HomeMy WebLinkAboutOrange County Approved Signed BOA Minutes 21 07 12 Approved 8/9/2021
1 MINUTES
2 BOARD OF ADJUSTMENT
3 REGULAR MEETING
4 JULY 12, 2021 7PM
5 WHITTED BUILDING
6
7 MEMBERS PRESENT: Leon Meyers, Chair
8 Nathan Robinson
9 Jeff Scott
10 Beth Bronson
11 Kent Qandil
12
13 EXCUSED MEMBERS: Susan Halkiotis, Vice-Chair
14
15 UNEXCUSED MEMBERS: SCOTT TAYLOR
16
17 STAFF PRESENT: Michael Harvey, Planner III
18 Elaina Cheek, Board Secretary
19 James Bryan, Staff Attorney
20
21 AGENDA ITEM 1: CALL TO ORDER
22
23
24 AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA
25
26 NO CHANGES TO THE AGENDA
27
28
29 AGENDA ITEM 3: APPROVAL OF MINUTES—
30
31 Note: Minutes will be sent to Board Members and acted upon at the August 9, 2021 regular meeting.
32
33 AGENDA ITEM 4: PUBLIC CHARGE
34
35 Leon Myers read the public charge.
36
37 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to
38 conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any time
39 should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending
40 person to leave the meeting until that individual regains personal control. Should decorum fail to be restored, the
41 Chair will recess the meeting until such time that a genuine commitment to this public charge is observed. All
42 electronic devices such as cell phones, pagers, and computers should please be turned off or set to
43 silent/vibrate.
44
45 The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of
46 local regulations and State law to perform specified functions essential to the County's planning program.
47 Action(s) taken by the board are based solely on competent, substantial, and material evidence presented during
48 a previously scheduled and advertised public hearing on a specific item. As detailed within Section 2.12.2 of the
49 UDO the Board chair reserves the right to exclude evidence and testimony that is deemed: `incompetent,
1
Approved 8/9/2021
1 irrelevant, immaterial, or unduly repetitious'and therefore fails to reasonably address the issues before the Board
2 of Adjustment. While it should be noted there is no time limit on the presentation of evidence, the Chair asks that
3 the presentation of evidence be consistent with established policies, rules of procedure, and acceptable levels of
4 decorum to ensure a fair and equitable hearing for all parties.
5
6
7 AGENDA ITEM 5: CHAIR/VICE-CHAIR COMMENTS
8
9 MOTION
10 VOTE:
11
12 AGENDA ITEM 6: CASE A-1-21: APPEAL/ INTERPREATION of the decision of the Orange County Zoning Officer AS
13 ARTICULATED IN AN April 12, 2021 letter related to the application of land use buffer standards as detailed in Section
14 6.8 of the Unified Development Ordinance (UDO)
15
16 Leon Meyers: This is an appeal of a decision of the Orange County Zoning Officer and we will be begin with
17 determining standing for the purpose of this hearing If you have submitted an application for standing could one of you
18 please come forward and present that application for standing.
19
20 Andrew Petesch: Attorney representation for Alison Arter presented the submittal of an application that they will present
21 their evidence of standing. Mr. Petesch stated under NC when determining standing made are viewed as true and will
22 have an adverse effect on property owner. Mr. Petesch presented examples from another county of determining
23 standing. He stated when determining standing individual property owner can testify to the impact of their property
24 value. He also presented another example of standing from Wake County. Mr. Petesch noted that in the record that his
25 letter requesting a final determination was overlooked.
26
27 Leon Myers: Asked if he would wait until he is presenting the case as this part of the meeting was to determine
28 standing.
29
30 Andrew Petesch: stated that it is related to standing and that is why he wanted to present it at this time.
31
32 Leon Meyers: Agreed
33
34 Andrew Petesch: Presented Applicant Exhibit 1
35
36 Michael Harvey: Stated that Kent Qandil will be arriving late due to emergency.
37
38 Leon Meyers: Asked Mr. Bryan and Board if the meeting should wait until Board Member Kent Qandil arrives or
39 proceed with the meeting.
40
41 James Bryan: Suggested to ask the parties what they would like and if there would be any objections to proceeding.
42
43 Andrew Petesch: Stated he preferred to wait until the remaining board member arrives.
44
45 Leon Meyers: Asked the board if there were any objections to waiting 20 min for Kent to arrive and there were no
46 objections.
47
48 Meeting was paused and resumed at 7:36pm
49
50 Leon Meyers: Resumed meeting by asking Mr. Petesch to proceed and repeat anything the full board needs to hear.
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1 Andrew Petesch: Restated that he went over the examples of establishing standing around the state. He presented a
2 copy of the 160D-1402 North Carolina State Statute as Applicant Exhibit 2. Mr. Petesch proceeds with explaining
3 exhibit 2 regarding standing. Mr. Petesch calls Ms. Alison Arter to testify.
4
5 Alison Arter is sworn in for testimony.
6
7 Andrew Petesch: asked Ms. Arter to state her full name and address for the Board.
8
9 Alison Arter: Stated her name and address as 7900 Orange Grove Road in Chapel Hill in Orange County. Lived there
10 for about 14 years.
11
12 Andrew Petesch: referenced applicant exhibit 1 which included Ms. Arter's sworn declaration in February 2021.
13
14 Alison Arter: Stated that the declaration was still accurate as presented.
15
16 Andrew Petesch: Asked Ms. Arter to describe her property in relation to why she purchased it and what it is used for.
17
18 Alison Arter: Stated she purchased in 2007 at the height of the value of real estate. It was purchased specifically to be
19 able to board horses. She boarded her horses there for 2 years before she purchased the property. The property had
20 an established clientele and when she purchased property this could be used to supplement her income. The property
21 has large assets for use such as a pole barn, stalls with high ceiling, riding arena, large pastures. She has added
22 compost for manure to add back to the fields.
23
24 Andrew Petesch: Asked if she recognized a picture.
25
26 Alsion Arter: Stated yes, it was a GIS image of her property.
27
28 Andrew Petesch: Asked if it appeared to be accurate in terms of where the buildings and horse facilities are.
29
30 Alison Arter: Stated yes.
31
32 Andrew Petesch: Entered the GIS image in the record as Applicant Exhibit 3.
33
34 Alison Arter: Stated that if the board has had a chance to read the document she won't read document about what we
35 have done and the improvements done. The affidavit list the activities.
