HomeMy WebLinkAboutBOA minutes 070918 Approved 811312018
1 MINUTES
2 BOARD OF ADJUSTMENT
3 July 9, 2018
4 REGULAR MEETING
5
6 MEMBERS PRESENT : Samantha Cabe , Chair
7 Karen Barrows , Vice Chair
8 Susan Halkiotis
9 Barry Katz
10 Randy Herman
11 Leon Myers (Alternate)
12
13 STAFF PRESENT : Michael Harvey, Current Planning Supervisor
14 James Bryan , Staff Attorney
15
16 AGENDA ITEM 1 : CALL TO ORDER
17 Chair Samantha Cabe called the meeting to order at 7 : 02 p . m .
18
19 AGENDA ITEM 2 : CONSIDERATION OF ADDITIONS TO AGENDA
20 Michael Harvey , Current Planning Supervisor, introduced Leon Meyers , a new alternate to this board and a professional
21 contractor who has worked on several projects in the county .
22
23 Michael Harvey noted that Leon Meyers would not be hearing the appeals case item because he was not on the board
24 for the previous hearings on this matter. Michael Harvey also noted that the voting members for the variance case
25 would be Karen Barrows , Samantha Cabe , Susan Halkiotis , Randy Herman , and Barry Katz .
26
27 Michael Harvey noted that staff had received a request from those involved in the appeals case to move the appeals
28 case item to be the first item on the agenda . The rationale was that it should be brief.
29
30 Samantha Cabe asked for a motion to amend the agenda to hear this item next .
31
32 MOTION by Karen Barrows moved to amend the agenda to hear this item next . Randy Herman seconded ,
33 VOTE : UNANIMOUS
34
35 AGENDA ITEM 3 : APPROVAL OF MINUTES — April 16 , 2018 , and May 7 , 2018
36 It was noted that the April minutes were on pages 3- 16 of the agenda packet .
37
38 MOTION by Susan Halkiotis to approve the April 16 , 2018 , minutes . Randy Herman seconded ,
39 VOTE : UNANIMOUS (KAREN BARROWS DID NOT VOTE BECAUSE SHE HAD NOT ATTENDED THAT MEETING .
40
41 Randy Herman noted that a section of Line 136 was unnecessarily highlighted . Karen Barrows asked for an explanation
42 of the documents referred to on Page 21 , Line 242 . Randy Herman explained Andy Petesch was referring to
43 documents he had submitted to Michael Harvey . Michael Harvey agreed , elaborating that Andy Petesch was making an
44 argument that the statute does not allow staff to see the documents used by the Department of Revenue to make a
1
45 determination that a property is a farm , This is a Department of Revenue action and staff has no authority to audit,
46 challenge , or review their findings . The statute does not provide that level of oversight .
47
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Approved 811312018
1 It was noted that, as vice chair, Karen Barrows chaired the May 7 , 2018 , meeting . Karen Barrows called for a vote on
2 approval of the May 7 , 2018 , minutes ,
3
4 MOTION by Barry Katz to approve the May 7 , 2018 , minutes with the highlighting eliminated . Randy Herman seconded .
5 VOTE : UNANIMOUS
6
7 AGENDA ITEM 4 : PUBLIC CHARGE
8
9 Karen Barrows read the public charge .
10
11 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to conduct
12 themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any time should any
13 member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending person to leave the
14 meeting until that individual regains personal control. Should decorum fail to be restored, the Chair will recess the meeting
15 until such time that a genuine commitment to this public charge is observed. All electronic devices such as cell phones,
16 pagers, and computers should please be tumed off or set to silent/vibrate.
17
18 The Board of Adjustment is a quasi judicial administrative body established in accordance with the provisions of local
19 regulations and State law to perform specified functions essential to the County's planning program. Action (s) taken by the
20 board are based solely on competent, substantial, and material evidence presented during a previously scheduled and
21 advertised public hearing on a specific item. As detailed within Section 2. 12. 2 of the UDO the Board chair reserves the
22 right to exclude evidence and testimony that is deemed: `incompetent, irrelevant, immaterial, or unduly repetitious ' and
23 therefore fails to reasonably address the issues before the Board of Adjustment. While it should be noted there is no time
24 limit on the presentation of evidence, the Chair asks that the presentation of evidence be consistent with established
25 policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties.
