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HomeMy WebLinkAboutAgenda - 02-20-2001-9ev ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: February 20, 2001 Action Agenda Item No. SUBJECT: Request for Assessment of Civil Penalties -- M. Henry Wilson Zoning Violation DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y /N) No ATTACHMENT(S): Location and Property. Map (3) Chronology of Events (4) Previous Notices of Zoning Violation (5 -6) Notice of Site Inspection Request (7) Notice of Assessment of Civil Penalties (8 -9) Article 23 of the Zoning Ordinance (10 -11) Request for Assessment of Civil Penalties (12- 13) INFORMATION CONTACT: Tom King, Planner II, ext. 2607 TELEPHONE NUMBERS: Hillsborough 732 -8181 Chapel Hill 968 -4501 Durham 688 -7331 Mebane 336 - 227 -2031 PURPOSE: To consider the approval of the assessment of civil penalties for a continuing zoning violation. BACKGROUND: The prompt for this action is a recent, ongoing, complaint regarding an illegal automobile maintenance and repair garage, as well as discussions with the County Attorney's Office. The specific events that have led to the neccesity to assess civil penalties in relation to this matter are noted in the attached Chronology of Events (Attachment 2). The property in question is a six (6) acre lot owned by Marion Henry Wilson, Jr. and Nancy Wilson, and is located at 1220 and 1302 Ferguson Road (SR 1948) in Bingham Township (Attachment 1). The front portion of the property is zoned RB (Rural Buffer) /UNIV -PW (University Lake Protected Watershed), and the rear portion is zoned AR (Agricultural Residential) /HAW -PW (Haw River Protected Watershed). The portion of the site containing the violation (Wilson and Staples Automotive) is zoned RB /UNIV- PW. In the early 1990's, the site was the operation of a junkyard /automobile salvage business owned and operated by Donald Wayne Combs, who claimed that the use existed when the Township was zoned in 1981. In 1992, Mr. Combs applied for a 2 rezoning of the portion of the property on which the business was located to EC -5 (Existing Commercial). The property was rezoned and immediately contested in court by a neighboring property owner. In 1995 , the County was ordered to rezone the property back to the previous zoning district (RB). During the time the property was zoned EC -5, Mr. Wilson purchsed the property and established the use of the property as a motor vehicle repair garage. The attached Chronology of Events (Attachment 2) gives, in reasonable detail, the events that occurred from 1996 forward. Mr. Wilson has been notified twice previously of the zoning violation existing on his property (Attachment 3). Mr. Wilson is currently in violation of Section 4.3 (Permitted Use Table) and Section 6.23.1 (Land Use Restrictions) of the _Orange County. N.C. Zoning Ordinance. Specifically, Section 4.3 does not allow for the operation of a motor vehicle and repair garage in the RB Zoning District. A Motor Vehicle Repair Garage is defined as: "[A]n establishment where the following services are available: major mechanical repairs, including engine overhaul; and transmission work. Repair garages can also offer services similar to service stations." Section 6.23.1 of the Zoning Ordinance lists specific uses which are not allowed in certain watershed areas. Under this Section, "no commercial or industrial uses" are permitted in the UNIV -PW. FINANCIAL IMPACT: The financial impact of this decision can not be determined at this time, as it will include court and attorney costs associated with criminal prosecution. RECOMMENDATION(S): The Administration recommends that the person in violation be assessed civil penalties at $100.00 per day if the violation does not cease and desist within 30 days of February 20,.:2001. If the violation has ceased (i.e. buildings associated with business vacated, vehicles removed from site, signs removed) by March 22, 2001, the assessment of civil penalties will be waived. If the violation continues, civil penalties will be assessed at $100.00 per day beginning January 6, 2001, and continuing until the violation ceases (exceeding $7,600.00), as authorized under Article 23, Section 23.2(b) of the Zoning Ordinance (Attachment 6). 