James Bryan: Yes, but I recommend against it. It makes sense to clarify, but if you have a definition of it,you are
205 defining a term used by Durham and Durham might define it differently and you therefore lose that benefit from it. If you
206 are silent then you could say, yes,that is what we meant. I think you are not at a risk when you say,yes,that is what
207 we meant because I think burden of persuasion and burden of proof is so well established in the law that is it
208 competent, material, substantial evidence for the standards found in the UDO.
209
210 Hunter Spitzer: I am still confused with how burden of persuasion is distinct from burden of proof. How is adding
211 persuasion something more than just burden of proof? What does it add that we wouldn't have without it, and what
212 makes that different than just the regular burden of proof defined in case law?
213
214 James Bryan: I think what I am hearing is that you've added that the burden of proof is broken down into production
215 and persuasion. Production is the documents and persuasion is the arguments. In the LIDO,we are explicit that the
216 burden is on the applicant to produce the documents but didn't say anything about the arguments. It was implicit and
217 this is making it explicit.
218
219 Hunter Spitzer: This definition is only added in 2.10.3 and 2.11.3?
220
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221 Michael Harvey: No, it was added to 2.10.3, 2.11.3, 5.3.2,the sections dealing with Variances, Interpretations and
222 Special Use Permits.
223
224 Hunter Spitzer: Okay.
225
226 Carrie Fletcher: Part of the comments were to keep it so the average person could do it on their own without legal
227 assistance and to keep it cost effective.You understand the terminology, but the average person may not and therefore
228 you are going to end up requiring the applicant to hire legal help.
229
230 James Bryan: I understand that, and I think you are defeating the purpose if you don't expand it. It's 600 pages and not
231 user friendly to begin with. If you were to leave the burden of persuasion out and leave it implicit, then those wily
232 attorneys are going to be only ones able to pick that out while the average person wouldn't look for the loopholes.This
233 is closing the loopholes and making it harder for attorneys to get around the system.
234
235 Randy Marshall: This seems to create loopholes. If there is no concrete criteria for persuasion, any attorney can
236 challenge not being persuaded when there is no criteria or definition for persuasion. It is left up to the governing board
237 to say,whatever you put out there, I am not persuaded. It provides an undue decision-making authority on the
238 governing board who rules. I would prefer to see Orange County go in it's own direction and then if there's a problem
239 with that, it will surface. I can't see that someone would come and say they will take us to court because we didn't add
240 the phrase.
241
242 James Bryan: Either John or I are at the boards and we would advise against those arguments. The enabling statutes
243 say that someone has to have substantial material and competent evidence and case law indicates that once you have
244 that you have a right to the permit. That is the burden of proof. The different parts of it about the production of
245 documents and persuasive arguments are subparts to that.
246
247 Adam Beeman: I have applied for permits in this County since 2008, and I just don't see is as being a fair process to
248 someone who can't afford deep pockets to get out of it. If you just scratch persuasion off, I am happy. But you are
249 telling me I have to persuade you yet don't give me any concrete steps to hit. That is a problem for me. It seems
250 objectified. I read your paragraph that if I provide all of this stuff then I deserve it, so then scratch out persuasion
251 because I have accomplished all of that. Why do I have to persuade you? If I come in and present my evidence and
252 testimony, I have either persuaded you or not.
253
254 James Bryan: It is a problem with semantics, but I am telling you what the law says. The law says you are always
255 persuading the Board. The Board has discretion.
256
257 Adam Beeman: That is my problem. It seems like a backdoor to say no to any project regardless if I qualify or not.
258
259 James Bryan: It can't be that.
260
261 Adam Beeman: It sounds like it. I am a layperson not a legalese, and it doesn't make sense to me. When I read it, it
262 sounds like you are discouraging me from doing it. I am at the mercy of presenting my case instead of handing you the
263 facts.
264
265 James Bryan: The facts aren't the facts.
266
267 David Blankfard: I have an example of the facts aren't the facts. I was on the Board of Adjustment and we had an
268 applicant come in and say they wanted to have a kennel put in. They had their own realtor come in and say it's going to
269 maintain or enhance their property, but the neighbors had another expert say, no, it is not going to. We had to pick
270 between the two on who was most persuasive.