26
27
28 AGENDA ITEM 5 : A-3 - 18 — Receipt of Subpoenaed documentation for a parcel of property
29 located at the intersection of Morrow Mill and Millikan Roads ( PIN : 9729 -50 -7168 ) .
30 In accordance with action taken at its May 7 , 2018 , meeting , the Board of Adjustment shall receive
31 subpoenaed material associated with the review of an appeal application concerning the status of
32 a structure located on a parcel of property , identified utilizing Orange County Parcel Identification
33 Number ( PIN ) 9729 -50-7168 , owned by Southeast Property Group LLC ( a . k . a . Wild Flora Farm )
34 care off Ms . Kara Brewer . The Board of Adjustment is scheduled to receive subpoenaed
35 materials . The Board of Adjustment is scheduled to continue the hearing at its August 13 , 2018 ,
36 regular meeting .
37
38 Samantha Cabe said the board will receive those documents from the council of Wild Flora Farm .
39
40 Andy Petesch , the attorney representing Wild Flora Fauna and Kara Brewer, said the appeal of the decision to
41 issue the subpoenas not withstanding , he has brought responsive documents to the subpoena to which some of
42 the parties do not object. He said he had already provided Orange County Attorney James Bryan and LeAnn
43 Brown , attorney for the other party , copies of these documents . Andy Petesch said he would like to submit a
44 motion to quash and modify the subpoenas .
45
46 Samantha Cabe asked if this is a motion he is requesting the board hear tonight . Andy Petesch answered he is
47 not requesting that the board hear it tonight .
48
49 Samantha Cabe said as chair she has recused herself of anything related to this matter so any motions should
50 be directed to Karen Barrows as vice chair .
51
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Approved 811312018
1 Barry Katz asked for clarification . He reviewed that the board had requested documents and his understanding is
2 that Andy Petesch has filed a motion in superior court opposing the subpoenas . Andy Petesch answered that he
3 filed an appeal of the decision but, not withstanding that appeal , there were certain aspects of the request
4 (certain information ) that the parties he represents had no objections to providing .
5
6 Barry Katz asked if superior court will decide this issue and not this board . Andy Petesch answered that it is his
7 assessment that the appeal has not impacted the status of the case before the board at this point . Prior to
8 August 13 , it may .
9
10 James Bryan requested that Karen Barrows ask for a motion to continue the hearing on this matter to August 13 ,
11 Karen Barrows asked for the motion .
12
13 MOTION by Barry Katz to continue the hearing on this item to August 13 , 2018 , Susan Halkiotis seconded .
14 VOTE ; UNANIMOUS
15
16 AGENDA ITEM 6 : A-4- 18 — PUBLIC HEARING to review a Variance application from Section
17 3 . 7 Economic Development Districts — Economic Development Eno Low Intensity (EDE- 1)
18 general use zoning district for a parcel of property located at 4916 Old Hillsborough Road
19 ( PIN : 0803 =30 =4715 ) within the Eno Township .
20
21 In accordance with the provisions of Section 2 . 10 of the Orange County Unified Development
22 Ordinance ( UDO ) the applicants , Stone and Church Investments LLC , have applied for a
23 VARIANCE from side yard setback standards of the EDE - 1 general use zoning district .
24 Specifically the applicant is requesting a 15 ft . reduction in the 25 ft . required side yard setback for
25 a parcel of property at 4916 Old Hillsborough Road .
26
27 Michael Harvey extended apologies on behalf of the regular clerk of this board , Elaina Cheek . He explained Elaina
28 Cheek was not able to attend this meeting and so he is serving as clerk and staff liaison .
29
30 Michael Harvey reviewed the purpose of the public hearing and the pages in the agenda packet pertaining to this item
31 including ; the staff abstract beginning on Page 29 ; the application package beginning on Page 33 ; the site assessment
32 on Page 42 ; the Board of Adjustment notification materials beginning on Page 43 ; Attachment 4 , which is comments
33 from the adjoining property owner and staff beginning on Page 51 ; variance findings of fact beginning that are blank on
34 Page 53 . He noted that a completed Attachment 5 is on the table this evening with the evidence staff believes will be
35 given and at the appropriate time he will read into the record the filled out Attachment 5 ,
36
37 Michael Harvey asked those who wished to provide testimony under evidence to be sworn in . Five people came
38 forward and were sworn in .