11. The Resolution for Assessment of Civil Penalties is attached (Attachment 7). ATTACHMENT 2 4 CHRONOLOGY OF EVENTS RELATED TO THE M. HENRY WILSON ZONING VIOLATION (CASE #544) • May 2, 1996 — M. Henry Wilson is issued a Home Occupation Permit for an automobile repair and maintenance business on property zoned RB (Rural Buffer). • May 31, 1996 — A neighboring property owner appeals the issuance of the Home Occupation Permit to the Board of Adjustment. The request is to reverse the issuance of the Permit. • August 12, 1996 — Appeal is heard by the Board of Adjustment. • October 14, 1996 — The issuance of the Home Occupation Permit to Mr. Wilson is found to have been issued in error. Permit is revoked. Wilson is ordered to cease and desist operations within 30 days. • November 1996 — Mr. Wilson appeals Board's decision to revoke Home Occupation Permit to Superior Court. • January 1998 — The Court returns Board's order for lack of specific findings of fact in support of the decision to revoke the Home Occupation Permit. • July 11, 1998 - Board of Adjustment considers an order prepared to rectify the matter concerning required findings of fact for revocation of Home Occupation Permit. • August 10, 1998 — The Order is approved by the Board declaring that the issuing of the Home Occupation Permit by Planning Staff was erroneous. Wilson is given until September 9, 1998 to appeal the decision of the Board to Superior Court. No appeal is filed. • October 1998 — Complainant files complaint that Wilson's business is still in operation'. • November 24, 1998 — Jim Hinkley, AICP, former Planner II /Zoning Enforcement Officer, sends Notification of Zoning Violation to Wilson, directing him to cease and desist conducting all business operations on or before the expiration of ninety (90) days (February 22, 1999). • January 7, 1999 — Wilson's attorney sends Mr. Hinkley a letter stating that the use of the property should be allowed to continue under the provisions set forth in the Zoning Ordinance for Non - Conformities (Article 11). • August 2, 1999 — A complaint is received from an adjoining property owner regarding Mr. Wilson's business. • August 4, 1999 — Site inspection performed by Jim Hinkley. Business still in operation. • August 19, 1999 — Jim Hinkley sends Mr. Wilson a Second Notification of Zoning Violation. • August 29, 2000 — Complaint filed that business is still in operation. • December 5, 2000 — Complainant calls to check progress of case. • December 14, 2000 — Tom King, Planner ll /Zoning Enforcement Officer, sends certified letter (Attachment 4) to. Wilson requesting a site inspection of the premises. Mr. Wilson is made aware that this visit is in relation to the ongoing violation. • January 5, 2001 - Mr. King performs site inspection. Harmony Whalen of the County Attorney's Office accompanies. Business still in operation. • January 22, 2001 — Zoning Enforcement Officer advised to assess civil penalties, as well as pursue matter through the courts. • February 7, 2001 — Zoning Enforcement Officer notifies Wilson of pending request for civil penalties and court action (Attachment 5). ATTACHMENT 3 5 ORANGE COUNTY PLANNING DEPARTMENT 306F REVERE ROAD HILLSBOROUGH, NORTH CAROLINA 27278 r Y b November 24, 1998 Marion Henry Wilson, Jr. Nancy Wilson 2615 Jefferson Choice Chapel Hill, NC 27516 In the matter of: NOTIFICATION OFZONING VIOLATION Dear Mr. and Mrs. Wilson: This office inspected your property at 1220 Ferguson Road in Bingham Township (Tax Map No.6.37B..6A) on Wednesday, November 18, 1998, and found it to be in violation of Section 4.3 Rermijlgd Use Table, B24 Motor Vehicle Maintenance and Rep, . The premises is being used. to operate an automotive maintenance and repair business. Your properly is zoned RB(UNIV -PW) Rural Buffer (University Lake Protected Watershed) on the east and AR(HAW PW) Agricultural- Residential (Haw River Protected Watershed) on the west. Commercial motor vehicle maintenance and repair are not permitted uses in the RB or AR zoning district. You are directed to cease and desist conducting all business operations