36
37 Andrew Petesch: Referenced the Exhibit 3 and asked Ms. Arter to describe the facilities again.
38
39 Alison Arter: Reviewed the property and structure features on the Exhibit 3. She then describes her history and riding
40 background as well as what elements she looked at when deciding to purchase the property. Given her background
41 and experience she believes her property could be valued at as much as 1 million dollars perhaps more given the
42 current market. Believes the road would have a negative impact on her property value to at least a 10 percent decrease
43 given where the property is. In order for her to make a profit she will need to charge $700 a month for boarding horses.
44 She will need to be able to attract clients and with the road and development it will cause her to change the mix of
45 people that she can attract and reduce her profits.
46
47 Andrew Petesch: States she mentioned a road and asks if she has seen it before
48
49 Alison Arter:: States yes, it is the top of the array subdivision/site plan that was submitted to Orange County.
50
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1 Andrew Petesch: Asked if this was the site plan that she saw.
2
3 Alsion Arter: Stated she had seen a number of iterations and was uncertain if this was the one that was final plan.
4
5 Andrew Petesch: Asked if the road location on the site plan would infringe on the 30 foot buffer. Ms. Arter stated yes.
6
7 Andrew Petesch: Entered Applicant Exhibit 4. Asked Ms. After some of the concerns and adverse impacts of not
8 including a buffer and not setting back this road from your property line.
9
10 Alison Arter: Stated she was told that it was to be a gravel road and she would have to expect a lot of dust. She
11 describes the winds and how the dust will settle on her property, how fast cars will travel on the road and its impacts on
12 horses. Describes the amount of traffic she will have as to how many cars will travel on the road. Expressed concerns
13 over the light pollution and noise pollution from cars. Explains how important the buffer would be to her. Stated she is
14 worried about the potential for trespass.
15
16 Andrew Petesch: Asked the lack of having the vegetative screen will allow people to see into the property. Ms. Arter
17 said yes.
18
19 Robert Hornik: Objected stating that it is speculative.
20
21 Leon Meyers: Reminded Mr. Petesch that this portion of the hearing where standing is being established and asks if
22 there was more testimony regarding standing.
23
24 Andrew Petesch: Stated he understands this is a long process and that he is under duty by law to enter his testimony
25 evidence into the record and this is his opportunity. Standing is something that can be raised at any time on appeal and
26 if he doesn't enter the evidence before this board and it gets challenges before the courts or the superior court of
27 appeals then I will not have an opportunity to put additional evidence into the record. I am obligated to do this on behalf
28 of my client.
29
30 Leon Meyers: Stated that Mr. Hornik looked like he has something to say.
31
32 Robert Hornik: Stated that he did
33
34 James Bryan: Asked if the parties could social distance
35
36 Leon Meyers: Asked Mr. Hornik to identify himself. He did such by stating his name was Robert Hornik and the attorney
37 for Steve and Sharon Burt who own development property.
38
39 Robert Hornik: Stated that the testimony standing is going beyond determining standing.
40
41 Leon Meyers: Stated for Mr. Petesch to proceed.
42
43 Andrew Petesch: Agreed and noted that all of this testimony is specifically related to standing. Ask about a document
44 which is a schematic of a property trail on her property along the property line. Asks more details about the document
45 referenced
46
47 Alison Arter:: Described details of the document and about changes she is making in order move the trail to make it
48 entirely on her property.
49
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1 Andrew Petesch: Entered referenced document into the record as Applicants Exhibit 5. Asks Ms. Arter is she has any
2 marketing materials received related to this property.
3
4 Alison Arter: Stated she did have the marketing materials for the property.
5
6 Andrew Petesch: Asked Ms. Arter is the document was an accurate copy of one of those.
7
8 Robert Hornik: Stated that was irrelevant
9
10 Andrew Petesch: Is trying to establish relevance that this was purchased as a horse farm and that this is the nature of
11 this property and if this buffer is not applied then there are adverse effects to the property and the horses. All of this
12 goes directly to standing.
13
14 Leon Meyers: Asked for Mr. Petesch to please proceed.
15
16 Andrew Petesch: Proceeded with asking Ms. Arter questions about the document. The document is entered into the
17 record as Applicant Exhibit 6. He asked specifics regarding how the property was marketed and if it was marketed as
18 specifically as a horse property. With Ms. After reading the document specifics.
19
20 Alison Arter: stated that she hoped the board sees how important this buffer would be and that horses are delicate
21 animals and this would be very stressful for them to have the road to close and it would have a negative impact on her
22 property.
23
24 Leon Meyers: Asked Mr. Petesch if there was anything more on standing
25
26 Andrew Petesch: Asked if the board would prefer to allow cross immediately now from Mr. Hornik.
27
28 Leon Meyers: Asked Mr. Hornik if he had any questions for Ms. Arter.
29
30 Robert Hornik: Asked where it states being marked as a horse farm on Exhibit 6.
31
32 Alison Arter: Stated that the property is classified as a farm for tax purposes so that doesn't make it a farm?
33
34 Robert Hornik: Responded that it wouldn't necessarily. Goes on to state that she applied for tax relief in which Ms. Arter
35 responded that it was for sales tax only. Asks about her testimony regarding noises not being good for horses and
36 Electric cars not being good for horses. Ms. Arter responded that neither would be good for horses. Asked how many
37 clients she had boarding their horses on her property.
38
39 Alison Arter: Responded that she had no clients boarding right now. She goes on to state that she didn't want to invite
40 people to board their horses knowing that there would be construction so close to the property.
41
42 Robert Hornik: Asked Ms. Arter about boarding prior to the date when Ms. Batts came and spoke of construction there
43 and when was the last time she boarded horses on the property.
44
45 Alison Arter: Answered in the middle of 2017 there were 4.
46
47 James Bryan: Stated the audio isn't picking up and that social distance would need to be practiced.
48
49 Robert Hornik: Proceeded to ask details about Ms. After's history of boarding horses on the property in 2017.
50
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1 Alison Arter: Stated she has never counted the number of horses boarded only counted them by year and referenced
2 that it was in her affidavit. No horses since 2017 and that she was organizing herself in 2019.
3
4 Robert Hornik: Asked that it has been at least 4 years since Ms. Arter have boarded horses other than your own there.
5 Ms. Arter agreed.
6
7 Robert Hornik: Asked if Ms. Arter has heard of a treatment that can be used to reduce the dust on a gravel road?
8
9 Alison Arter:: Stated that she has not.
10
11 Robert Hornik: Proceeded to ask her employment status. Ms. Arter responded that she was 65 and retired. He then
12 asked if Ms. Arter had any employees there and when was the last time she had employees there.