39
40 Michael Harvey asked the chair to enter the staff' s abstract packet including five attachments and two 11A7 copies
41 (one of the approved site plan and one of the revised site plan ) into the record . j
42
43 Samantha Cabe asked for a motion to accept the staff abstract with attachments into the record .
44
45 MOTION by Susan Halkiotis to accept the staff abstract with attachment into the record . Karen Barrows seconded .
46 VOTE : UNANIMOUS
47
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48 Michael Harvey said in Fall 2017 the Orange County Planning Department began working with Stone and Church
49 Investments LLC to work on the redevelopment of 4916 Old Hillsborough Road . He showed an aerial photo ,
50 Attachment 2 in the board packet. He noted the location of the adjacent privately maintained road/driveway along the
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Approved 811312018
1 eastern property line . He pulled up a copy of the approved site plan and indicated even though the document has the
2 word draft on it, the document is a copy of the approved site plan . He oriented the board to where the privately
3 maintained driveway is located in relation to Old Hillsborough Road . He indicated where the existing 3 , 000-square-foot
4 building is located and where the proposed addition that met the 25-foot setback along the western property line would
5 have been located . He reviewed that the applicant experienced issues in complying with all applicable land use
6 standards , most notably drive aisle width to handle two-way traffic of 24 feet as required in Article 6 of the Unified
7 Development Ordinance , installing required parking area of 180 square feet per required space as required in Article 6 ,
8 and also complying with state building code for turn radii of vehicles . He said at the time it (site plan ) was approved by
9 staff, there was an agreement in principle that the applicant could use the private driveway for access . The applicant
10 sought out from the owner of this driveway permission , which was agreed to in principle , to use same foe ingress and
11 egress purposes . This allowed the applicant to get approval of the site plan and proceed .
12
13 Karen Barrows asked when ( permission to use the driveway had been granted ) . Michael Harvey answered in February
14 of this year.
15
16 Michael Harvey said unfortunately in March or April of this year, that approval was rescinded and using the private road
17 became unacceptable . The applicant found himself not in compliance and not able to complete the project as originally
18 approved . The applicant and his engineer, Chad Huffine , looked at how to redesign the site to meet applicable (land
19 use and building code) requirements and found no practical methodology . The applicant then chose to seek a variance
20 from the setback requirement, moving the building to a point on the western property line to observe a 10-yard setback .
21 That would mean the applicant would comply with required drive aisle , parking and turn radii requirements . In
22 Attachment 4 of the packet, staff has been able to provide the board with an email from Mark Micol , owner of adjacent
23 property ( Michael Harvey indicated that property for the board ) , indicating his support for the request, and an email from
24 James Baxter of Orange County Building and Inspections that indicates that moving the building brings the property into
25 compliance for the turn radii requirements . Staff has had a conversation with the individual who maintains this driveway ,
26 who has also indicated support for the variance request .
27
28 Michael Harvey said that as indicated on Page 31 , the application is complete , and staff has notified all property owners
29 required to be notified (of the public hearing ) . Michael Harvey said it is his testimony that granting the variance will not
30 create issues for adjacent property owners for developing their property and will not impact buffers . It is his testimony
31 that granting the variance will not impact traffic flow in this area and does not create a public safety concern from a
32 traffic standpoint . He also pointed out Page 32 , No . 7 , that staff has provided the criteria , outlining the standards , the
33 required evidence , the findings the board must make . In conclusion , he said the board cannot grant a variance without
34 substantial evidence the applicant has met the required burden of proof. And staff recommends granting the variance . If
35 no one has any questions for staff, the applicant' s attorney has a presentation he would like to make .
36
37 Randy Herman said the approved site plan does not seem to indicate access to the private road . Michael Harvey
38 indicated at the time the site plan was approved access to the driveway on the eastern property line had been agreed to
39 in principal by the owner of the roadway and the applicant .
40
41 Samantha Cabe asked if it is the same copy that is available on Page 47 of agenda packet . Michael Harvey said Page
42 47 is the revised site plan showing the building being re-located along the western property line and is part of what was
43 sent out for public notification , Attachment 1 is a blow-up of what is on Page 40 . The board should also have larger
44 copies of Pages 40 and 47 in their packet ( 11 x 17s) .