on and from the premises on or before the expiration of ninety (90) days from the date of this notification [February 22, 19991. Thank you for your attention to this matter. Please call this office at 732 -8181, X2584 if you have questions. Sincerely, James R. Hinkley, AICP Zoning Enforcement Officer C:. Robert H. Smith, Attorney Geoffrey M. Gledhill, County Attorney Leigh Ann Peek, Assistant County Attorney Gene Bell, Planning Director Karen Lincoln, Current Planning Supervisor 0 ORANGE COUNTY PLANNING DEPARTMENT 306F REVERE ROAD HILLSBOROUGH, NORTH CAROLINA 27278 R A August 19, 1999 "' c••' Marion Henry Wilson, Jr. Nancy Wilson 2615 Jefferson Choice Chapel Hill, NC 27516 In the matter of: SECOND NOTIFICATION OF ZONING VIOLATION Dear Mr. and Mrs. Wilson: Your property at 1220 Ferguson Road in Bingham Township (Tax Map No. 6.37B..6A) was inspected by this office on Wednesday, August 11, 1999, and found to continue in violation of Section 4.3 i ttgd Use-Table, b924 Mg1or Vehicle MairLtenance Eje air. The premises is being used illegally to operate an automotive maintenance and repair business. Your property is zoned RB(UNIV -P" Rural Buffer (University Lake Protected Watershed) on the east and AR(HAW -PW) Agricultural - Residential (Haw River Protected Watershed) on the west. Commercial motor vehicle maintenance and repair are not permitted uses in the RB and AR zoning districts. You were ordered to cease and desist conducting all business operations on and from the premises on or before February 22, 1999. You did not close your business by that date at the location. Therefore, you are hereby given 31 days from the date of this letter to do so. If you do not cease and desist all operations on and from the premises on or before September 20, 1999, this office will take action against you in the. courts. Please call this office at 732 -8181, X2584 if you have questions. Sincerely, James R. Hinkley, AICP Zoning Enforcement Officer C: Robert H. Smith, Attorney Geoffrey M. Gledhill, County Attorney Craig Benedict, AICP, Planning Director Karen Lincoln, AICP,.Current Planning Supervisor g: \jim\zcase \wilsnmh2 .544 \letter \9.20.99 \jrh ATTACHMENT 4 ORANGE COUNTY PLANNING & INSPECTIONS DEPARTMENT Craig N. Benedict, AICP, Director Current Planning + M 306F Revere Road (919) 245 -2575 1T " 5.1 P O Box 8181 (919) 644 -3002 (FAX) Hillsborough, www.co.orange.nc.us North Carolina, 27278 7 December 14, 2000 Marion Henry Wilson, Jr. 2615 Jefferson Choice Chapel Hill, NC 27516 -9748 Dear Mr. Wilson: Certified Mail I am contacting you in order to request your permission to allow me to visit your property located at 1302 and 1220 Ferguson Road /SR 1948 (Orange County Tax Map #6.37B..6A) located in Bingham Township. I am aware that the property is currently the site of Wilson and Staples, Inc., a automobile repair and service garage. The property is currently zoned RB (Rural Buffer) and AR (Agricultural Residential), as well as being located in the UNIV -PW (University Lake Protected Watershed) and HAW -PW (Haw River Protected Watershed) Zoning Overlay Districts. The purpose of this visit is to verify exactly what type of work is performed at the site. As you are aware, the property has been and is currently the subject of a Zoning Violation (Case #544). Please call me at (919) 245 -2607 as soon as possible after receipt of this letter so that we may schedule an appointment where you and I can meet at the site. If you are not in agreement with a site visit, please let me know. Thank you. Sincerely, �z /S - Tom King Planner II /Zoning Enforcement Officer cc: Robert P. Davis, AICP, Planner III /Current Planning Supervisor Harmony Whalen, Orange County Attorney's Office Zoning Violation File (Wilson, M. Henry.544) GATkinq \MHWHson.5" ATTACHMENT 5 E ORANGE COUNTY PLANNING & INSPECTIONS DEPARTMENT Craig N. Benedict, AICP, Director Ce„n► of or Current Planning b�` ;«.-; ''.. 