271
272 Randy Marshall: Persuasive or factual?
273
274 David Blankfard: They were both qualified but just had different opinions.
275
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276 Michael Harvey: They drew different conclusions from the facts.
277
278 Adam Beeman: And that is the problem with persuasion that I have. Mr. Harvey mentioned earlier that any time you go
279 for these permits,you would be advised to have a lawyer. You are setting me up right out of the gate to have to spend
280 money.
281
282 Craig Benedict: I don't know if this is an operable solution. One suggestion was to put a definition and James said
283 probably not. Sometimes in state construction of statutes there are some unknowns and what is done later is they ask
284 for an attorney general opinion on what that really means. Could the attorney's office put an attorney's opinion of how
285 we operate that burden of persuasion in an argument and explain? If we could get some sort of attorney opinion
286 outside of it that says this is what we mean by the argument. This is a typical argument that should go with the proof to
287 have the whole package;the production,the argument, and the overarching burden of proof.
288
289 Randy Marshall: This hasn't been in there before. How we have suffered by not having this clause in our UDO?
290
291 James Bryan:There's always the potential of litigation for ambiguity or not following local ordinance.
292
293 Randy Marshall: But we have not had any challenge up to this point that would seem to suggest that we to have this in
294 there.
295
296 James Bryan:To my knowledge,we have not.
297
298 Randy Marshall: How do you define reasonable?
299
300 James Bryan: Up until that last clause, I think that's spot on. Going back to David's example regarding the kennel.
301 David and his co-members on the Board had to vote, and one of them could have said I think it's going to decrease the
302 value while four of them could have has said it would increase the value. If they give the applicant the permit and it gets
303 appealed to Superior Court,the court will review the decision and ask if they had competent material and substantial
304 evidence. If the applicant did,then the court would find in their favor. It is a discretionary decision that the Board is
305 allowed to make.
306
307 Randy Marshall:. If we allow the clause to stay,what prevents us from adding another clause that says whoever is not
308 persuaded has to provide us with the reasons they are not persuaded?
309
310 Michael Harvey: That already does happen.
311
312 Randy Marshall:You have to put it in there so whoever reads it has it concretely in front of them and it's not implied that
313 they have it. If someone says they are not persuaded, after the burden of proof has been met, I think they should have
314 an obligation to the applicant to delineate the reasons why they are not persuaded which provides recourse to contest
315 the decision preventing them from getting what they are seeking.
316
317 Kim Piracci: Is this is one issue we have tonight?
318
319 Lydia Wegman:Yes.
320
321 Kim Piracci: I'm a gemologist; and at some point, it's not up to me to give a gemology lessons to my clients if that
322 person has hired me for my expertise. There's a hang up on the word persuasion, and he has said several times that it
323 is not the legal standard. The legal standard is this other thing. These three professionals are kind of in agreement that
324 these wordings should be in here and said it's an improvement over what we had. Michael has said it's already if you
325 are not persuaded you have to say why and yet it seems to keep going back and forth. At some level,we have to trust
326 our paid professionals and that's what I would like to do at this time. I don't see an end to this discussion. Even though
327 I get your point, I trust him because he's a legal expert.
328
329 Adam Beeman: I don't think we should be making it more difficult for normal people to understand and go through the
330 process. You are making it to the point where I have to hire a lawyer to do this so they can interpret the law for me.
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331
332 Kim Piracci: Is it not already that way?
333
334 Hunter Spitzer: From precedent it seems like this is already the expectation. It was an implied expectation that the
335 applicant would have the burden of persuasion and now we are putting it into concrete text. If you are going for a
336 Special Use Permit or a Variance you will probably need a lawyer anyway, so I believe the process is the same, and I
337 don't think this makes it any more difficult if you already have a lawyer.
338
339 Adam Beeman: No, but it can discourage someone from doing it in the first place. We can vote, but we will obviously
340 we will not get anywhere with me.
341
342 Lydia Wegman:Where you say the applicant shall have the burden of persuasion on those issues. What issues are
343 you referring to? If I'm understanding correctly James, you're trying to say the first sentence is about the burden of
344 production and the second sentence is about the burden of persuasion?
345
346 James Bryan: I don't have it in front of me.
347
348 Lydia Wegman:When you were drawing the distinction,you were saying the burden of proof consists of the burden of
349 production and the burden of persuasion.
350
351 James Bryan: I believe the first sentence was what's currently in our UDO and what I believe is the definition of burden
352 of production.
353
354 Lydia Wegman:We have this new burden of persuasion language which was not there before with reference to issues,
355 but the first sentence doesn't actually reference specific issues.
356
357 James Bryan: It should reference the standards for whatever section is applicable.
358
359 Lydia Wegman: It's confusing for an applicant to know the issues. If we are going to keep the burden of persuasion
360 language, I think it needs to be clarified.
361
362 James Bryan: It might have been a copy and paste from Durham where it should have been specified.
363
364 David Blankfard: Since burden of persuasion is a legal term that is not quite obvious to Iaypeople, is there a way that we
365 can italicize it so people can Google"burden of persuasion"as opposed to Googling each word, because it means a
366 whole host of legal implications.
367
368 James Bryan: I always recommend that ordinances be unaltered and just plain, simple rules. At 600 pages it will never
369 be user friendly. What you do then is create forms and pamphlets to educate the public. I think forms like the
370 application, a fill in the blank type of thing, along with pamphlets.
371
372 Kim Piracci: Does Michael have to go back and correct or improve that imperfection that you brought up?
373
374 Michael Harvey:You don't want to know what Michael is thinking right now.
375
376 Kim Piracci: Can we call this to vote or do we have to come back for it because there's an imperfection?
377
378 James Bryan: I would always advise against coming up with language on the spur of the moment, but if you were to say
379 relevant issues I think that clarifies it. It's one word and describes the issues.
380
381 Michael Harvey: I'm not signing off on that. I am not comfortable with that suggestion at this time.
382
383 Kim Piracci: So,we can't vote on this tonight, anyway?
384
385 Lydia Wegman:We can vote on the language as it sits before us.
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DRAFT
386
387 Michael Harvey: This was drafted after a 45-minute discussion between Mr. Bryan and myself to address concerns of
388 legal sufficiency.
389
390 Craig Benedict: I like the brochure idea or something that explains how we implement this. If we cannot put it as a
391 definition with an elaboration of it,which isn't being suggested, then the language as it is would be useable with a
392 brochure. This would explain what we are trying to achieve.
393
394 Michael Harvey: Are you going to come up with a brochure?
395
396 Lydia Wegman:The brochure also isn't the standard of court with review. It could be helpful to applicants, but it won't
397 address the question if it were challenged. The brochure wouldn't be admissible.
398
399 Craig Benedict: The brochure would be a help to the customer.
400
401 Lydia Wegman: It's a good idea but doesn't address our comfort with UDO language.
402
403 Craig Benedict: I agree.
404
405 Randy Marshall: Before we vote, I am going to say anything with the burden of persuasion language I'm voting against.
406 I'm not persuaded that we have to have it because Durham had it. We've never had it in here and it's never been a
407 problem.
408
409 Paul Guthrie: Has any court of competent jurisdiction defined what we're now saying seems to be a problem?
410
411 James Bryan: I haven't looked. It's pretty well settled law because the statute is explicit about competent material and
412 substantial evidence. What is substantial has been litigated extensively but questioning the very foundation has not.
413 Franklin vs. Byrd is how this came up. There is always a chance that the foundation gets torn up, but this is how it's
414 been going for a long time.
415
416 Paul Guthrie: What worries me is the turmoil that might occur over trying to justify and accept these definitions. You
417 may find that the rulings will take on and destroy further protections than we have and not just those under the court's
418 view at that time. It seems like an issue that is one of those that can't be solved simply and depending on the case that
419 comes forward that case may be awarded for the wrong part of information but set the precedent for all the rest. Is
420 there any way to avoid that and still maintain the standard that Michael is trying to justify?
421
422 James Bryan: I don't think that there's any way to fully avoid it. The law is an evolving thing. You can be conservative
423 in your approach by seeing what the common approach is and what is most legally defensible.