13
14 Alson Arter: Responded that she did have employees there for the farm back in 2015 and none since because she was
15 doing the labor.
16
17 Robert Hornik: Asked what the factual basis for the appeal that there would be a diminish in value of your property if the
18 Array subdivision is developed as proposed next door?
19
20 Alison Arter: Provided a description of what equestrians look for when wanting to board and ride horses at facilities.
21 Describes her experience in selecting boarding barns that include her own.
22
23 Robert Hornik: Asked if she was looking to buy other boarding barns other than her own?
24
25 Alison Arter: Responded that she was not looking to buy any nor her own at the time.
26
27 Robert Hornik: Continued to ask what kind of facts she has such as an analysis of similar properties.
28
29 Alison Arter: Stated that she had not.
30
31 Robert Hornik: Reiterated that this was just her feeling that her property value would diminish by$100,000.
32
33 Alison Arter: Stated she agreed
34
35 Robert Hornik: Stated that is all she had for Ms. Arter
36
37 Leon Meyers: Asked the Board if the members had any questions for Mr. Petesch or Ms. Arter regarding standing only.
38
39 Nathan Robinson: Asked Alison After in relation to property value impacts did you contact a realtor to document or
40 provide any detail to support your claims?
41
42 Alsion Arter: Stated she spoke with 2 realtors but did not document anything.
43
44 Nathan Robinson: Asked if she had an auditor come in and take a look at it?
45
46 Alison Arter: Stated she had not.
47
48 Leon Meyers: Asked the board if there were any other questions for Ms. Arter and attempted to make a motion that Ms.
49 Arter had standing and Mr. Petesch stated he had one more witness regarding standing for Ms. After.
50
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1 Andrew Petesch: Asked Ms. Arter if she recognized a document.
2
3 Alison Arter: Stated yes, it was a sales document for the property when it was on the market before the Burt's
4 purchased it. Stated she had the original with the date of 2004. Proceeds to read specifics of the document.
5
6 Robert Hornik: Objected and stated it is an old document and it is 2 owners removed from current owner and has
7 nothing to do with the farm status of that property.
8
9 Leon Meyers: Asked Mr. Petesch and Ms. After offering brochure relate to the standing for this case
10
11 Andrew Petesch: Stated it all relates to the nature of this property and how it has been marketed.
12
13 Leon Meyers: Requested Mr. Petesch move forward.
14
15 Andrew Petesch: Called Dr, Tom Daniel
16
17 Tom Daniel is sworn in for testimony
18
19 Andrew Petesch: Asked Mr. Daniel to state his full name and occupation for the Board.
20
21 Tom Daniel: Stated name and that he was an equine veterinarian from Southern Pines.
22
23 Andrew Petesch: Asked Mr. Daniel to provide his background and education and training, if he has served with any
24 organizations, how many horses he has treated in a given month.
25
26 Tom Daniel: Proceeds to describe his background and education and training and states organizations he has served
27 and that he has treated countless number of horses.
28
29 Andrew Petesch: Asked if he also analyzed environmental issues related to horses and their wellness
30
31 Tom Daniel: Stated that horse owners lean on veterinarians a lot for advice on nutrition, environmental safety on trail
32 safety issues.
33
34 Andrew Petesch: Asked to offer Dr. Daniel as an expert on horses and equine well-being and the environmental issues
35 affecting them.
36
37 Leon Meyers: Asked if there were any questions from the board on the status of Dr. Daniel status as an expert. There
38 were no questions and he asked Mr. Petesch to proceed.
39
40 Andrew Petesch: Asked if Dr. Daniel if he heard and reviewed exhibits from Ms. Arter's testimony. He asked Dr. Daniel
41 to provide his opinion of the effects of developing this subdivision and the roadway where it is located on the site plan
42 versus having a 30 foot buffer on the right of way would be set back.
43
44 Tom Daniel: Stated he did and proceeded to answer specifics of the exhibits. Proceeded to stated his opinion that there
45 are 2 main concerns. One being the physical safety of the horses and physical safety of the humans around the horses
46 as well as the health aspects that may be negative on the horses as a result of the proximity of the road. Identifies the
47 specifics of particulates environmentally from the dust and the effects it can have on the horses. Detailed stomach
48 ulcers as another issue revolve around environmental stress and that is main contributing factor. Stated the proximity of
49 the road would have a negative stress level on the horses.
50
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1 Andrew Petesch: Asked Dr. Daniel about applicant exhibit 6 and asked Dr. Daniel to identify elements on document and
2 any issues.
3
4 Tom Daniel: Described the behavior of horses and when they are frightened how they behave.
5
6 Andrew Petesch: Asked about noise for riders in the arena
7
8 Tom Daniel: States yes and describes how the horses behave when frightened
9
10 Andrew Petesch: Asked about the benefits of having a 30 foot buffer
11
12 Tom Daniel: Stated that it would mitigate it.
13
14 Andrew Peteech: Asked if there was no buffer here what is the viability of using this horse facility?
15
16 Tom Daniel: Stated he would not recommend it.
17
18 Andrew Petesch: Asked if there were a 30 foot buffer would that change your opinion to recommend.
19
20 Tom Daniel: Stated he would recommend they go see how good the buffer is, It is potentially workable and viable.
21
22 Andrew Petesch: Stated so in the end it is something that is viable potentially, without it or with the buffer you would not
23 recommend it?
24
25 Tom Daniel: Stated he would not recommend it.
26
27 Robert Hornik: Showed Mr. Daniel exhibit 3 and asked details of the document.
28
29 Tom Daniel: Stated he would have to site visit to see how much of a buffer it would provide.
30
31 Robert Hornik: Asked if Dr. Daniel had been to Ms. Arter's house and he had not. Mr. Hornik proceeded to ask specifics
32 of the property and the driveway and the ring.
33
34 Tom Daniel: Provided details on the elements of a riding ring for horses.
35
36 Robert Hornik: Asked about previously stated things that could frighten a horse
37
38 Tom Daniel: Stated what could frighten a horse such as sudden movements, noises anything that makes them feel
39 unsafe.
40
41 Robert Hornik: Referenced Ms. Arter riding a horse down Orange Grove Road. That could spoke horse
42
43 Tom Daniel: Stated he would not have done that it is a dangerous situation.
44
45 Robert Hornik: Asked if gardens were dangerous for gardens
46
47 Tom Daniel: Stated only if strange people were around them and if anything new is around the horse.
48
49 Robert Hornik: Stated that is all he had for Dr. Daniel.
50
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1 Leon Meyers: Asked the Board if there questions for Dr. Daniel. There were none.