306F Revere Road (919) 245 -2575 P O Box 8181 (919) 644 -3002 (FAX) °' y Hillsborough, www.co.orange.nc.us "•� cite North Carolina, 27278 February 7, 2001 Marion Henry Wilson, Jr. & Nancy Wilson 2615 Jefferson Choice Chapel Hill, NC 27516 CERTIFIED MAIL RETURN RECEIPT REQUESTED NOTICE OF PENDING CRIMINAL WARRANT AND REQUEST FOR ASSESSMENT OF CIVIL PENALTIES FOR CONTINUING ZONING VIOLATION Dear Mr. and Mrs. Wilson: You were notified by Mr. Jim Hinkley, former Planner II /Zoning Enforcement Officer, on November 24, 1998, and again on August 19, 1999, regarding the motor vehicle repair garage (Wilson and Staples Automotive) that has been, and is currently being,, operated on your property located at 1220 Ferguson Road (Orange County Tax Map #6.37B..6A) in violation of Section 4.3 (Permitted Use Table) of the Orange Count N.C. Zonin Ordinance. A site inspection made by myself and a representative of the County Attorney's office on Friday, January 5, 2001, revealed that the violation is still ongoing. The Zoning Ordinance defines Motor Vehicle Repair Garage as: (AJn establishment where the following services are - available: major mechanical repairs, including engine overhaul, and transmission. work. Repair garages can also offer services similar to service stations. The property is currently zoned RB (Rural Buffer) and AR (Agricultural Residential). The portion of the property that is located in the RB Zoning District is also located in the UNIV-PW (University Lake Protected Watershed) Overlay District, and the western portion of the property (zoned AR) is located in the HAW -PW (Haw River Protected Watershed). The commercial use is located entirely within the RB(UNIV -PW). 2 9 Section 4.3 (Permitted Uses) of the Zoning Ordinance does not allow for the establishment and operation of a motor vehicle repair garage within the RB Zoning District. The use is also not permitted within the EC -5 (Existing Commercial) Zoning District as was once applied to a portion of this property, and found to be an invalid zoning classification of the property. Also, Section 6.23.1 (Land Use Restrictions) of the Zoning Ordinance states that commercial uses are not allowed in the UNIV -PW. On May 2, 1996, you were issued a Home Occupation Permit to operate your business on the property in question. An appeal of the issuance of the Home Occupation Permit was heard by the Orange County Board of Adjustment on August 12, 1996, and the issuance of the Permit was held to be in error. On October 14, 1996 you were ordered to cease the operation of the business within thirty (30) days. This decision was appealed to Orange County Superior Court, and returned to the Board of Adjustment to make findings of fact. On August 10, 1998, the Board once again heard the case and determined that the Permit had been issued in error. You were ordered by Mr. Hinkley to cease and desist conducting all business operations on and from the premises on or before February 22, 1999. You did not close your business by that date at the location. You were then ordered to cease and desist all operations on and from the premises on or before September 20, 1999. You were advised by Mr. Hinkley that this matter would be referred to the courts for settlement. Due to the continuation of this violation and the ignoring of previous citations, I will be swearing out a criminal warrant for the violation this week. I will also be requesting the Board of County Commissioners to assess you civil penalties in the amount of $100.00 per day, beginning on January 6, 2001, and continuing until the violation has ceased, in the event that you do not comply with the criminal warrant. This action is being taken in the event you do not cease operations of the business. This action is being taken under Article 23 (Violations, Remedies and Penalties) of the Orange County, N.C. Zoning Ordinance. A copy of this Article is attached. Please call me at (919) 245 -2607 if you have questions. Sinc ely, /L' Tom King Planner II /Zoning Enforcement Officer Attachment (1) cc: Craig N. Benedict, AICP, Planning Director Robert P. Davis, AICP, Planner III /Current Planning Supervisor Harmony Whalen, Orange County Attorney's Office Robert H. Smith, Attorney & Counselor at Law Zoning Violation File (M. Henry Wilson.544) ATTACHMENT 6 10 ARTICLE 23. VIOLATIONS, PENALTIES AND REMEDIES 23.1 Violations Whenever, by the provisions of this ordinance, the performance