424
425 Lydia Wegman: If we take a vote, can we vote on whether we approve or disapprove this language? I think several of
426 us are uncomfortable with the second sentence, but not the first. If we were to vote on that, can this go forward to the
427 Board of County Commissioners?
428
429 Craig Benedict: You can vote with both sentences or one; it's your recommendation. The Commissioners will see your
430 recommendation and vote for or against it.
431
432 Lydia Wegman: I'm trying to say I think we can take a vote and move on beyond us to the Board of County
433 Commissioners.
434
435 Michael Harvey: I think the Board just needs to take action as it sees fit.
436
437 MOTION by Hunter Spitzer to approve the Statement of Consistency as contained in Attachment 2 and to approve
438 revised UDO text amendment package in contained in Attachment 3 and refer the Board of County Commissioners to
439 our concerns with the language under the sections discussed this evening and on March 6, 2019 but to approve the
440 document as it stands. Seconded by Kim Piracci
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DRAFT
441
442 Lydia Wegman: So, basically you are voting to approve it but just advise them that we had some concerns.
443
444 Hunter Spritzer: Yeah.
445
446 Carrie Fletcher: I would like to know what your feeling are, I would like to know.
447
448 Michael Harvey: I quite frankly feel that there are some statements that have been made here tonight that are
449 inconsistent with facts and how this language was added. That's very unfortunate. I think that there is and has always
450 been a burden of persuasion for an applicant engaging in a Variance, Interpretation or Special Use Permit. That is just
451 simple fact. An applicant has the obligation to persuade whatever Board he or she is going before that they are correct
452 and that the information they are providing demonstrates the project complies with applicable standards. How they
453 persuade that Board they are correct is with the submission of competent material and substantial evidence in the form
454 of testimony, exhibits, documents, models, plans and other materials that the applicant is intending to use to persuade
455 whatever board the request meets the requirements for whatever,Variance Interpretation or Special Use Permit. I think
456 that James's concern about establishing references to this existing burden,while some may believe is implicit in the
457 ordinance, that the specific language needs to be added was reasonable which was why I added it. The fact that you
458 all don't agree, that's your prerogative but some of the comments made about how this language got in here and what
459 my purported motives are is a little unfortunate and somewhat insulting.
460
461 James Bryan: Wait,from me?
462
463 Michael Harvey: From the group.
464
465 James Bryan: Oh,you can clarify if I was wrong, if I misspoke.
466
467 Michael Harvey: This language was put in there to address a concern over legal sufficiency and after 45 minutes of you
468 and I coming to an understanding of what those concerns are, I thought what was crafted was reasonable. I don't
469 necessarily believe this was added....it wasn't something that I thought was 100% necessary to add to begin with which
470 is why you and I had 45 minute of discussion on it. I understood you concern and attempted to address it because part
471 of my role with this project is to address concerns over legal sufficiency.
472
473 James Bryan: Ok
474
475 Carrie Fletcher: From what I am seeing, as everyday citizens, I think I feel that we have an obligation to try to protect
476 the everyday citizenry and if that came across then I am not going to apologize but I understand that you see it from a
477 different side than we do and if that's confrontational, I apologize and I don't mean to come across.....
478
479 Michael Harvey: I guess what I'm getting offended at is that the perception that I am not interested in protecting the
480 common citizenry or that I am simply adding this language as some form of barrier for common citizens hindering their
481 ability to get approvals of variances, interpretations,or special use permits. Further that somehow I concocted all of this
482 all on my own which is inconsistent with the facts. That is incredibly insulting.
483
484 Carrie Fletcher: Maybe we all get a little over defensive about it. I don't mean to be offensive but I think in this
485 environment of government everyone gets a little edgy about making sure we're protected in a way then verbiage is
486 correct.
487
488 Lydia Wegman: So, I'm just going to jump in here and say I think that, I hope we all respect one another and that I feel
489 and I think this is true of the Board that we all very much respect Michael,James and Craig and the work that you do
490 and that we recognize that you are trying to serve all the citizens of Orange County in a fair way recognizing that some
491 of these things are complicated and difficult for individuals to make sense of and you are trying to be as clear as
492 possible so that everyone looks at this code and understands what is required. No one is suggesting, I don't believe
493 anyone is in this room is suggesting that there was anything other than that motivating this effort. The fact that some of
494 us may be confused or concerned about this language is the way we are reading it but that has nothing to do with what
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DRAFT
495 you were trying to do in writing it. I certainly,we all understand that you are trying to help citizens of Orange County
496 move forward with their applications in these SUPs and Variances.
497
498 Michael Harvey: Regardless of the vote that is about to occur, and I am going to make the same comment in any other
499 motions that are made this evening, I like to offer a friendly amendment to the motion to approve.
500
501 Lydia Wegman: Please do.
502
503 Michael Harvey: In our haste to get this done,there are a couple of section references that I neglected to update, and
504 I've just discovered. So,with your indulgence,what I would like to point out is that the amendment,the approval would
505 need to include updating section reference in what is Section 2.10.2 Applicant Requirements Subsection B number 4;
506 the narrative outlining the answers to the five required findings detailed within it reads currently Section 2.10.3 that is
507 now actually become Section 2.10.4 with the re-numbering.
508
509 Next, Section 2.10.5 Additional Criteria for Authorized Variances Special Flood Hazard Areas in addition to the criteria
510 contained within it says Section 2.10.3 that is the same reference that needs to be updated to Section 2.10.4 that is the
511 provision dealing with authorized variances.
512
513 Section 2.10.6 Modifications of the Impervious Surface Ratios in Subsection E reads that such requests may be
514 requested through one of the following provisions; through variance procedures of the Board of Adjustment as
515 described in this subsection. The subsection used to be 2.10.5 it is now re-numbered to 2.10.6.
516
517 Last, required Findings of Fact that is listed in Section 2.10.3 that is now become Section 2.10.4.
518
519 So regardless of whatever motion,whatever happens with this vote, I'd like there to be an acknowledgement and any
520 subsequent motions of those corrections as identified by staff.
521
522 Lydia Wegman: Ok, thank you
523
524 Craig Benedict: That can be incorporated by the person who made the motion and the person who seconded is in
525 agreement that can be amended.
526
527 Hunter Spitzer: I would like to amend my motion to include what Michael said.
528
529 Kim Piracci: I second that amendment.
530
531 VOTE: 4-5
532 Motion Failed
533
534 MOTION by Adam Beeman to strike burden of persuasion out of the LIDO and to include the amendment made by
535 Michael Harvey relating to updating section references. Seconded by Randy Marshall.
536
537 Michael Harvey: So,your motion would be to eliminate within Section 2.10.3 the sentence"further the applicant shall
538 have the burden of persuasion on those issues"to eliminate from Section 2.11.3 Burden of Proof to eliminate"further
539 the applicant shall have the burden of persuasion on those issues"and last in Section 5.3.2 Special Use Permits
540 "further the applicant shall have the burden of persuasion on those issues".
541
542 Adam Beeman: And to include changes as identified by staff updating references in Sections 2.10.2., 2.10.5, and
543 2.10.6 as recommended by staff.
544
545 VOTE: 7-1
546 Motion Passed with Hunter Spitzer abstaining from the vote.
547
548 Staff note: Abstaining from a vote is not an option the County's advisory board policy allows but where a member has a
549 conflict of interest the member may be excused by majority vote of the advisory board.
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DRAFT
550
551 Kim Piracci: Did I understand you to say you didn't want to put it in either?
552
553 Michael Harvey: No ma'am.
554
555 Lydia Wegman: He was persuaded by his conversation with James is what I understood and it was something that
556 made sense to him.
557
558 AGENDA ITEM 5: ADJOURNMENT
559 The meeting was adjourned by consensus
560
561
562 Lydia N. Wegman, Chair
79
STATEMENT OF APPROVAL AND CONSISTENCY
OF A PROPOSED UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT
WITH THE ADOPTED ORANGE COUNTY 2030 COMPREHENSIVE PLAN
Orange County has initiated an amendment to the Unified Development Ordinance
(UDO) consolidating three separate tables of permitted land uses into a central table.
The Planning Board hereby approves the proposed text amendment and finds:
a. The requirements of Section 2.8 of the UDO have been deemed complete; and,
b. Pursuant to Sections 1.1.5, and 1.1.7 of the UDO and to Section 153A-341 of the
North Carolina General Statutes, the Board finds sufficient documentation within
the record denoting that the amendment is consistent with the adopted 2030
Comprehensive Plan.
1. The amendment is consistent with applicable plans because it supports the
following 2030 Comprehensive Plan goals and objectives:
• Land Use Goal 4 - Land development regulations, guidelines,
techniques and/or incentives that promote the integrated
achievement of all.
These amendments are consistent with this goal and
objective by eliminating existing redundancy in the listing of
allowable/prohibited land uses.
Further, the amendment combines similar land uses into a
single use category, thereby ensuring consistent application
of development regulations, guidelines, and techniques.
• Land Use Goal 6 —A land use planning process that is transparent,
fair, open, efficient, and responsive.
These amendments are consistent with this goal and
objective by creating a centralized list of permitted and
prohibited land uses, thereby ensuring transparency in the
development review process and allowing staff to be more
responsive to development inquiries.
c. The amendment is reasonable and in the public interest because it:
1. Ensures legal sufficiency by establishing a centralized table of permitted
uses outlining what is permitted and prohibited within the County.
The amendments bring the current UDO into consistency with the
delineation of permitted and prohibited land uses as outlined within
the State Supreme Court in Byrd versus Franklin.
I
2. Ensures legal sufficiency by eliminating conflicting terminology and
references to permitted and prohibited land uses.
These amendments ensure uniformity by eliminating three separate j
tables of permitted land uses, each describing/listing uses in
different terms/formats, in favor of the creation of a centralized
table.
i
80
The Planning Board hereby adopts this Statement of Approval and Consistency as well
as the findings expressed herein.
Lydia Wegman, Chair Date
i
r
a
I
i
1
I
81
Attachment 6
STATEMENT OF APPROVAL AND CONSISTENCY
OF A PROPOSED UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT
WITH THE ADOPTED ORANGE COUNTY 2030 COMPREHENSIVE PLAN
Orange County has initiated an amendment to the Unified Development Ordinance
(UDO) consolidating three separate tables of permitted land uses into a central table.
The BOCC hereby approves the proposed text amendment and finds:
a. The requirements of Section 2.8 of the UDO have been deemed complete; and,
b. Pursuant to Sections 1.1.5, and 1.1.7 of the UDO and to Section 153A-341 of the
North Carolina General Statutes, the Board finds sufficient documentation within
the record denoting that the amendment is consistent with the adopted 2030
Comprehensive Plan.
1. The amendment is consistent with applicable plans because it supports the
following 2030 Comprehensive Plan goals and objectives:
• Land Use Goal 4 - Land development regulations, guidelines,
techniques and/or incentives that promote the integrated
achievement of all.
These amendments are consistent with this goal and
objective by eliminating existing redundancy in the listing of
allowable/prohibited land uses.
Further, the amendment combines similar land uses into a
single use category, thereby ensuring consistent application
of development regulations, guidelines, and techniques.
• Land Use Goal 6 — A land use planning process that is transparent,
fair, open, efficient, and responsive.
These amendments are consistent with this goal and
objective by creating a centralized list of permitted and
prohibited land uses, thereby ensuring transparency in the
development review process and allowing staff to be more
responsive to development inquiries.
c. The amendment is reasonable and in the public interest because it:
1. Ensures legal sufficiency by establishing a centralized table of permitted
uses outlining what is permitted and prohibited within the County.
The amendments bring the current UDO into consistency with the
delineation of permitted and prohibited land uses as outlined within
the State Supreme Court in Byrd versus Franklin.
2. Ensures legal sufficiency by eliminating conflicting terminology and
references to permitted and prohibited land uses.
These amendments ensure uniformity by eliminating three separate
tables of permitted land uses, each describing/listing uses in
different terms/formats, in favor of the creation of a centralized
table.
82
The BOCC hereby adopts this Statement of Approval and Consistency as well as the
findings expressed herein.
Penny Rich, Chair Date
83
ATTACHMENT 7
Attachment Ta
Ordinance # ORD-2019-015
AN ORDINANCE AMENDING THE
UNIFIED DEVELOPMENT ORDINANCE OF ORANGE COUNTY
Whereas, Orange County establishes three separate tables outlining allowable land uses
within Section(s) 5.2.1, 5.2.2, and 5.2.3 of the Unified Development Ordinance (UDO). Further,
Article 5 Uses of the UDO establishes development standards and review criteria for various
permitted land uses within the County and
Whereas, Since adoption of the UDO in 2011, there has been a desire to collapse and
condense the existing tables of permitted land uses into a single table, as well as clarify
development standards for various land uses, to avoid unnecessary duplication and conflict,
and
Whereas, On November 6, 2015 the State Supreme Court in Byrd Versus Franklin placed
the onus on local governments to `spell out' what land uses were allowable or prohibited within
their respective jurisdictions, and
Whereas, Planning staff and the County Attorney have determined the UDO does not
adequately delineate which land uses are permitted and/or prohibited within specified zoning
districts consistent with the finding of Byrd versus Franklin, and
Whereas, There is a need to revise how Orange County lists permitted and prohibited land
uses in order to comply with the findings of Byrd as well as to streamline existing regulatory
processes to ensure regulations are readily understandable, and
Whereas, the requirements of Section 2.8 of the UDO have been deemed complete, and
Whereas, the Orange County Planning Board has recommended approval of the proposed
text amendments, and
Whereas, the County has held the required public hearing and has found the proposed
text amendments are consistent with the goals and policies of the adopted Comprehensive
Plan.
Be it ordained by the Board of Commissioners of Orange County that the Unified
Development Ordinance of Orange County is hereby amended consistent with the Planning
Director's and County Attorney's recommendation.
Be it further ordained that this ordinance be placed in the book of published ordinances
and that this ordinance is effective upon its adoption.
Upon motion of Commissioner seconded by Commissioner
, the foregoing ordinance was adopted this day of
, 2019.
84
I, Donna S. Baker, Clerk to the Board of Commissioners for Orange County, DO HEREBY
CERTIFY that the foregoing is a true copy of so much of the proceedings of said Board at a
meeting held on , 2019 as relates in any way to the adoption of the
foregoing and that said proceedings are recorded in the minutes of the said Board.
WITNESS my hand and the seal of said County, this day of , 2019.
SEAL
Clerk to the Board of Commissioners
85
Attachment 7-b
UDO AMENDMENT PACKET NOTES:
The following packet details staff s proposed modifications to existing regulations collapsing the
three existing tables of permitted land uses, specifically Section(s) 5.2.1 (general use zoning
districts), 5.2.2 (EDD general use zoning districts), and 5.2.3 (Conditional Zoning districts) into
a centralized table in an order to clarify permitted and prohibited land uses consistent with recent
court decisions.
• Red Underlined Text: Denotes new, proposed text that staff is suggesting be
added to the UDO.
• Red Str;ket roug Tex : Denotes existing text that staff is proposing to delete.
• Red Underlined Yellow Highlighted Text: Denotes text the Planning Board has
recommended not be approved but Planning staff and the County Attorney are
recommending for approval. This impacts Section(s) 2.10.3, 2.11.3, and 5.3.2 of
the proposed UDO amendment package.
Only those pages of the UDO impacted by the proposed modification(s) have been included
within this packet. Some text on the following pages has a large "X" through it to denote that
these sections are not part of the amendments under consideration. The text is shown only
because in the full UDO it is on the same page as text proposed for amendment or footnotes from
previous sections `spill over' onto the included page. Text with a large "X" is not proposed for
deletion.
Please note that the page numbers in this amendment packet may or may not necessarily
correspond to the page numbers in the adopted UDO because adding text may shift all of
the text/sections downward.
Users are reminded that these excerpts are part of a much larger document (the UDO) that
regulates land use and development in Orange County. The full UDO is available online at:
http://www.orangecountync.gov/departments/planning and inspections/ordinances.php