2
3 Andrew Petesch: Provided his closing statement in providing standing for Ms. Arter. That the determination is unlawful
4 and the buffer should apply.
5
6 Leon Meyers: Asked for a motion regarding Ms. Arter's standing
7
8 MOTION made by Nathan to find that Alison Arter has standing for this case
9 VOTE: Seconded by Beth Bronson
10 UNANIMOUS
11
12 Leon Meyers: Asked Mr. Hornik on standing
13
14 Robert Hornik: Submitted Hornik 1
15
16 Andrew Petesch: Objected to the 2 affidavits that have been submitted. Not related to standing or this case and should
17 be submitted as variance.
18
19 Michael Harvey: Stated the document submitted would be labeled Hornik 1
20
21 Robert Hornik: Stated the Burt's own the property about which the buffer and the appeal about the buffer is related.
22 Referenced specifics of 160D-1402C. Reiterated that the Burt's own the property. Based on the statue they have
23 standing.
24
25 Andrew Petesch: Stated the applicant will stipulate to the Burt's standing and asked for evidentiary showing their
26 relation the Bakst.
27
28 Beth Bronson: Asked to clarify that the Burt's have submitted an affidavit
29
30 Robert Hornik: Stated that the Burt's did not submit an affidavit. We have Ms. Bakst affidavit she is involved in the
31 development as well as Mr. Koch's affidavit.
32
33 Leon Meyers: Asked the standing question is the Burt's standing for the hearing. There were no additional questions
34 from the board.
35
36 Leon Meyers: Asked for a motion regarding the Burt's standing
37
38 MOTION made by Beth to find that the Burt's have standing for this case
39 VOTE: Seconded by Jeff Scott
40 UNANIMOUS
41
42 Leon Meyers: Asked if there were anything else with respect to standing for this hearing.
43
44 Michael Harvey: Provided a description of the case as follows.
45
46 CASE A-1-21: APPEAL/ INTERPREATION of the decision of the Orange County Zoning Officer
47 APPEAL/INTERPRETATION application from the determination of the Zoning Officer as articulated in
48 an April 12, 2021 letter (Attachment(s) 1 and 3).
49
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1 Specifically, the applicant is appealing a Final and Binding determination made by the Zoning Officer
2 related to the applicability of Section(s):
3 • Section 1.1.2 Headings and Illustrations;
4 • 6.8.6 (B)Applicability—Land Use Buffers; and
5 • 6.8.6 (D) Land Use Buffer Table
6 of the Unified Development Ordinance (UDO). This case has been assigned permit number BA21-
7 0001 in the County's permit management system, which can be accessed here: Click here to access our
8 portal
9
10 In summary, there is a dispute over the application of land use buffers as detailed in Section(s) 6.8.6
11 (B) and (D) of the UDO. The southern property is being subdivided (i.e. creating additional parcels).
12 As part of the project, a road right-of-way has been located along the northern property line of the
13 applicant, who argues the UDO requires a 30 ft. land use buffer as her property is a bona-fide farm.
14
15 As articulated in Attachment(s) 1 and 3, staff determined existing language imposes an inconsistent
16 standard with respect to the enforcement of land use buffers. This determination is supported by
17 language contained in Section 1.1.2 of the UDO. A separate process to amend the UDO, addressing
18 the identified inconsistency, is moving forward.
19
20
21 Michael Harvey: Asked the board to accept the amended abstract referencing a 50 foot buffer. It should reference a 30
22 foot buffer and on page 32 of the agenda package.
23
24 Leon Meyers: Asked the board if there were any objections to the amended agenda package. It is entered as amended
25 to 30 foot. Asked to provide summary timeline of determination.
26
27 Michael Harvey: Stated he will need to be sworn to provide testimony.
28
29 Michael Harvey is sworn in for testimony
30
31 Michael Harvey: Proceeds with case facts from abstract. (Paused 1:43:33)
32
33 Leon Meyers: Asked the board if there were any questions for Michael.
34
35 Jeff Scott: Asked a question referencing page 16 staff comment about the potential property might be in violation of
36 land use regulation, How does that factor in how we make a decision on whether or not this buffer?
37
38 Michael Harvey: Stated it doesn't what so ever. It is an advisory opinion offered to Mr. Petesch and not subject to
39 appeal or your authority. If I made that determination final and binding, it would be subject to appeal. But that isn't the
40 basis for your consideration this evening. That is for discussion of Ms. Arter and the Planning staff of Orange County.
41
42 Beth Bronson: Asked to clarify 6.8.6 states that no building or structure shall be erected. In this interpretation, staff did
43 not consider a road to be a structure?
44
45 Michael Harvey: Stated that was correct.
46
47 Beth Bronson: Asked Mr. Bryan if there were any case in which that has been argued.
48
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1 Michael Harvey: Offered to answer and asked if she was asking if there has been an appeal to the Orange County
2 Board of Adjustment in the 17 years he has been here questioning what constitutes a structure?
3
4 Beth Bronson: Stated yes, what would constitute a structure in terms of interpreting the UDO?
5
6 Michael Harvey: Answered no, there has not been an appeal in the 17 years he has been here nor has there been an
7 appeal that he was aware of challenging what constitutes a structure, which includes this case.
8
9 Leon Meyers: Asked if there were any more questions for Michael.
10
11 Nathan Robinson: Asked if he made the determination on whether or not it was an active farm?
12
13 Michael Harvey: Answered no, he made a determination that it meets the provisions the North Carolina General Statute
14 providing prima facia evidence proving it is a farm. He stated he still has questions whether he considers it an active
15 farm as outlined in the January letter.
16
17 Leon Meyers: Asked if there were any more questions for Michael.
18
19 Andrew Petesch: Asked Mr. Harvey that he referenced that he had not made a determination whether a road is a
20 structure to follow up on that, he proceeded to ask if he had ever made a determination with respect to the applicable or
21 buffer to active farm or agriculture.
22
23 Michael Harvey: Stated he had not in his 17 years and also had not had a case on what constitutes active farm land or
24 to interpret the provision section of the code.
25
26 Leon Meyers: Asked if there were any more questions.
27
28 Robert Hornik: Stated he had 2 questions. What is the zoning district classification of the Arter property? And what is
29 the zoning district classification of the Burt/Bakst property?
30
31 Michael Harvey: Stated that they are zoned both rural residential which is an R-1 general use zoning district within the
32 UDO.
33
34 Robert Hornik: Reiterated that both properties were zoned R-1.
35
36 Michael Harvey: Agreed.
37
38 Robert Hornik: Stated that his second question. In determining whether a road is a structure, did you look at the
39 definitions in the Orange County UDO?
40
41 Michael Harvey: Stated yes he relied on the framework of the UDO.
42
43 Robert Hornik: Asked if the definition of structure in the UDO include roads or streets.
44
45 Michael Harvey: Stated no
46
47 Leon Meyers: Asked Mr. Petesch to appeal on the merits.
48
49 Andrew Petesch: Referenced comments made about the road as a structure. There is no final determination on
50 whether the road is a structure. The appeal is about the interpretation of the ordinance with respect to the conflict
11
Approved 8/9/2021
1 between 2 provisions. It is an advisory opinion with respect to whether the road is a structure that was done in January
2 22nd not the April determination which was final. He stated he asked for a final determination with respect to active farm
3 also applicability of the buffer and the only final determination that he had received was that Ms. Arter's property was
4 bonafide farm and exempt from zoning. That is why a follow up and an additional request was made for a final
5 determination was given with respect to the applicability of the buffer but not active farm, and that isn't an issue before
6 the board in this case. Reiterated that the Board is the decision maker. Referenced the table in 6.8.6D and if it applied
7 to active farm/agriculture. Breaking down further, there is a lot within that. There is significance to final written
8 determinations of staff. An interpretation of an ordinance that applies into the future. That every decision from now on
9 related to this has to be decided the exact same way. Which is critical in the decision and what it means and whether it
10 was done properly and the conclusion was correct. Mr. Petesch enters Applicants Exhibit 8 and reads the document to
11 the Board. Stated it should provide an outline for examining the question that is before the board. Stated again there is
12 conflict between provisions within the UDO. Proceeds to go into detail within the UDO elements and the exhibit entered
13 into the record. The exhibit is again referenced to outline how and ordinance is interpreted. The highlighted portion on
14 exhibit is read and previous exhibit 2 is referenced. Referenced a previous case in Mecklenburg County. Reads of
15 exhibit (page 183, first paragraph, first column) the text controls if the language is clear and unambiguous. Refers back
16 to page 186 for intent and reads off exhibit. Stated that the first thing that needs to be examined is that if the language
17 is clear, plain and unambiguous. Referenced the 2 conflicting provisions within the UDO. Mr Petesch enters Applicant
18 Exhibit 9 into the record.
19
20 Leon Meyers: Stated that the Boards Rule of Procedure ends the meeting at 10pm and it would be up to the board to
21 extend the meeting beyond that time or continuing it to another hearing.
22
23 Andrew Petesch: Reads off Applicant Exhibit 9. Given those definitions in this exhibit and the nature of this language
24 reading this it is heading and illustrations. It is meant for convenience of reference. Stated that there is a significant
25 difference in some of these. A heading is way different than a table and illustration. An illustration is an example and a
26 heading just tells you where you are. The tables in the UDO give you substance information, what is in that table is part
27 of the law. That is where you get hard objective analysis not here is an example of what could be but you don't have to
28 do that. That makes sense that if you have a conflict there you cant go, this picture says I can do it. That is not what
29 that means. You look at the table that is what the number is. That is the key difference. Mr. Petesch referred back to the
30 definition of meaning and implication and reads part of the UDO buffer language. Mr. Petesch enters into the record
31 Applicant Exhibit 10 as packet and begins to refer and go into detail in exhibit of UDO amendments. Stated that the
32 applicability section is the exact same regarding land use buffers. Refers to the amendments to 6.8.6 that have been
33 done. Noted an amendment that was done in 2012. Identified the pages of the text amendment, staff analysis,
34 summary of report and the actual changes. Referenced specific footnotes within the document of the UDO of the buffer
35 table on page 90. Continues to read the foot notes on the other amendments included in Exhibit (Ordinance 2012-004).
36 Noted there have been many changes over the years but active farm, agriculture have never been pulled out of that
37 column from the buffer. Stated that is something to consider. Referred to 6.8.6A page 69 current UDO. Mr. Petesch
38 continues to read specifics of the UDO and the negative effects referenced by Ms. Arter and Dr. Daniel. Applicant
39 Exhibit 11 is entered into the record. Reviewed Exhibit 11 specifics of 1.1.4 purpose and intent of the UDO. Referred to
40 D on the document that is the ordinance was further designed to provide for residential and industrial growth with
41 districts and uses. Read the section 1.1.8 of UDO regulations of farming and farming activities that the county has no
42 authority over those properties. Stated that there is a hole identified within UDO to protect something very valuable
43 agricultural land within this county. Stated the need to protect from more intense development. But if your saying you
44 don't have jurisdiction over it, it isn't a zoning district and it can't be because you don't have jurisdiction over it. Article 3
45 is referenced for zoning districts and read to the board. The Comprehensive plan is referenced and the board is
46 reminded that both properties are both zoned R-1 district. Chapter 5 Land Use Goals is referenced specifically goal
47 number 2. Reiterated the hazards that were referenced earlier in the hearing on merits. Objective 2.2 is read
48 referencing to continue to protect valuable resources productive agricultural areas, natural areas. Read objective 4,
49 recognizing the right to farm and its specifics. Continued to read the agricultural section which supports the right to farm
50 and minimize negative impacts such as roads. Referenced the chart on page 70 of the record which is the land use
12
Approved 8/9/2021
1 buffer table. Referenced statement from Professor Owens in previously entered Applicant Exhibit. Mr. Petesch stated
2 that if this decision stands then every developer that comes to Orange County can say they do not need to put in a
3 buffer along any street. Stated this would be industrial and manufacturing all of it and that in my opinion goes against
4 the intent of this ordinance of this section and it results in something bizarre and absurd. It would also violate another
5 statutory interpretation of the language. It had a purpose for being in there. If you don't, you have rendered it to be what
6 is called mere surplusage and that is not what this is. This means something to the community and Ms. Arter. Offered to
7 go into detail what an active verses nonactive farm. Referenced Ms. Arter could not offer her property as a proper
8 facility knowing the development was coming to supplement her income. Reiterated how the property was originally
9 marketed as a horse property and detailed the location of the road to the parcel and a potential 13 parcel location.
10
11 Robert Hornik: Objects stating there is no evidence to that effect.
12
13 Beth Bronson:Asked if both parcels were owned by the Burts and both were resurveyed on November 13, 2020.
14
15 Robert Hornik: Stated that at some point they were.
16
17 Andrew Petesch:Asked if his objection is to the recombination.
18
19 Robert Hornik: Stated the characterization
20
21 Andrew Petesch: Stated he wanted to make it clear it was recombined and clarify for the record. If the board would like 1
22 would address what constitutes active verses nonactive farm. Reiterating the seriousness of completely obliterating
23 buffers for agricultural properties. Entered into the record Applicant Exhibit 11 Biomass industry in Europe and reviewed
24 detailed this as an example of not having a buffer. Stated the language is not plain unambiguous, there is ambiguity all
25 over the place even in determining of what meaning is and in determining intent of the ordinance. Analysis that Mr.
26 Harvey did does not stand up to the law and must reverse his decision and that buffer does apply to Ms. Arter's
27 property.
28
29 Leon Meyers: Asked if there were any question from the board.
30
31 Nathan Robinson: Asked for clarity that he said if any developer comes in he can do away with buffers, That is a pretty
32 big conclusion.
33
34 Andrew Petesch: Stated the final determination of the zoning administrator as to how to interpret something that is not
35 clear and the fact that it is needed to have a final determination, says by nature its not clear. He interpreted it and you
36 will only do that one time. It isn't the next person that comes in and says interpret this and come out with a different
37 result for me. That is against the law, that is a violation of due process and gives administers discretionary authority and
38 that is what you have. Not in that case, but in a special use permit or a variance you get to judge a variety of things and
39 these things are case specific. That is not what happens in an interpretation of an ordinance. Everybody gets the exact
40 same treatment for the future and that is why I say in my experience planning staff really dislike doing final
41 determinations because they are boxed in going forward. That is how it has to be done so this analysis says if you are
42 not a zoning district that we recognize then you don't get a buffer. And that included arterial and collective streets and
43 that is for industrial and manufacturing they are right up on the road.
44
45 Leon Meyers: Asked the board if there were any additional questions. Stated the time as 9:48pm
46
47 Robert Hornik: Requested a little extra time due to late member arriving.
48
49 Leon Meyers: Requested a break for the board to reconvene at 9:55pm
50
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Approved 8/9/2021
1 Leon Meyers: Restarted the meeting asking the board if they would like to extend the meeting beyond 10pm or
2 reconvene to another date.Asked if Mr. Hornik had a preference.
3
4 Robert Hornik: Asked when the next meeting and stated that he had already waited long enough
5
6 Leon Meyers: Stated that the board would have to consider a special meeting
7
8 Michael Harvey: Reminded the board that the rules have changed and notifications are different for appeals. A date
9 would need to be identified by all parties.
10
11 Andrew Petesch: Stated that they differ to the pleasure of the board in this matter.
12
13 Leon Meyers: Asked the board for input.
14
15 Beth Bronson: Stated to either extend the meeting by 30 minutes and then at that point determine to reconvene
16 meeting.
17
18 Leon Meyers: Stated the board would need to agree to extend tonights meeting to 10:30pm and at that point we would
19 either extend the meeting or reconvene to another date.
20
21 Nathan Robinson: Agreed to go to 10:30pm and see how far we get.
22
23 Leon Meyers: Asked for a motion to extend the meeting to 10:30pm
24
25 MOTION made by Nathan Robinson to extend to 10:20pm
26 SECONDED by Beth Bronson
27 VOTE: Unanimous
28
29 Leon Meyers: Asked for Mr. Hornik to present
30
31 Robert Hornik: Stated that he would be brief. Mr. Harvey hit the nail on the head with his decision obviously and ask the
32 board to uphold or affirm his decision. Stated the first rule of construction of a statute or an ordinance is to give plain
33 meaning or try to give the effect of the body that adopted the ordinance. Identified section 6.8.6 of the UDO referencing
34 paragraph A is a statement of purpose. How much more clear could the Board of Commissioners been with their
35 statement of purpose. Land use buffers are used to screen and buffer lower intensity and density uses from
36 incompatible higher density land uses. Here we have rural residential on the Arter property as opposed to 12 lot rural
37 residential subdivision. Stated there is not incompatible land uses, they are compatible. The buffers are intended to
38 separate incompatible land uses, there are no incompatible land uses here. Applicability this is where section 1.1.2
39 comes in and how you interpret headings verses text verses drawings and tables. Referred back to the UDO section
40 1.1.2 and read directly from document. Stated what does the text say and refers to section 6.8.6 b the applicability of
41 land use buffers. Continued to read directly from the UDO regarding the requirements for a land use buffer based on
42 the zoning district of proposed use and the zoning district of adjacent uses. Reiterated that both properties are R-1.
43 Referred back to the table 6.8.6 d, when there is an R-1 adjacent to an R-1 there is no buffer required. Referred back to
44 the applicants referring to their property as an agricultural property with active farming, but based on their testimony it is
45 not. Stated the applicant has not boarded any other horses since 2017, there was no testimony on what kind of
46 agricultural use, she has no employees Stated that applicant went to conditional sales tax certificate in October or
47 November of 2020 but that was after Mr. Petesch had spoken with Mr. Harvey and found out that the plan for the Array
48 subdivision was going on and someone got the idea that maybe to apply for farm status in order to try to take
49 advantage of this active farm provision in the table of 6.8.6d. There appears to be ambiguity in the ordinance between
50 the plain text in section 6.8.6.b and the heading that is part of the table in section 6.8.6d.The ordinance tells us when
14
Approved 8/9/2021
1 there is a conflict like this the text should be followed. Which answers the question, the way Mr. Harvey answered the
2 question is that the text ruled over the language in the table. Mr. Hornik read from a case Yancey vs. Hefner from 1966
3 regarding ordinances. Stated he doesn't believe there is any ambiguity in this language. If ambiguity is found, it must be
4 favor of his clients. His clients have explored the option of moving the road to an alternative location, however due to
5 stream buffers and special issues it would not work. Reminded the board that the area where the road will go is mostly
6 vegetated along that common boundary line and will remain. Stated that Mr. Harvey applied what the UDO indicated to
7 do when there is a question. Mr. Harvey interpreted the way the ordinance is supposed to be interpreted. Stated that his
8 clients have been at this application for 2 years, they have gotten approvals as designed. They will be substantially
9 harmed if you reverse Mr. Harvey's decision. Stated that is requires the application of common sense, read what the
10 ordinance states and upholds Mr. Harvey's decision.
11
12 Leon Meyers: Asked if there were questions for Mr. Hornik
13
14 Nathan Robinson: Asked if the dashed lines could be explained on the image submitted on map that shows the horse
15 property and where the development roadway would be. It is page 25 of your statement of standing.
16
17 Robert Hornik: Stated the white lines are the boundaries of the road right of way
18
19 Nathan Robinson: Asked about the ones that are dashed lines.
20
21 Robert Hornik: Stated that would be the actual path of the gravel road.
22
23 Leon Meyers: Asked what the width of the ride of way
24
25 Phil Koch: Stated 50 feet
26
27 Nathan Robinson: Asked the width of the right of way is 50 feet and width of the road is how much?
28
29 Phil Koch: Answered the width of the road is 18 feet.
30
31 Robert Hornik: Introduced Phil Koch, as the designer of the subdivision.
32
33 Leon Meyers: Asked him to come forward and identify himself.
34
35 Phil Koch is sworn in for testimony.
36
37 Phil Koch: Stated that the roadway is 50 feet wide and the travel way, which is the gravel width, is 18 feet wide.
38
39 Beth Bronson: Asked if that was 50 total or 68 total?
40
41 Phil Koch: Answered that it is 50 total.
42
43 Robert Hornik: Stated that the 18 feet wide is roughly in the middle but within the 50 foot.
44
45 Beth Bronson: Asked how most of that vegetation would stay?
46
47 Phil Koch: Stated that any vegetation that is outside the needed ditchline, which is required for storm drainage, would
48 remain. You are not required to clear the entire right of way.
49
50 Beth Bronson: Asked that you are required to create a ditch?
15
Approved 8/9/2021
1
2 Phil Koch: Stated that a ditch would be created in part of the area and basically the edge of the grading, there would be
3 no clearing past that. The edge of the grading can extend to the edge of the right of way in certain circumstances, but it
4 would not do that through the entire roadway.
5
6 Nathan Robinson: Asked if the buffer were required, where would it start. Would it be the edge of the road or the edge
7 of the 18 feet or the edge of the 50 foot right of way?
8
9 Phil Koch: Stated the buffer would be measured from the property line back in if it were required.
10
11 Nathan Robinson: Stated and it would take you to where?
12
13 Phil Koch: Stated if varies compared to the shape of the road. A large portion of the road, particularly in the one corner,
14 it isn't anywhere near the right of way. As it travels eastward and goes around the pond, that is the spot that would be
15 most affected.
16
17 Nathan Robinson: Asked if the area underneath the barn and the area where the dressage ring, What is the distance
18 between the edge and the edge of the property line?
19
20 Phil Koch: Stated from the edge of the roadway here to the property line? Iterated that the image referenced was not
21 the approved plan because there is more distance from the dressage ring down to the roadway than shown on this
22 plan. That distance is well beyond a 30 foot buffer. Referred to a mail kiosk that is not shown on the plan that is more
23 than 30 feet away.
24
25 Leon Meyers: Confirmed that Mr. Koch was looking at Applicant Exhibit 4.
26
27 Phil Koch: Stated, yes this is much closer but it doesn't show the mail kiosk. But the distance is more than 30 feet.
28 Detailed why it was moved to provide more buffer. During an original meeting with Ms. Arter, she expressed her
29 concerns of wanting to keep as many trees to the property line and as close to the pond. Stated that both could not
30 happen and split the difference as best as they could. A large span of trees were kept by the pond and kept as many
31 trees as they could along the property line to help buffer her property even though it was not required. Stated that Mr.
32 Harvey gave him his interpretation which was the same for 2 years.
33
34 Michael Harvey: Corrected Mr. Koch that this project was originally reviewed by Patrick Mallett of his staff and he
35 affirmed his determination.
36
37 Phil Koch: Agreed with that statement.
38
39 Beth Bronson:Asked for the record that the final site plan has not been submitted?
40
41 Phil Koch: Answered that the final site plan had been submitted and approved where it is shown what you have in your
42 hand.
43
44 Michael Harvey: Stated he needed to correct the record it isn't a site plan it is a subdivision plan.
45
46 Beth Bronson: Stated this Applicant Exhibit 4 isn't the final
47
48 Phil Koch: Stated that it looked to be one revision back because it doesn't show the mail kiosk, which was a required
49 element and the road modification due to the kiosk.
50
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Approved 8/9/2021
1 Beth Bronson: Stated that she sees the mail kiosk detail but not sure where
2
3 Nathan Robinson: Asked if the mail kiosk is more than 30 feet off the property line? It says concrete paid for mail kiosk,
4 2 parking spaces.
5
6 Phil Koch: Stated that the mail kiosk location is not the same location because the final mail kiosk has some additional
7 parking for the common area that is there that is gardens.
8
9 Beth Bronson: Asked if you have moved this corner?
10
11 Phil Koch: Answered that the road alignment looks close, but some minor adjustments were made during response to
12 comments with the town and the kiosk moved from the front, but the DOT did not accept that. In working it out with
13 planning that was moved up closer to the common area.
14
15 Beth Bronson: Asked about continuing up around the bend of the pond?
16
17 Phil Koch: Stated once it gets to the bend of the pond, you cannot maintain 30 feet.
18
19 Beth Bronson: Stated no, is the right of way actually crossing into the property line?
20
21 Phil Koch: Answered no, you can't see it that well, It is so small at this point that distance is negligent. Thinks it is about
22 3 feet to the right of way line at that point.
23
24 Leon Meyers: Asked you are saying 3 feet from the property line to the right of way?
25
26 Phil Koch: Answered yes to the right of way.
27
28 Leon Meyers: Asked if there were any questions for Mr. Hornik or Mr, Koch.
29
30 Beth Bronson: Asked when you guys were looking at the road, you said you were looking at going over the pond.
31
32 Phil Koch: Stated that the issue with the system is that the pond creates a restriction at the corner. One look was to see
33 if there was a possibility of going over the pond, but from a stormwater standpoint that was not acceptable. This was
34 done as an LID. A low impact development. It does not need stormwater devices and is being upgraded in order to
35 improve stromwater because of a complaint downstream. We took that into account and the overall impervious is
36 roughly 4.5-5%. We tried to keep under 6% because of the low impact requirements and that allowed it to work. He
37 amount of impervious on this site is roughly the same as what is on Ms. Arter's site.
38
39 Andrew Petesch: objected as it isn't relevant to the analysis of the interpretation of Mr. Harvey's determination. For the
40 record it gets appealed.
41
42 Leon Meyers: Asked the board if there were any other questions
43
44 Andrew Petesch: Asked to have the floor to respond.
45
46 Leon Meyers: Stated he has 1 minute.
47
48 Andrew Petesch: Stated that there was a bit of slide of hand when he said that R-1 is compatible with R-1, but he
49 referred to them as land uses, those are zoning districts. Zoning districts are compatible the land uses are not. He
17
Approved 8/9/2021
1 spoke about there not being a lot of agricultural there, I didn't get into to that. We did not have an opportunity to address
2 that issue.
3
4 Robert Hornik: Asked if he could respond to what Mr. Petesch said. This subdivision submitted and received final
5 approval. They are trying to do an end around to challenge the subdivision approval. That is what is happening here.
6
7 Andrew Petesch: Stated that he cannot let that comment stand. We requested this determination prior to them filing
8 their subdivision plat application.
9
10 Leon Meyers: Closes the public hearing and the matter is before the board.
11
12 Leon Meyers: Asked the board for their thoughts.
13
14 Beth Bronson: Stated they are asking for the interpretation of the text controls over the table. The text doesn't refer to
15 agriculture as active as it is not applicable to the zoning district. So in that sense, would you not be inclined to interpret
16 the table in the absence of text?
17
18 Nathan Robinson: Asked if she was saying if the text doesn't specifically write out what the table is saying?
19
20 Beth Bronson: Answered yes, the text outlines the use the purpose and the applicability and the intent. But in the
21 interpretation when there is ambiguity between headings and illustrations and text, the text controls. The text does not
22 specify what happens to these highways, arterial and collector streets and active farm agriculture. In that sense, there is
23 nothing to interpret in the text because it is absent. And so are you not reduced to interpreting the table? Would be my
24 question.
25
26 Leon Meyers: Stated the text says buffers occur only between different zoning districts. And the table says something
27 different. And then 1.1.2, when there is a conflict the text controls.
28
29 Beth Bronson: Ok, I just wanted to make sure I was clear about that in case there was any meaning or implication
30 between the text of this ordinance and the heading, the text controls. So, because the text states rural use buffers
31 requirements are based on the zoning districts even if that land use isn't a zoning district that doesn't match. And that
32 seems to be the interpretation of the entire board?
33
34 Nathan Robinson: Asked from a legal perspective, when you have these different words and uses there the table for
35 instance there. At the top it says for zoning of adjacent properties. From a legal perspective, we can make a
36 determination whether to discard those words and focus on the text. Is that the essence of the decision of what we have
37 to make?
38
39 James Bryan: Stated first you have to consider this is not like when you guys issue a permit, who do you believe more.
40 You have questions of fact, questions of law. Michael answered a question of law. You guys are gonna answer the
41 same question of law and if it gets appealed to superior court, that judge will answer the same question of law. Court of
42 appeals, Supreme Court it will be the same question of law. It is going to be what does this mean. There are rules to
43 figure out what it means. The first rule is the plain meaning. If it just makes sense than good. The opposite of making
44 sense is whether there is ambiguity. Is there ambiguity because one sentence isn't clear or because it contradicts
45 another one. Once you have that, then you have to say how are we going to resolve it. There are competing rules and it
46 is really complicated. You have these attorneys making good arguments and there are arguments on both sides. There
47 is a right or wrong answer, we don't know until the state supreme court tells us what the ultimate answer is. Michael
48 took his best shot. You guys take your best shot. When they talk about the cadence of construction, this is what they
49 are talking about and it is hard because we don't have a good list of them. So first, you look at the document itself and it
50 says if you have a conflict between the text and the headings and illustrations, go with the text. There are other ones,
18
Approved 8/9/2021
1 specific verse general, that is true. Referenced the case that Mr. Hornik spoke about and that it brought up property
2 rights. We are all neighbors, it isnt who you like, it is what the Orange County BOCC drafted in this. So you might look
3 at the chart itself and if it makes sense.
4
5 Leon Meyers: Asked the board if they would like to extend the meeting time.
6
7
8 MOTION Jeff Scott made motion to extend meeting to 10;45pm
9 Seconded by Kent Qandil
10 VOTE: Unanimous
11
12 Beth Bronson: Stated she wanted to make sure we are discussing the interpretation of 6.8.6b and d. and in 6.8.3 it does
13 state that in some cases the strict section of the ordinance will have no useful purpose in which case the planning
14 director can modify the buffer and landscape and make that determination. This would be the text that referencing farm
15 land. Page 392 of the ordinance. That is the only location within section 6 that active farm land is discussed.6.8.3.a
16 subsection 2. Is there a request for this determination? This is the text for active farm land is in the buffer and that
17 would be the text. Continues to read from LIDO 6.8.3 a subsection 2.
18
19 Leon Meyers: Stated he think he understands the question. We are asked to make a judgement about a staff
20 interpretation.
21
22 Leon Meyers: Asked for a motion to grant the appeal or deny the appeal.
23
24 Beth Bronson: Stated it was very tough to think about the heading usage and illustrations when so much of the UDO is
25 depending on these tables to clarify that text. Because there is no text on the priority of R-1 and what that means and
26 preserving undeveloped areas.
27
28
29 Nathan Robinson: Based on the plain reading
30
31 MOTION made by Nathan Robinson maintain the decision that Michael Harvey made the basis for the motion is the text
32 passage stating where the text controls recognizing there is a conflict between the applicability and the heading in the
33 table. We cant ignore the statement the text controls. Secondly in accordance with the legal guidance when there is a
34 difference in we have to differ back to property rights. We cant resolve the ambiguity here. My motion is to uphold the
35 decision by Michael Harvey on the basis we have to defer back to the property rights of the potential developer and the
36 statement that the text takes precedence over the tables.
37
38 Seconded by Jeff Scott
39
40 VOTE: 4-1 vote
41 Nathan Robinson-Yes
42 Jeff Scott-Yes
43 Leon Meyers-Yes
44 Kent Qandil-Yes
45 Beth Bronson- Opposed
46
47
48 AGENDA ITEM 7: ADJOURNMENT
49
50
19
Approved 8/9/2021
1 MOTION made by Nathan Robinson
2 Seconded by Kent Qandil
3 VOTE: unanimous
4
5
6 26 August 2021
7 LEON MEYERS,CHAIR
20