of any act is prohibited, or whenever any regulation, dimension or limitation is imposed on the use of any land, or on the erection or alterations or the use or change of use of a strucdae,.or the. uses. vAtWrLsuch ...stnwture,afaikme.to comply with such provisions of this ordinance shall constitute a separate violation and a separate offense. *23.2 Penalties *Amended 10/3/88 a) Criminal Action: 4/1/96 Any person, firm or corporation who violates the provisions of this Ordinance or fails to comply with any of its requirements shall, upon conviction, be guilty of a Class 3 misdemeanor and shall be fined not more than a maximum of five hundred dollars ($500.00), as provided in G.S. Section 14-4. b) Civil Penalty: Any act constituting a violation of any requirement of this ordinance shall subject the offender to a civil penalty of $100. No penalty shall be assessed until the person alleged to be in violation has been notified of the violation by registered or certified mail, delivery restricted to addresses only, return receipt requested, or other means reasonably calculated to provide actual notice to the offender. The notice shall describe the violation with reasonable particularity, specify a reasonable time period within which the violation must be corrected and warn that failure to correct the violation within the time period will result in the assessment of a civil penalty. In the event the violations is not corrected within the time period provided in the notice, the Orange County Board of Commissioners shall make written demand for payment upon the person responsible for the violation. and shall set forth in detail a description of the violation for which the penalty has been invoked. If payment is not received or equitable settlement reached within 30 days after demand for payment is made. the matter shall be referred to the county attorney for institution of a civil action in the name of the County in the appropriate division of the General Court of Justice for recovery of the penalty. Any sums recovered shall be deposited in the County's general fund. 23 -1 11 c) Injunction and Abatement: If a building or structure is erected, constructed, reconstructed, altered, repaired, converted, moved or maintained, or any building, structure of land is used in violation of this ordinance, the Zoning Officer, in addition to other remedies, may institute any appropriate action or proceeding&tcr Pwv=t the�mlawful:ercction, cons t=iau, reconstruction, alteration, repair, conversion, moving, maintenance or use, to restrain, correct or abate the violation, to prevent occupancy of the building, structure or land, or to prevent any illegal act, conduct business or use in or about the premises. Amended d) Stop Work Orders: 10/17-89 If a building or structure is erected, constructed, reconstructed, altered, repaired, converted, moved or maintained, or any building, structure or land is used in violation of a Stop Work Order, the Zoning Officer, in addition to other remedies, may institute any appropriate action or proceedings to prevent the unlawful erection, construction, reconstruction,. alteration, repair, conversion, moving, maintenance or use, to restrain, correct or abate the violation, to prevent occupancy of the building, structure or lands, or to _prevent any illegal act, conduct, business or use in or about the premises. Notice of a Stop Work Order shall be in writing, directed to the person(s) conducting the violating activity and/or the property owner, and shall state the reasons for the issuance of the order, and the conditions under which activity may be resumed. Notice shall be given by registered or certified mail. Upon issuance of such order, and posting of same on the site of the violation, all work on the site of the violation shall cease, except those activities necessary to bring the site into compliance with this ordinance. The person(s) conducting the violating activity and/or the property owner may appeal the Stop Work Order to the Board of Adjustment Pursuant to Article 2.3 of this Ordinance. e) Each day's continuing violation of any provision of this ordinance is a separate and distinct