45
46 Michael Harvey asked the applicant's attorney to come forward .
47
48 Patrick Byker with Morningstar Law Group addressed the board . He had been duly ,sworn . He disclosed that Board
49 Member Leon Meyers has been a friend for 20 years and Leon Meyers ' company is building an addition on his house .
50 He said he understood Leon Meyers is an alternate on the case but he wanted to disclose it for the record .
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Approved 811312018
1 Patrick Byker asked that all the exhibits relied upon or referred to by the witnesses including the staff report that
2 Michael Harvey has just described along with all the attachments be moved into evidence and that judicial notice be
3 taken in terms of the contents of the Unified Development Ordinance , the Comprehensive Plan , and all other official
4 plans . Patrick Byker presented the resume of expert witness , Chad Huffine , marked as Exhibit A , and requested that it
5 be entered into the record to qualify Chad Huffine as an expert witness in this case . Michael Harvey passed out copies
6 of Chad Huffine ' s resume . Patrick Byker said he is representing the property owner, aspiring to relocate the printing
7 business from Durham to Orange County , and he is here to request the variance . He said the board is empowered to
8 vary . Specifically, variance to the side setback requirement listed in Section 3 . 7 of the UDO . He said he would be
9 demonstrating the need is due to the hardship created by the situation . He said the property owner Toby Church would
10 be giving testimony , as well as Chad Huffine ,
11
12 Toby Church , who has been sworn in , addressed the board . He pointed out his wife and business parker, Connie
13 Church , is in the back . They have had a printing business nearby in Durham for 6 years . They live in Hillsborough and
14 found this property in Orange County and were excited to move to this location . They have had enormous growth since
15 they started the business in 2005 with just the two of them as employees . They now have 18 employees and
16 interviewed two today . Toby Church said they purchased the property about this time last year. They went through the
17 process of loans and interviewing and finding a builder. They had a verbal agreement with the neighbor regarding the
18 easement when the plans got approved . They started the site work , the foundation and plumbing , and the neighbor
19 decided the Churches cannot use the easement anymore . He said attorneys for both sides started communicating . The
20 neighbor wanted the Churches to curb and gutter the private road , pay $500 a month for use of the easement and
21 reserve the right to retract at any time . We have to have the setback or we ' re in a mess , Church said . We have built this
22 business from the ground up and this and our kids is all we do .
23
24 Karen Barrows asked when did you start construction on this site? Toby Church answered March and it has been at a
25 total standstill for two or three months .
26
27 Randy Herman asked whether the foundation on the ground is in the location approved on the site plan or in the
28 location asked for this evening ? Toby Church answered that it is located in the position indicated on the approved site
29 plan . They had not poured the pad yet, so they can just move it into the setback .
30
31 Barry Katz asked Toby Church did he not have a formal agreement with his neighbor?
32
33 Toby Church answered no , it was a gentleman ' s agreement . He had received emails from his neighbor who owns the
34 private road or driveway . His neighbor had concern about a road maintenance agreement and Toby Church was happy
35 to do that agreement . It seemed that when everything got on the ground , then the neighbor changed his mind .
36
37 Randy Herman asked why is it not possible to redesign the building so that it is thinner so it fits within the existing
38 setback and allows for the required turning radii .
39
40 Toby Church answered it is a prefabricated building . He said he has $250 , 000 of steel on the ground now that cannot
41 be sent back . If he had anticipated this situation , he would have considered tearing down the existing building and
42 starting the build over rather than trying to add another building to the site .
43
44 Chad Huffine , civil engineer, addressed the board . He has been duly sworn . Chad Huffine said they worked on the
45 premise that the building would have access to the side road . He has enjoyed working with staff on this project . A
46 variance would allow for the building to comply with all other portions of the Unified Development Ordinance and would
47 allow the owner to salvage his materials on the ground and would enable them to get under construction immediately .
48
49 Randy Herman asked what difficulty would it cause to redesign the building to .be skinnier. Chad Huffine answered it is
50 a pre- manufactured steel building , a kit . It was made off-site , brought to the site and needs to be put together. There is
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1 not a good way to retrofit the pre-manufactured building . It would be considered a loss and a new building would have
2 to be purchased .
3
4 Randy Herman asked at what cost? Chad Huffine said he has no idea ; he can only echo what the owner has told the
5 board .
6
7 Samantha Cabe asked whether the board had more questions for Chad Huffine . There were none .
8
9 Samantha Cabe said this board will recognize Mr . Huffine as an expert engineer.
10
11 Patrick Byker introduced Mark Micol , who as been duly sworn . He is the adjacent property owner to the north and to the
12 west . Mark Micol said his family has owned property there for 200 years . As has been stated , he wrote a letter to the
13 Current Planning Supervisor to ask that the board approve the variance . He wanted to publically say he is in support of
14 granting the variance . He said he has kept abreast of the project and he thinks having Toby Church as a business
15 owner in the area would be a big improvement .
16
17 Samantha Cabe asked if the board had any questions . There were none .
18
19 Patrick Byker said introduced the last witness , Orange County Economic Development Director Steve Brantley, who
20 has been duly sworn . Steve Brantley said he endorses the variance request and encourages the board to grant it . The
21 business will invest a projected $ 1 million -plus that will aid our local economy and diversify the non -residential tax base ,
22 The business brings 18 employees and projects a dozen more employment opportunities in 3 to 5 years . Third , this
23 business would help the county attract other clean light industrial businesses . This business helps the county with its
24 social justice goal of creating employment opportunities . Fourth , Orange County businesses use this company including
25 Orange County Schools . Also , there is not a similar business already in Orange County . This business would bring
26 something new . On behalf of the Economic Development Office and at the recommendation of the Economic
27 Development Advisory Board , he recommends granting the variance request of this business .
28
29 Samantha Cabe asked if the board has any questions . There were none .
30
31 Patrick Byker asked Michael Harvey clarifying questions as evidence . He asked Michael Harvey to testify to his
32 experience with the initial site plan review as it related to the infrastructure issues as they pertained to the City of
33 Durham and Durham County , Michael Harvey said before the board is the original staff reviewed site plan . As I have
34 alluded to , there are unique opportunities and development constraints on this property , he said . He indicated on an
35 aerial photo the existing drive cut for Mark Micol ' s property , the property being discussed and the property farther east .
36 He said the first problem staff encountered was that that the existing building location creates pinch points in a couple
37 areas on the property . He said the sloping meandering eastern property line limits the total area to have development
38 be in compliance with all applicable land use regulations including drive aisle width , parking lot requirements and
39 building location . What further complicated this matter is there are existing utility services to this property . There was
40 approximately three and a half months or so when Toby Church ' s site plan was on hold while Durham considered
41 compelling Toby Church to be annexed if utilities were expanded . Staff finally got the determination in late December or
42 early January the property would not have to be annexed . Michael Harvey said then plans began to move forward for
43 actual site plan review . During that three- month intervening process , Chad Huffine , Toby Church and Michael Harvey
44 began investigating how to allow redevelopment of the site and secure compliance with all applicable land use and
45 building code requirements should the (site plan review) process move forward under Orange County's jurisdiction . The
46 solution to the confinements on the property was to use the adjacent roadway, which it was believed the adjacent
47 owner was amenable to . Michael Harvey said then in March , Mr. Church informed staff formal use of the driveway along
48 the eastern property line was not secured and could not be utilized . Mr. Harvey indicated redevelopment of the site
49 became complicated by existing topography , including the meandering eastern property line , and the placement of the
50 existing building . The only way to redevelop the property as proposed was to seek a variance .
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1 Patrick Byker requested to move into record all evidence referred to and provided by the witnesses including all staff
2 reports and attachments and all testimony into the record . Patrick Byker said he and those who spoke have provided
3 competent material and substantial evidence into the record . The variance would allow the Churches to complete the
4 building . He respectfully asked for the board ' s approval .
5
6 Karen Barrows asked for confirmation that Toby Church found out in March that he could not use the driveway . Michael
7 Harvey answered yes . Karen Barrows said Toby Church had said construction began in March . Michael Harvey said
8 construction began before notification from the neighbor. The design work and grading had been done for the site
9 including for the pad .
10
11 Randy Herman said he had a legal question for Mr. Byker. Randy Herman said that under the requirements for issuing
12 a variance , the first one is that unnecessary hardship would result and it sounds to him that Toby Church gave
13 testimony that it would cost more . That doesn ' t usually constitute a hardship . Patrick Byker said in this case he believes
14 it would because the additional cost would be well into six figures and the wording is reasonable use and it is not
15 reasonable to expect a property owner to spend a quarter of a million dollars either to acquire the driveway or to throw
16 away the manufactured building and buy another. Randy Herman thanked Patrick Byker for his response . He then a
17 variance cannot result from hardship created by actions taken by the applicant . One could make the argument that the
18 owner moving forward with construction without knowing for sure that this access would be granted . He asked for
19 Patrick Byker to respond .
20
21 Patrick Byker said every party here proceeded in good faith . It was an approved site plan that was reviewed for several
22 months by the planning department . Everybody offered in faith and reviewed carefully . There were communications that
23 evidenced ability to access this private roadway . After construction began , that changed . I ' m not here to cast
24 aspersions , he said , but the fact is it changed . Patrick Byker said Toby Church is a printer and not in the real estate
25 business or construction business and he just wants to do his job . While it's regrettable , I think it would be unfortunate
26 to lay that situation at the feet of Mr. Church when he had no reason to disbelieve the information that was in front of
27 him and before the planning department when the site plan was approved , Patrick Byker said .
28
29 Samantha Cabe asked Michael Harvey to comment .
30
31 Michael Harvey said he wanted to reiterate his testimony . He said the planning department moved forward with the site
32 plan with the understanding that the use of the adjacent roadway was agreeable . Had we not had that (an
33 understanding the adjacent roadway along the eastern property line) , we could not have in good consciousness
34 approved that site plan , he said , At a certain point in time , the use of this private road became unavailable . Michael
35 Harvey said he has met with this adjacent property owner who controls this roadway and until there was something
36 officially in writing , these options were exhausted . He and Ms . Church reviewed the list of options and determined that
37 the only way to meet the building code and land use requirements was to seek a variance . Mr . Harvey reminded the
38 Board redevelopment of the property is complicated due to existing topography , utility placement, the location of the
39 existing building , and local and State building code compliance points .
40
41 Samantha Cabe asked if the board has any more questions .
42
43 Michael Harvey reminded the board that staff had prepared a draft script with the regulatory findings . He reviewed what
44 the staff' s findings are . He reminded the board members that they cannot ask more questions after closing the public
45 hearing other than consulting with the board ' s counsel . j
46
47 Michael Harvey reviewed the required findings and supporting evidence :
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Approved 8/13/2018
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
FINDINGS :
In accordance with Section 2 . 10 . 3 of the UDO , the Board of Adjustment shall also consider the following ' before
the application for a VARIANCE can be approved .
Sec 2 . 10 . 3 (A) Staff abstract package including e- Yes
Unnecessary hardship ' would mails from James Baxter (Orange
result from the strict application County Inspections) , Marc Micol' ( adjacent property owner) ,
of the Ordinance . It shall not be Application narrative , copy of
necessary to demonstrate that , original approved site plan , and
in the absence of the variance, copy of revised site plan denoting
no reasonable use can be made re -location of building
of the property . demonstrating that :
1 . Original , approved , site plan
demonstrated compliance
with the UDO based on the
use of the adjacent private
roadway ;
2 . Roadway became
unavailable for our use in
the Spring of 2018 ;
3 . Without use of roadway ,
applicant cannot develop
property consistent with
applicable land use ( i . e .
setback) or State Building
code requirements ;
Re-development of the property
cannot comply with all applicable
land use regulations ( i . e . the 25 ft .
setback requirement , required
number of parking spaces , drive-
aisle width requirement , etc . )
without use of adjacent private
roadway , which is no longer viable
for use by the property owner.
As a result the property cannot be
re - developed and reasonable use
cannot be achieved .
Sec 2 . 10 . 3 ( B ) Staff abstract package , Application Yes
The hardship results ; from narrative , copy of original approved
conditions that are peculiar to site plan , and copy of revised site
the property , such as location, plan denoting re- location of building
size , or topography . Hardships demonstrating that :
resulting from personal 1 . Current width of the
circumstances , as well as property and location of
hardships resulting from existing building create a
conditions that are common to ` pinch point' in the middle of
the neighborhood or general the property limiting
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public , may not be the basis for location (s) for parking ,
granting a variance . additional building area , and
required drive- aisles ;
Re-development of the property
cannot comply with all applicable
land use regulations ( i . e . the 25 fto
setback requirement , required
number of parking spaces , drive-
isle width requirement , etc . ) without
requested relief allowing for
encroachment into the required
setback .
As a result the property cannot be
re -developed and reasonable use
cannot be achieved .
Sec 2 . 10 . 3 (C ) Staff abstract package , Application Yes
The hardship did not result from narrative , copy of original approved
actions taken by the applicant or site plan , and copy of revised site
the property owner. The act of plan denoting re- location of
purchasing property with building .
knowledge that circumstances The hardship relates to the existing
exist that may justify the width of the property , the current
granting of a variance shall not development on the land ( i . e . the
be regarded as a self-created existing structure is already in the
hardship : setback and limits re -development
options as currently oriented ) , and
is based on impacts associated
with the loss of use of an adjacent
private roadway .
Sec 2 . 10 . 3 ( D) Staff abstract package , Application Yes
The requested ,variance is narrative , copy of original approved
consistent with the spirit , site plan , and copy of revised site
purpose , and intent of the plan denoting re - location of
Ordinance , such that public building .
safety is secured and substantial There is existing encroachment into
justice is achieved . the required setback of this
property . The applicant is still
required to abide by applicable
landscaping and buffering
standards ensuring adjacent
property owners will not be
impacted . Reduction of setback
will not adversely impact
development of adjacent property .
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4
5 Samantha Cabe asked if any public wished to speak . There were no comments . j
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1
2 Samantha Cabe called for a motion to close the public hearing .
3
4 MOTION by Katz to close the public hearing . Halkiotis seconded .
5 VOTE : UNANIMOUS
6
7 Halkiotis disclosed that she has known Mark Micol for several years . She said Randy Herman noted that the agreement
8 (for use of the private roadway along the eastern property line) was just verbal . She said has had some experience with
9 neighbors agreeing to something and changing their minds and knows how it can happen and sympathizes with it , And
10 she is in favor of granting the variance ,
11
12 Samantha Cabe asked for other comments .
13
14 Karen Barrows said she had highlighted Randy Herman Is note about actions resulting from the applicant but she is
15 comfortable with granting the variance .
16
17 Samantha Cabe asked for a motion with regard to the first finding , unnecessary hardship . She told the board it would
18 be making motions regarding each individual finding and asked board members to state briefly what evidence would
19 support that finding in the motion .
20
21 MOTION by Karen Barrows to approve the first finding , She noted that staff had said that the applicant was moving
22 forward and the agreement for the roadway fell apart and without the variance , the project cannot move forward ,
23 Further Ms . Barrows indicated she agreed with staff' s findings . Barry Katz seconded .
24
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
FINDINGS :
In accordance with Section 2 . 10 . 3 of the UDO , the Board of Adjustment shall also consider the following before
the application for a VARIANCE can be approved .
Sec 2 . 10 . 3 (A) Staff abstract package including e- Yes Yes
Unnecessary hardship would mails from James Baxter (Orange
result from the strict application County Inspections ) , Marc Micol
( adjacent property owner) ,
of the Ordinance . It shall not be Application narrative , copy of
necessary to demonstrate that, original approved site plan , and
in the absence of the variance , copy of revised site plan denoting
no reasonable use can be made re- location of building
of the property . demonstrating that :
1 . Original , approved , site plan
demonstrated compliance
with the UDO based on the I
use of the adjacent private
roadway ;
2 . Roadway became
unavailable for our use in
the Spring of 2018 ;
3 . Without use of roadway ,
applicant cannot develop
property consistent with
applicable land use ( i . e .
setback) or State Building
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Approved 811312018
code requirements ;
Re-development of the property
cannot comply with all applicable
land use regulations ( i . e . the 25 ft .
setback requirement , required
number of parking spaces , drive-
aisle width requirement , etc . )
without use of adjacent private
roadway , which is no longer viable
for use by the property owner.
As a result the property cannot be
re-developed and reasonable use
cannot be achieved .
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2
3 VOTE : UNANIMOUS
4
5 Samantha Cabe asked for a motion regarding the second finding that the hardship results from conditions that are
6 peculiar to the property .
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8 MOTION by Barry Katz that there is a hardship due to topography and it has been demonstrated clearly that with
9 anticipation of using the private driveway, the applicant moved forward in good faith , but the shape of the parcel and the
10 existing building makes it impossible to comply without the variance or the driveway . Randy Herman seconded .
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REQUIREMENT FUDO SUPPORTING EVIDENCE Staff BOA
FINDINGS :
In accordance with Section 2 . 10 . 3 of the UDO , the Board of Adjustment shall also consider the following before '
the application for a VARIANCE can be approved .
Sec 2 . 10 . 3 ( B) Staff abstract package , Application Yes Yes
The hardship results from narrative , copy of original approved
conditions that are peculiar to site plan , and copy of revised site
the property , such as location , plan denoting re- location of building
size , or topography. Hardships demonstrating that :
resulting from personal 2 . Current width of the
circumstances , as well as property and location of
hardships resulting from existing building create a
conditions that are common to pinch point' in the middle of
the neighborhood or general o the property limiting
public , may not be the basis for location (s) for parking ,
granting a variance . additional building area , and
required drive- aisles ;
Re -development of the property
cannot comply with all applicable
land use regulations ( i . e . the 25 ft . 1
setback requirement , required j
number of parking spaces , drive .
isle width requirement , etc . ) without
requested relief allowing for
encroachment into the required
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Approved 811312018
setback.
As a result the property cannot be
re - developed and reasonable use
cannot be achieved .
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2 VOTE : UNANIMOUS
3
4 Samantha Cabe asked for a motion for the third finding that the hardship did not result from action taken by the
5 applicant or the property owner.
6
7 MOTION by Barry Katz for finding three because the applicant or property owner moved forward in good faith and the
8 variance would benefit Orange County and alteration of setback . Susan Halkiotis seconded .
9
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
FINDINGS :
In accordance with Section 2 . 10 . 3 of the UDO , the Board of Adjustment shall also consider the following before
the application for a VARIANCE can be approved .
Sec 2 . 10 . 3 ( C ) Staff abstract package , Application Yes Yes
The hardship did not result from narrative , copy of original approved
actions taken by the applicant or site plan , and copy of revised site
the property owner.' The act of plan denoting re - location of
purchasing property with building .
knowledge that circumstances The hardship relates to the existing
exist that may justify the width of the property , the current
granting' of a variance shall not . ' development on the land ( i . e . the
be regarded as a self- created existing structure is already in the
hardship. setback and limits re -development
options as currently oriented ) , and
is based on impacts associated
with the loss of use of an adjacent
private roadway .
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12 VOTE : UNANIMOUS
13
14 Samantha Cabe asked for motion for the final finding .
15
16 MOTION by Randy Herman that the board finds that requested variance is consistent with the spirit, purpose , and intent
17 of the Ordinance , such that public safety is secured and substantial justice is achieved , There is already an existing
18 encroachment on the site , so the new building would not encroach more than the exiting building and the adjacent
19 owner has expressed that they do not believe it is a public safety hazard to have the building located closer. Barry Katz
20 seconded .
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Approved 811312018
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
FINDINGS :
In accordance with Section 2 . 10 . 3 of the UDO , `the Board of Adjustment shall also consider the following before
the application for a VARIANCE can be approved .
Sec 2 . 10 . 3 ( D) Staff abstract package , Application Yes Yes
The requested variance is narrative , copy of original approved
consistent with the spirit , site plan , and copy of revised site
purpose , and intent of the plan denoting re- location of
Ordinance , such that public building .
safety is secured and substantial There is existing encroachment into
justice is achieved . the required setback of this
property . The applicant is still
required to abide by applicable
landscaping and buffering
standards ensuring adjacent
property owners will not be
impacted . Reduction of setback
will not adversely impact
development of adjacent property .
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2
3 VOTE : UNANIMOUS
4
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5 Samantha Cabe said based on those findings of fact, the board is ready to make a motion to grant or deny the
6 variance .
7
8 MOTION by Karen Barrows to grant the variance . Susan Halkiotis seconded .
9 VOTE : UNANIMOUS
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12 AGENDA ITEM 7 : ADJOURNMENT
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14 MOTION by Randy Herman to adjourn at 8 : 10 p . m . Susan Halkiotis seconded .
15 VOTE : UNANIMOUS
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18 NAME OF CHAIR, CHAIR
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