offense. f) Any combination of the foregoing penalties and remedies may be used to enforce this ordinance. ATTACHMENT 7 RESOLUTION FOR ASSESSMENT OF CIVIL PENALTIES M. HENRY WILSON ZONING VIOLATION CASE WHEREAS, Article 23 (Violations, Penalties. and Remedies), Section 23.1 (Violations), states that "[W]henever, by the provisions of this Ordinance, the performance of any act is prohibited, or whenever any regulation, dimension or limitation is imposed on the use of any land, or on the erection or alterations or the use or change of use of a structure, or the uses within such structure, a failure to comply with such provisions of this Ordinance shall constitute a separate violation and a separate offense. ", and WHEREAS, Article 23 (Violations. Penalties and Remedies), Section 23.2(b) (Civil Penalty) of the Orange County, NC Zoning Ordinance allows for the assessment of civil penalties in the amount of $100.00 in securing the abatement of violations of the Ordinance, and WHEREAS, Article 23 (Violations, Penalties, and _Remedies), Section 23.2(b) (Civil Penally) of the Orange County, NC Zoning Ordinance states that "[N]o penalty shall be assessed until the person alleged to be in violation has been notified of the violation by registered or certified mail, delivery restricted to addresses only, return receipt requested, or other means reasonably calculated to provide actual notice to the offender. The notice shall describe the violation with reasonable particularity, specify a reasonable time period within which the violation must be corrected and warn that failure to correct the violation within the. time period will result in the assessment of a civil penalty. ", and WHEREAS, Article 23 (Violations. Penalties,_ and Remedies), Section 23.2(b) (Civil. Penal ) of the Orange County, NC Zoning Ordinance states that "[I]n the event the violation is not corrected within the time period provided in the notice, the Orange County Board of Commissioners shall make written demand for payment upon the person responsible for the violation, and shall set forth in detail a description of the violation for which the penalty has been invoked. ", AND WHEREAS, THE BOARD OF COMMISSIONERS OF ORANGE COUNTY MAKE THE FOLLOWING FINDINGS OF FACT: 1. Marion Henry Wilson, Jr. and Nancy Wilson are the owners of the property with a street address of 1220 and 1302 Ferguson Road, Chapel Hill, North Carolina 27516 (hereafter the "property "). 2. The Orange County Planning Department has received intermittent complaints since 1998 regarding the operation of a motor vehicle repair garage on the property. 3. Notices of Zoning Violation were sent to the property owner on November 24, 1998, and August 19, 1999 regarding this issue. 12 13 4. A letter requesting permission to inspect the site was sent to the property owner on December 14, 2000. The letter made mention of the zoning violation. 5. On January 5, 2001, an inspection of the site was made by the Orange County Zoning Enforcement Officer and a representative of the County Attorney's Office. This inspection revealed that the motor vehicle repair garage was currently in operation. 6. On February 7, 2001, a Notice of Pending Criminal Warrant and Request for Assessment of Civil Penalties for a Continuing Zoning Violation was mailed via certified mail, return receipt requested, to Mr. & Mrs. Wilson. NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners hereby finds that Marion Henry Wilson, Jr. is in violation of the Orange County, N.C`Zoning Ordinance and that this violation has been ongoing since August 11, 1998, and that each day's violation is a separate and distinct offense. Marion Henry Wilson, Jr. is indebted to Orange County, North Carolina in the amount of $ for violation of Section 4.3 (Permitted Use Table) and Section 6.23.1 (Land Use Restrictions), of the Orange County N; C. Zoning Ordinance. IN WITNESS WHEREOF, Orange County has duly caused this instrument to be executed under seal this the day of February, 2001. Commissioner moved passage of the immediately foregoing Resolution, and Commissioner seconded the motion, and the Resolution was passed by the following vote: Ayes: Nos: