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HomeMy WebLinkAboutMay 9, 2022 BOA Agenda Packet 1 PLANNING & INSPECTIONS DEPARTMENT Current Planning 131 W. Margaret Lane (919) 245-2575 Suite 201 (919) 644-3002 (FAX) ORANGE COUNTY P. O. Box 8181 www.orangecountync.gov NORTH CAROLINA Hillsborough, NC 27278 AGENDA ORANGE COUNTY BOARD OF ADJUSTMENT 300 WEST TRYON STREET—WHITTED MEETING FACILITY(2ND FLOOR) HILLSBOROUGH, NORTH CAROLINA 27278 Wednesday, May 9, 2022 7:00 p.m. 1. CALL TO ORDER 2. CONSIDERATION OF ADDITION TO AGENDA 3. APPROVAL OF MINUTES October 11, 2021 Meeting Minutes 4. PUBLIC CHARGE The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any time should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending person to leave the meeting until that individual regains personal control. Should decorum fail to be restored, the Chair will recess the meeting until such time that a genuine commitment to this public charge is observed. All electronic devices such as cell phones, pagers, and computers should please be turned off or set to silent/vibrate. The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of local regulations and State law to perform specified functions essential to the County's planning program. Action(s)taken by the board are based solely on competent, substantial, and material evidence presented during a scheduled evidentiary hearing on a specific item. As detailed within Section 2.12.2 of the UDO the Board chair reserves the right to exclude evidence and testimony that is deemed: `incompetent, irrelevant, immaterial, or unduly repetitious' and therefore fails to reasonably address the issues before the Board of Adjustment. While it should be noted there is no time limit on the presentation of evidence, the Chair asks that the presentation of evidence be consistent with established policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties. 5. CASES A. ID22 0002 Special Use Permit application proposing o erect a reel crc�Tcvr Road,telecommunication facility at 3606 Edmund Latta Hillsborough (M 9e77-82-3996) ITEM WAS WITHDRAWN FROM CONSIDERATION AT THE REQUEST OF THE APPLICANT ON APRIL 27, 2022. B. BA22-0001 — Variance application requesting a 8.4 foot reduction to the required site yard setback at 429 Gaines Chapel Road, Efland (PIN 9844-66- 6445) 2 In accordance with UDO Sections 2.10 Variances and 3.3 Residential Districts, the property owners have submitted this variance request for their parcel of property, which is further described as follows: • Orange County Parcel Identification Number: 9844-66-6445 • Acreage: 0.5 acres • Zoning District: Rural Residential • Watershed Designation: Upper Eno Protected The applicants are requesting an 8.4 foot variance from the normally required 20 foot side yard setback. If approved, a structure will be allowed to be 11.6 feet from the side property line versus the typically required 20 foot side yard setback per Section 3.3 of the UDO. The applicants argue the due to the existing power line easement, septic, and well areas, the proposed new home cannot be located and constructed to meet the easement setback and the side yard setback. In addition, the existing home located onsite does not meet the existing side yard setback. 6. ADJOURNMENT If a BOA Member is unable to attend this meeting, please call the Planning Department at 919-245-2575 so staff can determine if a quorum of members will be present for the meeting. 3 Draft 1 MINUTES 2 BOARD OF ADJUSTMENT 3 REGULAR MEETING 4 October 11, 2021 5 ON-LINE ZOOM MEETING 6 7 MEMBERS PRESENT: Leon Meyers, Chair 8 Susan Halkiotis, Vice Chair 9 Beth Bronson 10 Nathan Robinson 11 Jeff Scott 12 13 MEMBERS EXCUSED: Kent Qandil 14 15 MEMBERS UNEXCUSED: Scott Taylor 16 17 STAFF PRESENT: Michael Harvey, Planner III 18 James Bryan, Staff Attorney 19 20 AGENDA ITEM 1: CALL TO ORDER 21 22 Chair Leon Meyers called the meeting to order at 7:00 p.m. 23 24 AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA 25 26 There were no additions to the agenda. 27 28 AGENDA ITEM 3: APPROVAL OF MINUTES—January 25, 2021 and August 9, 2021 29 30 Ms. Beth Bronson wanted to clarify there were no minutes from the December 2020 regular meetings that needed 31 action by the Board. 32 33 Mr. Michael Harvey confirmed minutes from the December 2020 regular meeting had been approved. 34 35 Chair Meyers asked if the two sets of minutes could be approved with a single motion. Both Mr. Harvey and Mr. James 36 Bryan indicated they could. Mr. Harvey asked if Board members had any changes. 37 38 Chair Meyers indicated he did not have any changes. He indicated he had identified some minor editorial issues that 39 were not sufficient to correct in his opinion. 40 41 Vice-chair Susan Halkiotis said the only issue she had was on the January 25, 2021 minutes (Page 1 line 3), identifying 42 the word 'reconvened' was misspelled. Chair Meyers asked if there were any other modifications or corrections (there 43 were none). 44 45 Chair Meyers asked if there was a motion. 46 1 4 Draft 1 MOTION made by Susan Halkiotis to approve the January 25, 2021 minutes, as corrected, and the August 9, 2021 2 minutes as presented. Seconded by Mr. Jeff Scott. 3 VOTE: unanimous 4 5 Chair Meyers thanked the Board and asked if there was any additional business or announcements. Mr. Harvey 6 indicated there would not be a November of December regular meeting as no applications had been submitted. 7 8 Chair Meyers informed the Board staff would be providing the final, approved, rules of procedure for members to keep 9 handy for future use. 10 11 Ms. Bronson asked is staff was still intending on doing a training session this year for Board members. 12 13 Mr. Harvey said he would coordinate with Mr. Bryan on topics and solicit input from the Chair and Vice-chair before 14 reaching out to members on coordinating a training session. He said there may be an opportunity to do training in 15 December using Zoom. 16 17 Chair Meyers agrees a training session would be beneficial for all members. 18 19 Ms. Bronson suggested an in-person training session might be more beneficial for members and easier to handle. 20 There was general discussion on live training session versus a Zoom training session. Staff agreed to look at both 21 options and discuss with the Chair and Vice-chair. 22 23 Chair Meyers asked if the BOCC was looking to appoint a new member to take the place of Mr. Scott Taylor, who had 24 not attended a meeting since his appointment. Mr. Harvey informed the Board there had been applications submitted 25 to fill the seat, but both parties had withdrawn or chose to be appointed to another advisory board. The County would 26 be re-advertising open advisory board seats in the near future. 27 28 Chair Meyers asked if there was anything else. Ms. Bronson asked if future meetings would be Zoom or in-person. Mr. 29 Harvey indicated future meetings would be in-person. He did not believe it was necessary to hold an in-person meeting 30 to approve the two sets of minutes this evening. All members agreed. 31 32 Chair Meyers asked if there was a motion to adjourn. 33 34 MOTION made by Susan Halkiotis to adjourn the meeting. Seconded by Ms. Bronson 35 VOTE: unanimous 36 37 The meeting was adjourned at 7:12 p.m. 38 39 40 41 42 LEON MEYERS,CHAIR 2 5 ORANGE COUNTY BOARD OF ADJUSTMENT PUBLIC HEARING AGENDA ITEM ABSTRACT CASE BA22-0001 Meeting Date: May 9, 2022 Agenda Item No. 5.13 SUBJECT: CASE BA22-0001: VARIANCE request for a parcel of property located at 429 Gaines Chapel Rd. (PIN: 9844-66-6445). DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes ATTACHMENTS: INFORMATION CONTACT: 1. Application Pat Mallett, Erosion Control & Stormwater 2. Zoning Report Supervisor, (919) 245-2577 3. BOA Notification Letter and Public Carlos Sanchez, Planning Tech, Notification Package (919) 245-2597 4. Site Plan 5. Duke Energy Encroachment Agreement PURPOSE: To hold a public hearing, receive testimony and evidence, and take action on a VARIANCE application from the provisions of Section 3.3 Rural Residential (R-1) general use zoning district dimensional standards of the Unified Development Ordinance (hereafter `UDO'). Specifically the applicant is requesting a dwelling to be construction in the 20 ft. side yard setback at 11.6 ft. from the property line. BACKGROUND: The basic facts concerning the current application are as follows: Applicant/Owner: Beverly A Stokes 429 Gaines Chapel Rd Efland, NC 27243 Location: 429 Gaines Chapel Rd. Please refer to Attachment 2 for a map of the subject parcel. Parcel Information: a. PINs: 9844-66-6445. b. Size of parcel: 0.5 acres (21,780 sq. ft.). c. Zoning of parcel: Rural Residential (R1), Upper Eno Protected Watershed Overlay District, and Major Transportation Corridor Overlay District. d. Township: Cheeks. e. Future Land Use Map Designation: 10 Year Transition. 6 f. Growth Management System Designation: Urban Designated. g. Roads: Frontage along Gaines Chapel Road (SR 1316) and Watson Road (SR 1320). h. Water and Sewer Service: The property is not located within a primary utility service area meaning water and sewer service is provided by an individual well and septic system. Surrounding Land Uses: a. NORTH: Property developed for what appears to be residential purposes zoned R1; b. SOUTH: Watson Road (SR 1320) and undeveloped and develop property zoned R1; c. EAST: Gaines Chapel Road (SR 1316) and undeveloped property zoned AR; d. WEST: Undeveloped property zoned R1. Proposal: As detailed within Attachment 1, the applicant has applied for a VARIANCE from the 20 ft. side yard lot setback standards of the R1 general use zoning district. Specifically, the applicant is requesting an 8.4 foot variance from the normally required 20 foot side yard setback. If approved, a structure will be allowed to be 11.6 feet from the side property line versus the typically required 20 foot side yard setback per Section 3.3 of the UDO. The applicant is proposing to construct a new single-family residence on the property, and demolishing an old home that encroaches on the setback. The applicant argues that due to the existing power line easement, septic, and well areas, the proposed new home cannot be located and constructed to meet the easement setback and the side yard setback. In addition, the existing home located onsite does not meet the existing side yard setback. The applicant further argues they were not aware of the utility easement when the property was inherited and that there will be no public safety issue resulting from a variance to the side yard setback. As previously indicated, if the variance is approved, the proposed residence would observe a 8.4 ft. setback from the side yard. ORDINANCE REQUIREMENTS: Per Section 3.3 development project(s) within the R1 general use zoning district are required to adhere to the following dimensional requirement(s): a. Minimum Front/Corner lot (i.e. a parcel having frontage on 2 street rights-of-way) setback from right of way: 40 ft. b. Minimum Side and Rear yard setback from property line: 20 ft. The applicant complies with all applicable development standards allowing for the approval of a previously submitted plot plan denoting the development of a single-family residence with the exception of compliance with the required setback from the side yard setback. Given the existing Tower Power Line Easement, a variance has become necessary to allow the project to move forward. 7 STAFF COMMENT(S): 1. The application has been deemed complete. 2. As required under Section 2.12.6 of the UDO, staff notified all property owners within 1,000 ft. of the subject property of the variance request. This notice also informed parties of the date, time, and location of the public hearing where the request will be reviewed. Copies of the letter, as well as our certification of mailing, are contained in Attachment 3. As of April 28, 2022, the writing of this abstract, staff has not received any complaints/concerns resulting from property owners notified of the request. 3. Staff has determined the granting of the variance will not create issues for adjacent property owners with respect to the development/re-development of their properties. 4. Staff determined the granting of the variance will not have a negative impact on existing traffic service levels in the area or be consistent with applicable access management standards. 5. As detailed within Section 2.10 Variances of the UDO, the Board is authorized to modify or vary regulations when strict compliance with the regulation or standard would result in unnecessary hardships upon the subject property. 6. In accordance with the provisions of Section 2.10.3 of the UDO, the Board may approve a variance in cases where unnecessary hardships would result from carrying out the strict letter of the UDO, when substantial evidence in the official record of the application supports all of the following findings: a. Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. b. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or general public, may not be the basis for granting a variance. c. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. d. The requested variance is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured and substantial justice is achieved. 7. Per Section 2.10.10 of the UDO, the Board is not empowered to grant a variance without an affirmative finding of fact supported by substantial evidence in the record of the proceedings before the Board. Further, the Board may impose appropriate conditions provided same are reasonable related to the variance request. 8. Per Section 2.12.4 of the UDO the affirmative vote of four of the members of the Board is necessary to effect any variation of the Ordinance. Attachment 1 ORANGE COUNTY BOARD OF ADJUSTMENT NOR I'H CAROLINA VARIANCE APPLICATION FORM The Orange County Board of Adjustment with a four-fifths vote, shall vary any specific provision of the Unified Development Ordinance (UDO) when unnecessary hardships would result from carrying out the strict letter of the ordinance. Under the State-enabling act, no change in permitted uses may be authorized by variance and appropriate conditions may be imposed. Please check all applicable boxes and complete the required documentation. SUBJECT PARCEL: Address: rne,, -hcc�el Kfl �c«� , IBC. a7�'�� Parcel Identification Number (PIN): 9844666445 SPECIFIC UDO SECTION(S) REQUIRNG VARIANCE: Article 3: Base Zoning Districts - Section 3.3: Residential Districts R-1 Rural Residential Dimensional and Ratio Standards Side Setback 20ft I, �L,_& �1�j I`S' 77"k ''. , have standing as described in Exhibit A and hereby request a variance from the UDO be granted by the Board of Adjustment from the UDO Sections as listed in above. I request a variance as described in Exhibit B for the reasons stated in Exhibit C. If I intend to present any evidence, that evidence is listed in Exhibit D. STATEMENT BY APPELLANT: I certify that the information presented by me in this application is accurate to the best of my knowledge, information, and belief. Signature of applicant: -10 A , o Date: 2/17/2022 Official Use Only: Date Application Filed: Fee Collected: Accepted by: Permit Case Number: Staff Assigned to Review: Date Scheduled for Public Hearing: 9 EXHIBIT A - STATEMENT OF STANDING: E I am the sole owner of the property subject to this application. I have attached notarized letters authorizing this submittal from all entities or individuals with ownership rights to the property. Owner Information: Name: ')e �A ._, Home Phone: Address: lk' LR Qlzz, r �C�ncuC�e� Cell Phone: 2.(_i;, 65 qrY�, mac- a� 3 E-mail: -&'Je_rly Applicant Information: (dame as owner) Name: Home Phone: Address: Cell Phone: E-mail: Agent Information: Name: Home Phone: Address: Cell Phone: E-mail: Law Firm Name: Bar Number: ** Only attorneys may serve as agents within quasi-judicial hearings such as this appeal. Realtors, surveyors and other professionals may not apply or make arguments on behalf of owners. ** 10 EXHIBIT B— REQUESTED VARIANCE: ❑ 1 request that the standard be entirely vacated. L(I request that the standard be modified as follows: Allow new home to be constructed within the R1-Rural Residence 20ft side yard setback Proposed new home to be constructed at 11.6ft from side yard common property line. I propose that the following conditions be imposed: Allow my proposed new home to be constructed encroching on the side setback for R1 - Rural Residential Zoned Area of 20ft. There is a existing old home on property that is going to be demolished that encroches this setback. The existing Tower Power Line Easement is driving the proposed home location. 11 EXHIBIT C - EXPLANATION OF HARDSHIP To qualify for a variance, the applicant must make four showings. Please describe below how these will be made. (1) Unnecessary hardship would result from the strict application of the ordinance. (It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.) 7 Due to existing Tower Power Line Easment, the proposed new home can not be constructed and meet the eastment setback and the side yard setback of 20ft. Old Existing home on the property does not meet the side yard setback. Requesting the side yard setback variance so new home can be constructed. (2) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. (Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.) See above hardship explaination 12 (3) The hardship did not result from actions taken by the applicant or the property owner. (The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.) RA PAL-C�f-)O awA f�_f i..5 Wi Wav-e- of 41t, "YY1Q OV c { (4) The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. There will be no public safety issue resulting from a variance to side yard setback so that I can construct my new home on my property. (attach additional sheets as necessary) 13 EXHIBIT D - INTENDED EVIDENCE N(I intend to only make arguments and no further evidence is expected to be necessary. V I intend to offer the following evidence: I intend to introduce the following document and have attached it follows: Exhibit#1 entitled: " Site Plan » This is relevant to standards from UDO Sections It demonstrates that: The Site Plan shows the location of the Tower Power Line Easement and proposed locaiton of the new home. It also shows the location of the existing old home. I intend to call the following as a lay witness: Lay Witness#1, . NIA Their intended testimony has been included in an affidavit attached as Exhibit . This witness has personal knowledge of and will testify about: This testimony is relevant to standards from UDO Sections The testimony will demonstrate that I intend to call the following as an expert witness: Expert Witness #1, NIA , is being offered as an expert in 14 They possess specialized knowledge in this field through the following training and/or experience: They reviewed or examined the following data: They used the following method of analysis when reviewing that data: This expert opinion is relevant the standard at UDO Section . It demonstrates that Their intended testimony has been included in an affidavit attached as Exhibit (attach additional sheets as necessary) NOTES: 1. Other than stream buffer variances outside of the first 50-feet from the centerline of a stream, the Board of Adjustment is not authorized to grant variances to any of the standards of: a. Article 7 - Subdivision Design and Improvements, b. Section 6.15 - Erosion and Sedimentation Control, c. Section 6.14 - Stormwater Management, and d. Section 6.16 - Environmental Impact Reports 2. The Board of Adjustment is not authorized to grant a variance that would permit a use in a district where that use is neither a Permitted Use nor a Special Use. 15 3. There are additional review criteria and/or submittal requirements for variance requests from the following: a. Special Flood Hazard Area (SFHA) regulations — refer to Section 2.10.5 of the LIDO; b. Watershed Protection Overlay Districts— refer to Section 2.10.6 of the UDO; and c. Stream Buffers—refer to Section 20.10.7 of the UDO. Ilk ORANGE COUNTY PLANNING AND INSPECTIONS ORANGE COUNTY BOARD OF ADJUSTMENT NQR'I"H CAROLINA VARIANCE AND INTERPRETATIONS FACT SHEET This fact sheet provides a synopsis of the operation/function of the Board of Adjustment, what a variance and/or an interpretation request is, and how such requests are processed. It also covers how a decision on a request is made and how you can participate. 1. What is the Board of Adjustment? The Orange County,Board of Adjustment is a quasi-judicial body responsible for hearing and deciding on variance requests, appeals of staff decisions, and acting on special use permit applications. The Board is composed of 5 regular members and 2 alternates appointed by the Board of County Commissioners. 2. What does the term 'quasi-judicial'mean? There are different types of decisions/processes employed by the County in the application of land use regulations, which are contained within the Unified Development Ordinance (UDO). These `decisions' can be grouped into the following categories: • ADMINISTRATIVE: Typically made by professional staff covering day-to-day non-discretionary matters related to the implementation and enforcement of the UDO including approval/denial of: ➢ Zoning compliance permits (i.e. permits authorizing commencement of development activity); ➢ Site plan applications; ➢ Flood Development permits; ➢ Sign permits; ➢ Etc. NOTE: Administrative decisions are subject to appeal by an aggrieved party to the Board of Adjustment for review. ■ LEGISLATIVE: Governing boards usually make legislative decisions. This is the most common review process employed by the County Board of Commissioners (BOCC) and is used to review multiple development proposals (i.e. zoning atlas amendments, amendments to the UDO, review/action on subdivision proposals, etc.). Decisions are made based on multiple factors including the proposal's consistency with the adopted Comprehensive Plan, recommendations made by the Planning Board and staff, comments received from the public (both for and against a project), as well as the elected officials' experiences, opinions and judgment. 17 • QUASI-JUDICIAL: In this process, the board responsible for rendering a decision acts much like a panel of judges, hearing factual evidence and sworn testimony. Decisions on whether a permit request must be issued or not are based on the competent, substantial, and material evidence presented by all sworn parties with standing. NOTE: The Board of Adjustment reviews matters before them in a quasi-judicial setting. • ADVISORY: Cover recommendation(s) made by County advisory boards (i.e. Planning Board, OUTBoard, Commission for the Environment, etc.) to the BOCC related to the processing of development applications (i.e. zoning atlas amendments, UDO text amendments, etc.). 3. What is a Variance? Put simply, a variance is an approved deviation from County land use regulation(s), as contained within the UDO, for a specific parcel of property. For example: A property owner wishes to erect a house on their undeveloped parcel of property. Applicable regulations require structures observe a setback (i.e. be located a specific distance) from established property lines. Unfortunately, the owner cannot locate the proposed structure on the parcel and meet applicable setback requirements. A 'Variance' is an available tool for a property owner seeking relaxation of development regulations allowing for development to occur. 4. When are Variances issued? Variances are issued in those instances where the Board is able to determine, based on available evidence, the strict application/interpretation of land use regulations create an unnecessary hardship on the property owner preventing or inhibiting their ability to make reasonable use of their property. In issuing a Variance, Board members are required to determine the request supports all of the following findings: (A) Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property; (B) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the 18 neighborhood or general public, may not be the basis for granting a variance; (C) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship; and (D) The requested variance is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured and substantial justice is achieved. 5. Who is responsible for demonstrating the need for a Variance? Applicants have the burden of establishing by competent material and substantial evidence in the form of testimony, exhibits, documents, models, plans, and other materials, the request is necessary and should be approved. 6. How are Variance applications processed? Variance requests are processed in the following manner: a. An application is submitted by the property owner; b. Staff prepares a record of the matter including detail(s) on the applicable regulations; c. A public hearing is scheduled to allow for the review of the request; d. Once the public hearing is called to order, individuals intending to provide testimony to the Board on the request are sworn by the Clerk to the Board of Adjustment; e. The Board of Adjustment accepts evidence into the record and hears sworn testimony from all parties; and f. Upon hearing all evidence associated with the application, the Board renders a decision granting or denying the request consistent with the requirements of the UDO. 7. Are their limits to the Variance process? Yes. The Board is not empowered to issue Variances allowing for land uses prohibited under applicable regulations. Example: There is a parcel of property zoned residential. The UDO outlines allowable and prohibited land uses for this parcel based on its residential zoning. Development of a single-family residence is permitted, but development of a restaurant is prohibited. 19 Someone purchases the property and wants to develop a restaurant. The property is not zoned to allow for that type of development. In this scenario, the property would have to be rezoned to allow for the development of a restaurant. The Board cannot issue variances in instances where there is no unique hardship. Example: Structures erected within the AR general use zoning district are required to observe a 20 ft. setback from common property lines. A property owner does not want to observe this setback and wants their house 10 ft. from all property lines. In this instance, we have a property owner who simply does not want to follow a development standard that is universally applicable to all parties. There is no unique hardship in this instance, merely a desire to deviate from an applicable standard. A Variance should not be issued. 8. What is an appeal? Staff make decisions on the administration and enforcement of County land use regulations on a daily basis. This includes approval and/or denial of permits/applications and the making of binding determinations on the application of land use regulations on a given parcel of property. These decisions are subject to review by the Board of Adjustment with the submittal of an appeal application. 9. What is subject to appeal? When staff makes a `final and binding' determination with respect to the application of land use standards, regulations, or on a specific land use that decision is appealable to the Board of Adjustment. Examples, for illustrative purposes, include: a. Approval/denial of a zoning compliance permit related to the use of a parcel of property; b. Approval/denial of a site plan; c. Application of performance standards (i.e. parking, sign regulations, landscaping/buffering, impervious surface limits, etc.). 10. Who can submit an appeal application? A person with the legal right to initiate an appeal is said to have "standing" to initiate the appeal. A person with standing is entitled to be a "party" in the appeal. Unlike a court proceeding, a quasi-judicial case coming to the Board does not have formal plaintiffs and defendants. The person who initiates the action (an 20 applicant is a "party" to the proceeding. To qualify to become a party, a person must be directly affected by the decision in a way different from the public at large. A definition of standing has been written into State law and includes: a. The owner of the property, someone with an option to purchase the property, and the applicant for a development approval; b. Any other person who will suffer "special damages" as a result of the decision being appealed. STAFF COMMENT: A number of court cases have addressed what is necessary to establish "special damages." Receipt of notice does not indicate status in regards to standing. While physical proximity in and of itself is not sufficient, that is an important factor. An allegation that the action would diminish the property value of the person is not necessary, but it is the "damage" that is most frequently alleged and generally evidenced by the testimony of a professional appraiser. c. An association of neighborhood property owners that would be affected, provided that at least one of the association members would have standing as an individual and that the association was not formed in response to the particular application being appealed; and d. The unit of local government that has made the decision being appealed. 11. How are appeal requests handled? An appeal is processed in the following manner: a. An appeal application is submitted by an aggrieved party with standing; b. Staff prepares a record of the matter subject to appeal including all relevant facts utilized in rendering the disputed decision and the rationale for any and all determinations made; c. A public hearing is scheduled to allow for the review of the appeal application; d. The Board of Adjustment accepts evidence into the record and hears testimony from all parties; and e. Upon hearing all evidence associated with the application, the Board renders a decision to affirm, modify or revise staffs decision. 12. Wont staff be mad and retaliate against me if I appeal a decision? No. All staff decisions/determinations are subject to appeal. It is a right guaranteed under applicable local and State regulations. 21 13. Who may speak at a public hearing where a Variance or Appeal request is being reviewed? Applicants and those individuals supporting, or opposed to, the request are encouraged to attend. Only those with standing may speak or present evidence and are required to be `sworn in'. Individuals may represent themselves or be represented by an attorney and they may have expert witnesses testify for them. The cost for attorneys or expert witnesses is borne by the individual seeking counsel or expert testimony, not the County. The County will not pay for, or reimburse, expenses incurred by an individual in their quest to support or oppose a Variance application. While not required by State or County regulations, all parties with an interest in a Variance request are strongly advised to have an attorney represent them. Engineers, architects, real estate agents, planners and other non- attorneys may only appear as expert witnesses; they may not represent an applicant or those opposed to an application. 14. Can I discuss a Variance or Appeal request with staff or members of the Board of Adjustment? You can discuss the application/request with staff during normal business hours. Unfortunately, members of the Board of Adjustment are not able to discuss a case with you. This is commonly referred to as `ex-parte communication'. Persons affected by a decision have the legal right to hear all of the information presented to members of a board who will be rendering a decision on a variance/appeal application. Specifically they have a right to know all of the "facts" being considered. Therefore members of the decision-making body are not allowed to discuss the case or gather evidence outside of the hearing. Only facts presented to the full board at the hearing may be considered. Please note Board members are not trying to be rude or unsympathetic to your concerns. They are prohibited from engaging in the conversation in the first place as they are required to guarantee an impartial hearing where the `facts' are weighed as they are presented as to whether or not an application should be granted. 15. Is there a record of Variance and Appeal proceedings? Yes. Minutes from the Board of Adjustment public hearing where an application is reviewed/discussed/acted upon are maintained by the County. The Planning Department maintains the application components and become a part of the file on that case. 22 16. Are decisions on Variance or Appeal applications subject to further review? Yes. Decisions are subject to review by the Superior Court. Appeal applications must be filed within 30 days with the court from the date the decision is made available. Please refer to NCGS 160A-393 and Section 2.12.5 (A) of the UDO for additional information. 23 Article 2: Procedures Section 2.1 0:Variances (G) Effect of Approval (1) Approval of a Conditional District is binding on the property and the development and use of the subject property shall be governed by the Ordinance requirements applicable to the specific Conditional District and all approved conditions. (2) The applicant shall comply with all requirements established in the Conditional District approval Ordinance. Only those uses and structures included in the Conditional District approval Ordinance and approved site plan shall be allowed on the subject property. (H) Zoning Atlas Designation Following approval of the Conditional District by the Board of County Commissioners, the subject property shall be identified on the Zoning Atlas by the appropriate district designation. (1) Alterations to an Approved Conditional District (1) Except as provided in Section 6.7.2 for MPD-CD projects, changes to approved plans and conditions of development shall be treated as changes to the zoning atlas and shall be processed as an amendment to such as contained in this Article. (2) The Planning Director may approve minor changes without going through the amendment process. The Planning Director, at his/her discretion, may elect not to allow any proposal as a minor change and will forward the detailed application for changes to the Planning Board and Board of County Commissioners for consideration in accordance with the procedures outlined herein. (3) A minor change is one that will not: (a) Alter the basic relationship of the proposed development to adjacent property, (b) Alter the approved land uses, (c) Increase the density or intensity of development, and/or (d) Decrease the off-street parking ratio or reduce the buffer yards provided at the boundary of the site. 2.9.2 Public Hearing and Notification Requirements The requirement for a public hearing shall follow the procedures for a Zoning Atlas Amendment in Section 2.8.6. Notice of the public hearing shall follow the procedures in Section 2.8.7. SECTIONAR 2.10.1 Purpose The procedures of this section authorize the Board of Adjustment to modify or vary regulations of this Ordinance when strict compliance with the regulation or standard would result in unnecessary hardships upon the subject property. 2.10.2 Application Requirements (A) Applications for a Variance shall be submitted on forms provided by the Planning Department in accordance with Section 2.2 of this Ordinance. Ten copies of the application and supporting documentation shall be submitted. (B) Applications shall include: (1) The section reference, and copy of the existing regulatory language, that is the subject of the application, Orange County,North Carolina—Unified Development Ordinance Page 2-31 24 Article 2: Procedures Section 2.10:Variances (2) A description of the specific modification sought by the applicant. For example, if the request is for a modification of a corner lot setback requirement, the applicant shall provide the exact reduction of the established corner lot setback requested as part of the application, (3) A plot plan, site plan, or other similar document(s)denoting the physical impact of the proposed request on the parcel, (4) A narrative outlining the answers to the five required findings detailed within Section 2.10.4 of the Ordinance justifying the issuance of the variance, and (5) Copies of any additional information deemed essential by the applicant justifying the approval of the request. 2.10.3 Burden of Proof Applicants shall have the burden of establishing by competent material and substantial evidence, in the form of testimony, exhibits, documents, models, plans, and other materials, that the application meets the requirements for approval of a Variance 2.10.4 Authorized Variances A variance may be approved by the Board of Adjustment in cases where unnecessary hardships would result from carrying out the strict letter of the Ordinance,when substantial evidence in the official record of the application supports all of the following findings: (A) Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. (B) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or general public, may not be the basis for granting a variance. (C) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. (D) The requested variance is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured and substantial justice is achieved. 2.10.5 Additional Criteria for Authorized Variances—Special Flood Hazard Areas In addition to the criteria contained within Section 2.10.4, any application for a variance from the flood regulations shall abide by the following additional criteria: (A) Variances may be issued for the repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. (B) In considering variances from the requirements of the flood regulations, the Board of Adjustment shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this Ordinance, and: (1) The danger that materials may be swept onto other lands to the injury of others; (2) The danger to life and property due to flooding or erosion damage; (3) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; (4) The importance of the services provided by the proposed facility to Orange County; Orange County,North Carolina—Unified Development Ordinance Page 2-32 25 Article 2: Procedures Section 2.10:Variances (5) The necessity to the facility of a waterfront location, where applicable; (6) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use; (7) The compatibility of the proposed use with existing and anticipated development; (8) The relationship of the proposed use to the Orange County Comprehensive Plan and floodplain management program for the area; (9) The safety of access to the property in times of flood for ordinary and emergency vehicles; (10) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; (11) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges; and (12) The request for a variance is not after-the-fact or for a situation of one's own making. (C) A written report addressing each of the above factors shall be submitted with the application for a variance. (D) Upon consideration of the factors listed above and the purposes of this Ordinance, the Board of Adjustment may attach such reasonable conditions to the granting of variances as it deems necessary to further the purposes of this Ordinance. (E) Variances shall not be issued within any designated floodway or non-encroachment area if any increase in flood levels during the base flood discharge would result. (F) Conditions for Variances: (1) Variances may not be issued when the variance will make the structure in violation of other Federal, State, or local laws, regulations, or ordinances. (2) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. (3) Variances shall only be issued upon: (a) A showing of good and sufficient cause; (b) A determination that failure to grant the variance would result in exceptional hardship; (c) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; and, (d) That the circumstances on the subject property are unique to the subject property and not to properties in general. (G) Any applicant to whom a variance is granted shall be given written notice specifying the difference between the Base Flood Elevation (BFE)and the elevation to which the structure is to be built and a written statement that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced reference level elevation. Such notification shall be maintained with a record of all variance actions. (H) The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the FEMA and the State of North Carolina upon request. Orange County, North Carolina—Unified Development Ordinance Page 2-33 26 Article 2: Procedures Section 2.10:Variances 2.10.6 Additional Criteria for Authorized Variances—Watershed Protection Overlay District (A) Minor variances for dimensional requirements of the Watershed Protection Overlay District may be approved by the Board of Adjustment in accordance with Section 2.12 of this Ordinance. (B) The Board of Adjustment may approve variance applications to allow the use of off-site septic easements for lots created before January 1, 1994, and for non-conforming lots of record. (C) A description of each project receiving a variance and the reason for granting the variance shall be submitted for each calendar year to the Division of Water Quality on or before January 1st of the following year. (D) All other local governments having jurisdiction within the watershed area and the entity using the water supply for consumption shall be notified of the variance application at least 15 days prior to action on the application. The Planning Department shall notify other local governments via first class mail. (E) Modifications of the Impervious Surface Ratio Modifications of the Impervious Surface Ratios may be requested through one of the following provisions: (1) Through variance procedures of the Board of Adjustment, as described in this subsection (2.10.6). (2) Through approval and recordation of a conservation agreement, as provided in Article 4 of Chapter 121 of the N.C. General Statutes, between Orange County and a land owner that prohibits development of land in a protected watershed in perpetuity. (a) In such cases, a modification of the required impervious surface ratios may be approved administratively but only to the extent that additional land in the same watershed is conserved or protected from development. In such instances, the land that will be subject to a conservation agreement must be adjacent to the land proposed for development and for which a modification of the impervious surface ratios is sought. (i) As an example, a person owning a 40,000 square foot lot and subject to a 12% impervious surface ratio would be limited to 4,800 square feet of impervious coverage. If the person's plans called for 5,500 square feet of coverage(a difference of 700 square feet), the recording of a conservation easement on 5,833 square feet of contiguous property would satisfy the impervious surface ratio requirements. (12%of 5,833 square feet is 700 square feet.) (b) The conservation easement shall describe the property restricted in a manner sufficient to pass title, provide that its restrictions are covenants that run with the land and, in form, be approved by the County Attorney. (c) The conservation easement shall, upon its recording, be in the place of a first priority lien on the property(excepting current ad valorem property taxes)and shall remain so unless, with the approval of Orange County, it is released and terminated. (i) Orange County shall require the priority of the conservation easement to be certified by and attorney-at-law, licensed to practice law in the State of North Carolina and approved to certify title to real property by a lending institution (bank or savings and loan association) doing business in Orange County. Orange County,North Carolina—Unified Development Ordinance Page 2-34 27 Article 2: Procedures Section 2.10:Variances (d) Orange County approval of a release or termination of the conservation agreement shall be declared on the document releasing or terminating the agreement. (i) The document shall be signed by the Orange County Manager, upon approval of the Orange County Board of Commissioners. (ii) No such document shall be effective to release or terminate the conservation agreement until it is filed for registration with the Register of Deeds of Orange County. 2.10.7 Procedure for Certain Stream Buffer Variance Requests Requests for variances from stream buffer requirements within 50-feet from the top of the stream bank shall abide by the following procedure: (A) The Erosion Control Officer shall make a finding of fact as to whether the following requirements have been met: (1) There are practical difficulties or unnecessary hardships that prevent compliance with the strict letter of the stream buffer protection requirements. Practical difficulties or unnecessary hardships shall be evaluated in accordance with the following: (a) If the applicant complies with the provisions of the stream buffer requirements, he/she can secure no reasonable return from, nor make reasonable use of, his/her property. (i) Merely proving that the variance would permit a greater profit from the property will not be considered adequate justification for a variance. (ii) Moreover, the Erosion Control Officer shall consider whether the variance is the minimum possible deviation from the stream buffer requirements that will make reasonable use of the property possible. (b) The hardship results from application of the stream buffer requirements to the property rather than from other factors such as deed restrictions or other hardship. (c) The hardship is due to the physical nature of the applicant's property, such as its size, shape, or topography, which is different from that of neighboring property. (d) The applicant did not cause the hardship by knowingly or unknowingly violating the stream buffer requirements. (e) The applicant did not purchase the property after the effective date of the stream buffer requirements, and then request a variance. (f) The hardship is unique to the applicant's property, rather than the result of conditions that are widespread. (i) If other properties are equally subject to the hardship created in the restriction, then granting a variance would be a special privilege denied to others, and would not promote equal justice. (g) The variance is in harmony with the general purpose and intent of the State's riparian buffer protection requirements and preserves its spirit; and (h) In granting the variance, the public safety and welfare have been ensured, water quality has been protected, and substantial justice has been done. Orange County,North Carolina—Unified Development Ordinance Page 2-35 28 Article 2: Procedures Section 2.10:Variances (B) If the Erosion Control Officer determines that a variance request meets the requirements in (A) above, then he/she shall prepare a preliminary finding and submit it to the State's Environmental Management Commission. (C) Preliminary findings on variance requests sent to the State's Environmental Management Commission shall be reviewed by said Commission within 90 days after receipt by the Director of the Environmental Management Commission. (D) The purpose of the State Environmental Management Commission's review is to determine if it agrees with the Erosion Control Officer's findings regarding whether that the requirements in subsection (A) have been met. (E) The following actions shall be taken depending on the State Environmental Management Commission's decision on the variance request: (a) Upon the State Environmental Management Commission's approval, the Erosion Control Officer shall issue a final decision granting the variance. (b) Upon the State Environmental Management Commission's approval with conditions or stipulations, the Erosion Control Officer shall issue a final decision, which includes these conditions or stipulations. (c) Upon the State Environmental Management Commission's denial, the Erosion Control Officer shall issue a final decision denying the variance. (F) Requests for appeals of determinations made by the State's Environmental Management Commission that the requirements of subsection (A) have not been met shall be made to the State's Office of Administrative Hearings. 2.10.8 Unauthorized Variances (A) Other than stream buffer variances outside of the first 50-feet from the centerline of a stream, the Board of Adjustment is not authorized to grant variances to any of the standards of: (1) Article 7-Subdivision Design and Improvements, (2) Section 6.15 - Erosion and Sedimentation Control, (3) Section 6.14-Stormwater Management, and (4) Section 6.16- Environmental Impact Reports (B) The Board of Adjustment is not authorized to grant a variance that would permit a use in a district where that use is neither a Permitted Use nor a Special Use. 2.10.9 Review Procedures (A) Applications for a Variance shall be reviewed and acted upon by the Board of Adjustment in accordance with the procedures contained in Section 2.12 of this Ordinance. (B) The Planning Director shall complete an assessment of the application and provide a recommendation on the disposition of the application. (C) The assessment shall be introduced at the hearing and become part of the record. 2.10.10 Findings of Fact (A) Required findings of fact, as listed in Section 2.10.4, shall be made in the indicated order by the Board of Adjustment. (B) The Board of Adjustment is not empowered to grant a variance without an affirmative finding of fact supported by substantial evidence in the record of proceedings before the Board. Orange County,North Carolina—Unified Development Ordinance Page 2-36 29 Article 2: Procedures Section 2.11: Interpretations 2.10.11 Conditions of Approval The Board of Adjustment may impose appropriate conditions provided that such conditions are reasonably related to the variance. 2.10.12 Notice Requirements Notice of matters before the Board of Adjustment shall follow the procedures in Section 2.12.6. SECTIONINTERPRETATIONS 2.11.1 Generally An appeal from an order, requirement, decision or determination of the Planning Director shall be decided by the Board of Adjustment based upon its findings of fact and to achieve the intent of this Ordinance. In exercising this power, the Board of Adjustment shall act in a prudent manner so that the purposes of this Ordinance shall be served. The effect of the decision shall not be to vary the terms of this Ordinance nor add to the list of Permitted Uses in the districts. 2.11.2 Application Requirements (A) Applications for an appeal of an interpretation of a decision, file determination, directive, Notice of Violation, or other similar determination shall be submitted on forms provided by the Planning Department in accordance with Section 2.2 of this Ordinance. Ten copies of the application and supporting documentation shall be submitted. (B) Applications must be received by the Planning Director no later than 30 days after the decision, file determination, directive, Notice of Violation, or other similar determination was made. 2.11.3 Burden of Proof Applicants shall have the burden of establishing by competent material and substantial evidence, in the form of testimony, exhibits, documents, models, plans, and other materials, that the application meets the requirements for approval of an appeal from an order, requirement, decision, or determination of the Planning Director. 2.11.4 Stay on Further Proceedings (A) An appeal to the Board of Adjustment from a decision or determination of the Planning Director stays all proceedings in furtherance of the decision or determination appealed from, except as provided herein. (B) An appeal to the Board of Adjustment of a determination or decision of the Planning Director shall not stay further proceedings in furtherance of the decision or determination appealed from, if the Planning Director certifies to the Board of Adjustment in an affidavit either: (1) A stay would cause imminent peril to life or property, or (2) The situation appealed from is transitory in nature and, therefore an appeal would seriously interfere with enforcement of the Ordinance. (C) In either instance, the Planning Director shall place in the determination facts to support the conclusion if(13)(1)and/or(13)(2)are invoked. (D) If(13)(1)and/or(13)(2)are invoked, and approved by the Board of Adjustment, enforcement proceedings shall not be stayed except through the issuance of a restraining order issued by a court of competent jurisdiction. If enforcement proceedings are not stayed, the appellant may file a request for an expedited hearing of the appeal. Orange County, North Carolina—Unified Development Ordinance Page 2-37 30 Article 2: Procedures Section 2.12: Board of Adjustment 2.11.5 Review Procedures (A) Applications for an appeal of an interpretation shall be reviewed and acted upon by the Board of Adjustment in accordance with the procedures contained in Section 2.12 of this Ordinance. (B) The conduct of the hearing shall be consistent with the provisions of Section 2.12 of this Ordinance. (C) The Planning Director shall complete an assessment of the application and provide a recommendation on the disposition of the application. The assessment shall include all relevant facts utilized in rendering the disputed decision and the rationale for the interpretation made by the Planning Director. (D) The assessment shall be introduced at the hearing and become part of the record. (E) Upon hearing all evidence associated with the application, the Board of Adjustment shall close the hearing and render a decision on the matter to affirm, modify, or reverse the decision of the Planning Director. 2.11.6 Findings of Fact The Board of Adjustment shall provide a detailed rationale for its decision in the form of an order to affirm, modify, or reverse the decision of the Planning Director. This order shall provide the necessary justification for the Board's action based on the testimony and evidence entered into the record during the hearing. 2.11.7 Notice Requirements Notice requirements shall follow Section 2.12.6(A). Other subsections of Section 2.12.6 are not applicable to applications for an appeal of an interpretation. 'SECTION 2,12: BOARD OF ADJUSTMENT 2.12.1 General Provisions (A) The Board shall act on all applications before it. (B) The Board shall act on any appeal of a Stop Work Order issued by the Planning Director at its next regularly scheduled meeting or at a special meeting called for that purpose. 2.12.2 Quasi-Judicial Proceedings (A) The Board of Adjustment acts in a quasi-judicial capacity. However, it is not intended that its proceedings be conducted as formally as those before courts. (B) The rules of procedure and evidence set forth in this Ordinance shall be followed to protect the interests of all parties and the public. (C) The presiding officer shall administer oaths to all witnesses and shall make rulings necessary to preserve fairness, order, or proper decorum in any matter before the Board of Adjustment. Any person who, while under oath during a proceeding before the Board, willfully swears falsely is guilty of a Class I misdemeanor. (D) Any member of the Board of Adjustment or any interested party may object to, and the presiding officer may exclude, any evidence, testimony, or statement that is deemed incompetent, irrelevant, immaterial, or unduly repetitious and therefore fails to reasonably address the issues before the Board of Adjustment. 2.12.3 Evidence and Testimony (A) Interested Party and Objections Orange County,North Carolina—Unified Development Ordinance Page 2-38 31 Article 2: Procedures Section 2.12: Board of Adjustment (1) Any interested party shall be permitted to present evidence or testimony, cross- examine witnesses, inspect documents, and offer evidence or testimony in explanation or rebuttal. (2) Any member of the Board of Adjustment may question any interested party. (3) Persons other than interested parties may offer competent, relevant, and material testimony or evidence that is not repetitive as allowed by the Board. (4) Administrative materials such as applications, staff reports, and other relevant administrative materials shall become part of the hearing record and may be provided in written or electronic form. (a) Administrative materials shall be distributed to the applicant and to the landowner, if that person is not the applicant, at the same time they are distributed to the Board. (b) Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the Board at the hearing. (5) Objections regarding jurisdictional and evidentiary issues, including but not limited to, the timeliness of an appeal or the standing of a party, may be made to the Board. The Board chair shall rule on any objections and the chair's ruling may be appealed to the full Board. (B) Subpoenas (1) The Board of Adjustment may subpoena witnesses and compel the production of evidence. (2) To request issuance of a subpoena, persons with standing as detailed under NCGS 160D-1402(c), shall make a written request to the chair explaining why it is necessary for certain witnesses or evidence to be compelled. The chair shall issue requested subpoenas in those cases where testimony or evidence is deemed to be relevant, reasonable in nature and scope, and not oppressive. (3) The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be appealed to the full Board. (4) If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the Board of Adjustment, or the party seeking the subpoena, may apply to the General Court of Justice for an order requiring that its order be obeyed, and the Court will have jurisdiction to issue those orders after notice to all proper parties. (5) No testimony of any witness before the Board of Adjustment, pursuant to a subpoena issued in exercise of the power conferred by this subsection, may be used against the witness in any civil or criminal action, other than a prosecution for false swearing committed on the examination. (6) Anyone who, while under oath during a proceeding before the Board of Adjustment, willfully swears falsely, is guilty of a Class 1 misdemeanor. 2.12.4 Quorum and Vote Required (A) A quorum of the Board is necessary to conduct any business and shall consist of four members. (B) The affirmative vote of four of the members of the Board shall be necessary in order to effect any variation in this Ordinance. (C) A majority of the members shall be required to decide on the issuance of a Special Use Permit or an appeal application. Orange County,North Carolina—Unified Development Ordinance Page 2-39 32 Article 2: Procedures Section 2.13: Exempt Subdivisions 2.12.6 Notification of Board Action (A) Within five working days after Board action, the Planning Director shall have available in the Planning Department's office a notice of decision of the Board's action. (B) The Planning Director shall notify the parties to an application or appeal of the Board's disposition. This includes the applicant, the property owner if different from the applicant, or any individual who has submitted a written request for a copy prior to the date the decision becomes effective. This notice shall be made by registered or certified mail within five working days of the Board's actions. (C) The Planning Director shall keep a copy of the Board's action on file. 2.12.6 Notice Requirements for Matters Before the Board (A) Notice for Special Use Permit or Variance applications shall follow the process in Section 2.7.6 (B) In the case of an appeal of a Stop Work Order issued by the Planning Director, the Planning Director shall give written notice by certified mail to the property owner, and/or person(s) engaged in the alleged violation. Notification of adjacent property owners, posting of property, and publication of a hearing notice is not required. ,SECTION - SUBDIVISIONS 2.13.1 Generally (A) Persons proposing divisions of land that do not constitute a subdivision must request a determination of an exempt subdivision status with the Planning Director. Activities that do not constitute a subdivision are found in Section 7.2.1. (B) One copy of the final mylar plat and three paper copies of the plat shall be submitted with the request for a determination for an exempt subdivision. (C) Exempt subdivisions shall comply with all applicable non-plat requirements of this Ordinance. 2.13.2 Review and Action (A) Following receipt of a request for a determination of an exempt subdivision status, the Planning Director shall make a determination of the land division's exempt or nonexempt status. (B) If the Planning Director determines that the proposed land division does not constitute a subdivision, the Planning Director shall certify the proposed land division as exempt and include the necessary statement on the plat certifying same. (C) If the Planning Director determines that the proposed land division constitutes a subdivision, the applicant shall be informed of such in writing and shall be required to submit the appropriate Subdivision application. SECTMON • - SUBDIVISIONS 2.14.1 Review and Decision Processes and Flow Charts Orange County, North Carolina—Unified Development Ordinance Page 2-40 Attachment 2 Zoning Report 33 Parcel Data: Parcel Identification Number(PIN): 9844-66-6445 Stream,Water Body, and Floodplain Buffers: Size: 0.5 acres Date Created:4/25/22 Streams/Water Bodies: N/A Floodplain: N/A Relevant Documents from Register of Deeds: Land Disturbance Permitting Requirements: Plat Book/Page:W/S SR 1316 Enforced by County: N/A Erosion Control: Permit needed when disturbing over 10,000 sq.ft. Enforced by Others: DOT Right of Way(PB 385/PG 227)and Duke Energy Encroachment Agreement(PB 6730/PG 1351) Stormwater Management: Permit needed when disturbing over 21,780 sq.ft.for residential or 12,000 sq. ft. for nonresidential. Zoning Information: Disclaimer: Base Zoning District: Rural Residential (R1) This document was prepared using best available data. GIS imagery Min Lot Size:40,000 sq.ft. may be slightly skewed and is not as accurate as a professional land Min Lot Width: 130 ft. survey. Max Density: 1 dwelling unit per 40,000 sq.ft. Overlay Zoning District(s): Upper Eno Protected Watershed and Major Date: 4/25/2022 by casanchez Transportation Corridor Max Impervious Surface: 30% (6,534 sq. ft.) Max Building Height: 25' Building Setbacks: Front 40', Side 20', Rear 20' r — t ia- i s o I - o _ W U — - a c� co Soil:GeC R1 Up 0 Protected Flood AR Watershed P na el: #Q� 9844J ISoil•GeB I WgTSON RD F "O I PIN#:9844666445 BEVERLY STOKES Data shown on this map is obtained from Orange County GIS and is for reference only. Exact locations and boundaries should be verified. 429 GAINES CHAPEL RD Map prepared by Orange County Planning&Inspections. EFLAND, NC 272439702 4/25/2022-casanchez N —Utility Easement — 2'Contours (NCDOT) FIRM ;'Soils p Parcels ®Watershed 0 Major Transportation Streets 1 inch=50 feet Corridor Overlay C3Zoning 0 10 20 mmmm=Feet Attachment 3 34 PLANNING & INSPECTIONS DEPARTMENT Administration 131 W. Margaret Lane (919) 245-2575 Suite 201 (919) 644-3002 (FAX) ORANGE COUNTY P. O. Box 8181 www.orangecountync.gov NORTH CAROLINA Hillsborough, NC 27278 April 29, 2022 NOTICE OF BOARD OF ADJUSTMENT (BOA) QUASI-JUDICIAL PUBLIC HEARING TO REVIEW OF A VARIANCE REQUEST FOR 429 GAINES CHAPEL ROAD (PIN: 9844-66-6445) CASE #: BA22-0001 To Whom It May Concern: You are receiving this letter because you are listed as an owner of property within 1,000 feet of a parcel of property with a physical street address of 429 Gaines Chapel Road within the Cheeks Township of Orange County. The parcel, further identified utilizing Orange County Parcel Identification Number (PIN) 9844-66-6445, is approximately 0.5 acres (21,780 square feet) in area; zoned Rural Residential (R-1); with Upper Eno Protected Watershed Protection Overlay District; and Major Transportation Corridor Overlay District. The parcel has frontage on two roadways, specifically Gaines Chapel Road (MTC 1316) and Watson Road (SR 1320). Under the provisions of the Orange County Unified Development Ordinance (UDO), Residential development(s) within R-1 are required to adhere to a minimum building setback of 20 ft. from side property line. The property owner, BEVERLY A STOKES (hereafter `the applicant'), has applied for a VARIANCE from the minimum 20 ft. side yard building setback standards of the R-1 district. Specifically, the applicant is requesting an 8.4 ft. reduction from the 20 ft. required setback off of the right side yard. If approved, a structure will be allowed to be 11.6 ft. from the edge of the side yard versus the typically required 20 ft. setback per Section 3.3 of the UDO. The applicant is proposing to construct a new single-family residence on the property, and demolish an old home that already encroaches within the minimum setback. The applicant argues that due to the existing power line easement and septic and well areas, the proposed new home cannot be located and constructed to meet the easement and side yard setback. The applicant further argues they were not aware of the utility easement when the property was inherited and that there will be no public safety issue resulting from a variance to the side yard setback. A copy of the site plan denoting the issue is attached for your review. Section 2.10 of the UDO requires that the Board of Adjustment (BOA) hold a Public Hearing to consider variance requests and that notices be sent to property owners within 1,000 feet of the subject property informing them of the date, time, location, and purpose 35 of the hearing. This Public Hearing is intended to allow the BOA, property owners, and the applicant an opportunity to review and discuss the request. In accordance with the provisions of Section 2.10.3 of the UDO, the BOA may approve a variance in cases where unnecessary hardships would result from carrying out the strict letter of the UDO, when substantial evidence in the official record of the application supports all of the following findings: (A) Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. (B) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or general public, may not be the basis for granting a variance. (C) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. (D) The requested variance is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured and substantial justice is achieved. The Public Hearing has been scheduled as follows: Date: Monday, May 9, 2022 Time: 7:00 p.m. Location: Orange County Whitted Meeting Facility (2nd floor) 300 West Tryon St., Hillsborough, NC 27278 Parking is directly across the street from this facility. See attached map for parking. If you have questions, or require additional assistance, please contact Planning staff at (919) 245-2575. Sincerely, atrick Mallett Erosion Control and Stormwater Supervisor Orange County Planning and Inspections Department Enclosures: Map of the Subject Property Site plan Whitted Meeting Facility Parking Map Attachment 1 a 0 , 0 I I I I I I J sou-THE RN DR W a L) CO W Z a c� No wATSoN RD Subject Parcel (9844-66-6445) Subject Parcel Information _ z - j r Parcel Identification Number: 9844666445 r Property Owner: Beverly Stokes Address: 429 Gaines Chapel Rd EFLAND, NC 272439702 _ Zoning District(s): R1 (Rural Residential) , N 'T ,in-zoo feet Zoning Overlay(s): Upper Eno Protected ORANGE COUNTY Watershed, Major Transportation Corridor - o 200 Overlay District Planning and lns4 / n2Department(BC)20z 0:iUu VVorKspace�rrrojects\Zoning\Variance 429 Gaines Chapei Hill Road\Variance 429 Gaines Chapel Hill Road.aprx\Attachment i Reporis 37 wC/NI TY MAP SITE PLAN ORANGE COUNTY HEALTH DEPARTMENT CONSTRUCTION AUTHORIZATION SITE MAP solo NOR CA21-0274 PIN 9844666445 TMBL 3.35.13.9 a LOCATION: 429 GAINES CHAPEL RD OCPL OWNER: BEVERLY STOKES MAR�N�N < Existing Well-to be APPLICANT: P BY: Philip RAViOLINA laro, REHSTOM 6/29/2021ES Proposed Location of Properly Abandoned I p SITE Z New 1000 gal Septic Tank per W20-0299 0 w q Existing Shed to remain WATSON RD N86 27 20"E 26.13' FIP rl I LEGEND CC N86• 7' 20"E 147.55' �°'• 'a • FIP-FOUND IRON PIN/PIPE FIP i Proposed Step 35, EM;� Porch 67 9, 1 w I p CALCULATED POINT House - CC CONTROL CORNER Shed House Step I U o GPIN GRID PARCEL ID NUMBER Existing Impervious surfaces: —_ (t0 be WM WATER METER __— Mn EM ELECTRICAL METER House 1152 SF W I� _ ______6__0._9_'__-1 -+� removed) W Slab 22 SF Z - Sidewalk Fo Z OT OIL TANK Steps 31 SF a M R6m�e`;o• .•�• 5��ec4Ipe L N ST SEPTIC TANK Porch 166 SF LV xi 5�db ©•'• I^ R/W RIGHT OF WAY Sidewalk 95 SF I.Q _ 1-4 OT •Fbrc�i j-3_ _ C/L CENTERLINE OF ROAD Sheds/Ramp 458 SF O W _ _ _ he ' L > °c3Y EOP EDGE OF PAVEMENT Conc. slab 22 SF ~W w � �K LINe �•' `r `� POWER POLE well 3 SF v oo .SE'.IBA_ �. o Oil Tanks 32 SF co 'o 0.50,11 c1_e5 •'� `� '_ 'Stepp o EM . ti _2 SF _ c0.12 es �,�- _ST Z Existing Septic Tank to be abandoned within f ' Total Existing 1983 SF __ __ Existing Drainfield- Proposed Imaervlous surfaces, = flagged pink on site 3, — SEPTIC ENCROACHMENT House 1104 SF Older �-��� Llne _ ' __ _ AREA TO DUKE ENERGY RM R1W FIP CC_ s8s•27' 02 173.58' PER BK 6730 P 1351-1358 Eop — CIL pVMT WATSON ROAD Proposed Location of (45' new 3" or 4" Sch 40 =RELIANT= Supply line-to be R/W Proposed Location of sheathed in ductile iron I LAND S U R V E Y Approved Traffic Barrier pipe or equivalent-Install P.L.L.C. P-1735 �`�1111+��ffrj OWNER OF RECORD: cleanout at drainfield I PROJECT NAME: CARa,,// BEVERLY STOKES STOKES SITE PLAN ��(��'•`' •�5t'•t�i�.�� GPIN: 9844666445 RLS PROJECT No. 3253 ?• �`� �Q�• DB 6405 PG 558 SITE PLAN of the PROPERTY of :ate SEAL 9r . ZONING BEVERLY STOKES IL •r L-4482 dr R1 RURAL RESIDENTIAL at 429 GAINES CHAPEL ROAD e�� yam• ORANGE COUNTY EFLAND, NC 27243 p���s®sy�w••�t `; CHEEKS TOWNSHIP, ORANGE COUNTY �/+•®�•••n`(��.�* O SETBACKS DRAWN FOR: BEVERLY STOKES 919-560-4137 _ ?H'•µ�4>< _ STREET = 40' SURVEYED: DRAWN: 1 — 501 SIDE = 20' 12-18-2020 02-13-2021 DB 6405 PG 558 REAR = 20' Do I LICENSED SURVEYOR 1320 HAWTHORNE LANE,BURLINGTON,NC 27215 434-250-4500 Whitted Building - 300 W. Tryon Street, Hillsborough L 5 it Townes r. Hillsbroroulgh LU -s- 1 l � Parking \ J 1 =; Parking � r Whitted Buildinglei 1 .�� N . low W TRYON ST Parking r i Parking r J W - t= N i in=too feet Feet COUNTY 0 100 Planning and Inspections Department(BC) do 4h4/zozz LZI .71111IM1111 O:\GIS Workspace\Projects\Misc\Whitted Building Location.aprx\Whitted Building and Parking 39 PIN OWNERl_LAST OWNERl_FIRST OWNER2_LAST OWNER2_FIRST ADDRESSI ADDRESS2 CITY STATE ZIPCODE 9844666445 STOKES BEVERLY <Null> <Null> 429 GAINES CHAPEL RD <Null> EFLAND INC 272439702 9844674467 SHOFFNER SHIRLEY DAYE 316 GAINES CHAPEL RD EFLAND NC 27243 9844677611 CASTANEDA MONTELONGO REY CASTANEDA MARIA GALINDO 500 OLD FIELD UN EFLAND INC 27243 9844679555 DAUBENSPECK DANIELS 326 GAINES CHAPEL RD EFLAND INC 27243 9844672406 BALDWIN TIMOTHY 214 GAINES CHAPEL RD EFLAND INC 27243 9844578428 SAINT MATTHEWS LODGE 407 UNKNOWN ADDRESS MEBANE INC 27302 9844577367 ST MATTHEWS LODGE <Null> <Null> <Null> 219 GAINES CHAPEL RD <Null> EFLAND INC 27243 9844672209 TORRES JOSE TORRES DOLLVEEN WILLIAMS 218 GAINES CHAPEL RD <Null> EFLAND INC 27243 9844679028 LOFTIN JUNIOUSG HRS <Null> <Null> 16 TOMPKINS RD C/O KEVIN KIRKLEY EAST BRUNSWICK NJ 8816 9844562363 BANNON JOHN W BANNON JENNIFERS 1822 BUSHY COOK RD <Null> EFLAND INC 27243 9844676062 STURDIVANT DENISE DEARMAN STURDIVANT HORACE 1003 BRICKER STREET GREENSBORO INC 27401 9844664781 THOMPSON ALLONIA M ETAL JONES CRAVOR Z 2701 GRANVIEW AVE <Null> BLUEFIELD WV 24701 9844663995 FLORENCE THERESA A ETAL ANTHONY ROZZIE A 2412 KELLY LAKE DR <Null> DECATUR GA 30032 9844567861 RILEY ROBERT L RILEY CORDELIA B 405 WATSON RD EFLAND INC 272439703 9844567939 MOORE LUVENIA A <Null> <Null> 401 WATSON RD <Null> Efland INC 27243 9844662910 SPRINGS SYLVESTER 4026 SOUTHERN DR EFLAND INC 272439652 9844661922 SATTERFIELD IRAJR SATTERFIELD NELL 4026 SOUTHERN DR EFLAND NC 27243 9844569992 SATTERFIELD IRA <Null> <Null> 4026 SOUTHERN DR <Null> EFLAND NC 27243 9844666950 MCADOO DAVE HRS <Null> <Null> 1001 PRESIDENT ST APT H3 BROOKLYN NY 11225 9844564891 MCKOY RON CHRISTOPHER MCKOY ANGELAA 419 WATSON RD <Null> EFLAND INC 27243 9844668776 RAMIREZ VELMAR EDUISAR LOPEZ DIONICIO DOYLI CASTANON 418 GAINES CHAPEL RD <Null> EFLAND NC 27243 9844666850 MCADOO CHARLES MCADOO EVELYN 1001 PRESIDENT ST#H3 <Null> NEWYORK NY 11225 9844660724 SATTERFIELD IRAJR SATTERFIELD LIBBY D 418 WATSON RD EFLAND NC 272439703 9844661630 SPRINGS JOHN E 416 WATSON RD EFLAND INC 272439703 9844666649 ENOCH STELLA MAE HRS ETAL MILLINGTON JOYCE ANN ENOCH HRS 419 GAINES CHAPEL RD <Null> EFLAND NC 272430419 9844663643 HARVEY SUDIE <Null> <Null> 2701 GRANDVIEW AVE <Null> BLUEFIELD WV 24701 9844666547 BROWN PAULA MCKENNA COLLEEN 425 GAINES CHAPEL RD <Null> EFLAND INC 27243 9844663576 LUNSFORD CARNELLS <Null> <Null> 426 GAINES CHAPEL RD <Null> EFLAND INC 27243 9844567447 ALLISON DORIS L <Null> <Null> 419 WATSON RD <Null> EFLAND NC 27243 9844662404 PHILPOTT KRIS YVANNA PHILPOTT JONATHAN CALEB 514 WATSON RD <Null> EFLAND NC 27243 9844664404 FIELDS RICHARDA FIELDS SYLVIAC 150 ST MARKS DR STOCKBRIDGE GA 30281 9844668465 LUNSFORD CARNELLS 426 GAINS CHAPEL RD EFLAND INC 27243 9844569259 SPRINGS JOHN SPRINGS LAYONNE 416 WATSON RD EFLAND NC 272439703 9844669257 LOFTIN MAYO JANET <Null> <Null> 906-D GLENDALE AVE <Null> DURHAM NC 27701 9844666342 MCCOY'STEMPLE UHC <Null> <Null> PO BOX 428 C/O DAVID ENGLISH EFLAND INC 27243 9844661205 MOORE BILLIE 507 WATSON RD EFLAND INC 27243 9844665205 MCADOO JANNIFER C <Null> <Null> 10811 HEATHER MEADOW LANE APT 107 RALEIGH INC 27614 9844663235 ENGLISH SAMUEL E ETAL MCADOO JANNIFER E 110 HOWARD DR <Null> WILLIAMSBURG VA 23185 9844666232 CARPINUS HOLDINGS LLC <Null> <Null> <Null> 4030 WAKE FOREST RD STE 349 RALEIGH INC 27609 9844663195 MCADOO JENNIFERC <Null> <Null> 10831 HEATHER MEADOW LANE APT105 RALEIGH INC 27614 9844663047 FLORENCE THERESA A ETAL ANTHONY ROZZIE A 2412 KELLY LAKE DR <Null> DECATUR GA 30032 9844569151 SPRINGS TONY EDWARD GARNER AVOS PO BOX 412 HILLSBOROUGH NC 27278 9844661150 WATSON MICHAEL <Null> <Null> 517 WATSON RD <Null> Efland NC 27243 9844668046 TLC PROPERTIES INC <Null> <Null> <Null> 516 ENGLISH RD <Null> ROCKY MOUNT INC 27804 9844668046 TLC PROPERTIES INC <Null> <Null> <Null> 516 ENGLISH RD <Null> ROCKY MOUNT NC 27804 9844569180 JONES MICHAEL L <Null> <Null> PO BOX 92 <Null> EFLAND NC 27243 9844558537 BELL JACKIEA <Null> <Null> PO BOX 490 <Null> EFLAND NC 27243 9844559641 JOHNSON NANCY REID HRS <Null> <Null> 2011 ALTMAN RD C/O JULIUS CJOHNSON SR HILLSBOROUGH NC 27278 9844652636 JOHNSON NANCY R HRS <Null> <Null> 2011 ALTMAN RD C/O JULIUS CJOHNSON SR HILLSBOROUGH NC 27278 9844638500 SHARPE VICTOR THOMAS II SHARPE SUZANNE L P 0 BOX 247 EFLAND NC 272430247 9844750575 SHARPE EDWARD H TRUSTEE SHARPE TAMARA S TRUSTEE 3907 WEST TEN RD <Null> EFLAND NC 27243 9844754585 SHARPE JESSIE HARRIS WADE 3817 WEST TEN EFLAND INC 27243 9844651425 WILLIAMS JOLANDAZANE <Null> <Null> PO BOX 205 <Null> EFLAND NC 27243 9844653468 WILLIAMS JOLANDA ZANE <Null> <Null> PO BOX 205 <Null> EFLAND INC 27243 9844655317 WILLIAMS JOLANDA ZANE <Null> <Null> PO BOX 205 <Null> EFLAND INC 27243 9844560695 ALLISON DORIS <Null> <Null> 419 WATSON RD <Null> EFLAND NC 27243 9844765242 LOFTIN ALBERT HRS <Null> <Null> 16 TOMPKINS RD C/O KEVIN KIRKLEY EAST BRUNSWICK NJ 8816 9844761519 LOFTIN OLLA MAE SOLOMON <Null> <Null> PO BOX 672 <Null> HALIFAX NC 27839 9844775222 GORKHA INVESTMENTS GROUP LLC <Null> <Null> <Null> 305 STROMER DR <Null> CARY INC 27513 9844769992 SL EFLAND HEIRS LLC <Null> <Null> <Null> 4890 SW NATCHEZ ST <Null> TUALATIN OR 97062 9844771102 LOFTIN JAMES DET AL LOFTIN CHARLIEL 16 TOMPKINS RD C/O KEVIN KIRKLEY EAST BRUNSWICK NJ 8816 9844761930 LOFTIN MAYO PRISCILLAJANET <Null> <Null> 906 GLENDALE AVE UNIT D <Null> DURHAM NC 27707 9844766649 YAP MARIA V YAP JASPER A 211 BROOK CHASE LN <Null> DURHAM INC 27705 9844761810 WAGONER EMMA WADE HRS <Null> <Null> 7031 SAND CHERRY WAY C/O RON GADSDEN CLINTON MD 20735 9844861573 SL EFLAND HEIRS LLC <Null> <Null> <Null> 4890 SW NATCHEZ ST <Null> TUALATIN OR 97062 9844758514 SHARPE EDWARDH ETAL SHARPE VICTOR TII 3907 WEST TEN RD <Null> EFLAND NC 27243 9844778617 NORTH CAROLINA RAILROAD COMPANY <Null> <Null> <Null> 2809 HIGHWOODS BLVD <Null> RALEIGH NC 27604 9844472933 NORTH CAROLINA RAILROAD COMPANY <Null> <Null> <Null> 2809 HIGHWOODS BLVD <Null> RALEIGH NC 27604 N C 410 Variance - 429 Gaines Chapel Hill Road L--SANDERS_RD FORREST AVE w a d z J w N pR R ' E �o SOV�N d J CRp'O GAINES CNApE MgRVIN•LN 9844666445 wATSpN RD 185S140W 185N140E 2 N y9F z �2 a WEST TEN RD i N 1 in=300 feet O�E Feet Q PIN: 9844-66-6445 COUNTY a 300 Planning and Inspections Department(BC) 1,000 Foot Notification Area 4/13/2022 O:\GIS Workspace\Projects\Zoning\Variance 429 Gaines Chapel Hill Road\Variance 429 Gaines Chapel Hill Road.aprx\Mailing List 41 PLANNING & INSPECTIONS DEPARTMENT Administration 131 W. Margaret Lane (919) 245-2575 Suite 201 (919) 644-3002 (FAX) r G %�U 1��� P. O. Box 8181 www.orangecountync.gov NORTH -,,` -)L1NA Hillsborough, NC 27278 CERTIFICATION OF PUBLIC HEARING NOTIFICATION VARIANCE REQUEST —429 GAINES CHAPEL ROAD (PIN 9844-66-6445) I, Carlos Felipe Sanchez, Planning Technician, with Orange County, North Carolina, DO HEREBY CERTIFY that in accordance with the provisions of Section 2.12.6 of the Orange County Unified Development Ordinance (UDO), I have or caused notice of a HEARING for the project referenced herein as follows: 1. MAILED NOTICES: Notices giving specifics on the review of the Variance request, contact information, the dates/times/location of the public hearing including instructions on how the hearing will be conducted. a. First class mail to all property owners within 1,000 ft. ( as identified by Orange County Tax records) of the subject property on April 29, 2022. 2. SIGNS: Staff posted a sign on the subject parcel indicating the date/time of the public hearing on April 29, 2022. WITNESS my hand, this 29t" day of April 2022. Carlos Felipe Sanchez Planning Technician Orange County Planning and Inspections r AAm BOARD OFADJUSTMFNT MEETING What: Variance Request (Case # BA22-0001) 429 Gaines Chapel Road, Efland (PIN 9844-66-6445) When: May 9, 2022, 7:00 pm Where: 2nd Floor Whitted Building 300 West Tryon Street Hillsborough, NC 27278 Why: Consider Variance to Reduce the Min. Side Setback FOR MORE INFORMATION CALL THE PLANNING DEPARTMENT AT 919-245-2575 OR VISIT: https://www.orangecountync.gov/792/Planning-Inspections Attachment 4 43 wC/NI TY MAP SITE PLAN ORANGE COUNTY HEALTH DEPARTMENT CONSTRUCTION AUTHORIZATION SITE MAP solo NOR CA21-0274 PIN 9844666445 TMBL 3.35.13.9 a LOCATION: 429 GAINES CHAPEL RD OCPL OWNER: BEVERLY STOKES MAR�N�N < Existing Well-to be APPLICANT: P BY: Philip RAViOLINA laro, REHSTOM 6/29/2021ES Proposed Location of Properly Abandoned I p SITE Z New 1000 gal Septic Tank per W20-0299 0 CD w q N86 Existing Shed to remain WATSON RD 26.13' FIP rl I LEGEND CC N86• 7' 20"E 147.55' ' �°'• 'a • FIP-FOUND IRON PIN/PIPE FIP Proposed -!Step 35, EM;� Porch 679, 1 w I p CALCULATED POINT House - CC CONTROL CORNER Shed f{OUSe Step I U to o GPIN GRID PARCEL ID NUMBER Existing Impervious surfaces: �t0 be WM WATER METER Mn � EM ELECTRICAL METER House 1152 SF W I� _ ______6__0._9_'__�__ -+� removed) W Slab 22 SF Z - Sidewalk Fo Z OT OIL TANK Steps 31 SF a M R6m�e`;o• .•�• 5�� �Ipe L N ST SEPTIC TANK Porch 166 SF LV vi 'Slab © I R/W RIGHT OF WAY Sidewalk 95 SF Q _ OT •Fbrc�i j-3_ _ C/L CENTERLINE OF ROAD Sheds/Ramp 458 SF O _ _ _ he ' L > °c3Y EOP EDGE OF PAVEMENT Conc. slab 22 SF h W w � �K LINe �•' `r 10� POWER POLE well 3 SF oo .SE..fBA_ �. Q o Oil Tanks 32 SF co v 'o 0.50 J ,_2, EM 2 •'� `� '_ 'Stepp o c _ ti SF es Existing Septic Tank to be abandoned Z within f tiV�' ST Total Existing 1983 SF __ __ Existing Drainfield- Propos flagged ed Impervious surfaces: pink on site .s�� 0 3, — SEPTIC ENCROACHMENT House 1104 SF Old �-��� Line _'�' __ _ AREA TO DUKE ENERGY R/W R/�' FIP CC 173.58' PER BK 6730 P 1351-1358 Eop � � � � sss•27' 02= C/L pVMT WATSON ROAD I Proposed Location of (45' new 3" or 4" Soh 40 =R E L I A N T Supply line-to be R/W Proposed Location of sheathed in ductile iron I LAND SURVEY Approved Traffic Barrier pipe or equivalent-Install P.L.L.C. P-1735 OWNER OF RECORD: cleanout at drainfield I PROJECT NAME: CARO�// BEVERLY STOKES STOKES SITE PLAN ��(��'•`' •�5t'•t�i�.�� GPIN: 9844666445 RLS PROJECT No. 3253 ?• �`� �Q�• DB 6405 PG 558 SITE PLAN of the PROPERTY of :ate SEAL 9r . ZONING BEVERLY STOKES IL •r L-4482 dr R1 RURAL RESIDENTIAL at 429 GAINES CHAPEL ROAD e�� yam• ORANGE COUNTY EFLAND, NC 27243 p���s®sy�w••�t `; CHEEKS TOWNSHIP, ORANGE COUNTY �/+•®�•••n`(��.�* O SETBACKS DRAWN FOR: BEVERLY STOKES 919-560-4137 _ ?H'•µ�4>< _ STREET = 40' SURVEYED: DRAWN: 111 — 501 SIDE = 20' 12-18-2020 02-13-2021 DB 6405 PG 558 REAR - 20' DONALD 8ABELE I LICENSED SURVEYOR 1320 HAWTHORNE LANE,BURLINGTON,NC 27215 434-250-4500 Attachment 5 BK 6730 PG 1351 - 1358 (8) DOC# 30050979 This Document eRecorded: 06/28/2021 10.53.50 AM 44 �6''1\ Fee: $26.00 Tax: $0.00 Orange County, North Carolina MARK CHILTON, Register of Deeds by JAMES A. BARTOW Prepared By: Christopher G.King,Counsel,Duke Encrgy Return To: Duke Energy Carolinas,LLC Site No.: Land&Facilities Support Services ST30C Land Unit No.: P.O.Box 1007 Project No.: Charlotte,N.C.28201 STATE OF NORTH CAROLINA COUNTY OF ORANGE ENCROACHMENT AGREEMENT J I� THIS ENCROACHMENT AGREEMENT ("Agreement"), made this day of ,2021("Effective Date")by and between DUKE ENERGY CAROLINAS,LLC,a North Carolina limited liability company("Grantor"),and Beverly Allison Strokes("Grantee"). o Grantor owns an easement and right of way of sixty feet(60')in total width(the "Easement Area")pursuant to that certain document recorded in Deed Book 62 at Page 582 in the Office of Register of Deeds for Orange County (the"Easement Document")that permits the construction, operation, and maintenance of electric facilities ("Facilities") on certain property located in Orange County, North Carolina; o Grantee has placed(or caused to be placed)a septic tank and drain line within the Easement Area and desires authority to encroach upon a portion of the Easement Area for the purposes described herein, and Grantor is willing to permit those encroachments under the terms and conditions of this Agreement. NOW,THEREFORE,Grantor for and in consideration of the sum of Ten and No/100 Dollars($10.00)and other valuable consideration to it paid by Grantee,the receipt and sufficiency of which are hereby acknowledged, does hereby grant unto Grantee, the non-perpetual right to encroach upon the portion of the Easement Area described herein pursuant to the following terms and conditions: 1. Permitted Encroachments. Grantor agrees to allow Grantee to encroach upon the Easement Area to have and maintain a septic tank and drain line in the Easement Area,to access the septic tank and field across the Easement Area(ingress and egress)in order to perform maintenance and repair on the system as needed, and to install and maintain a fence or similar barrier as directed by Orange County Environmental Health to avoid Grantor's vehicles driving over the septic tank or field, over that certain portion of the Easement Area described as follows(whether one or more,collectively and individually the"Permitted Encroachment"): All that certain tract, piece, parcel or lot of land being more particularly shown as"Encroachment Area,"on a plat of survey entitled"Stokes Site Plan,"dated December 18,2020(the"Plat")with the following metes and bounds description: 1 Rev.2019 submitted electronically by "Duke Energy" in compliance with North Carolina statutes governing recordable documents and the terms of the submitter agreement with the orange County Register of Deeds. submitted electronically by "Duke Energy" in compliance with North Carolina statutes governing recordable documents and the terms of the submitter agreement with the orange County Register of Deeds. BK 6730 PG 1352 DOC# 30050979 45 Beginning at a point within the Gaines Chapel Road right of way as shown on Exhibit A (said point being a distance of 40.01 feet from the center line of Gaines Chapel Road at a bearing of North 87 degrees 32' 36" West), thence North 80 degrees 24' 35" West 94.09 feet to a point; thence North 1 degree 00' 00" East 68.77 feet to a point; thence South 80 degrees 24' 35" East 94.14 feet to a point; thence South 1 degree 02' 42" West 68.76 feet to the point and place of beginning. The Plat is attached hereto as Exhibit A and incorporated herein by reference. 2. Alterations. The Permitted Encroachment must be constructed as directed by the permit issued by Orange County and in strict compliance with the locations shown on the Plat. No alterations from the Plat may be made during or after the construction of the Permitted Encroachment, other than to make the Permitted Encroachment take up less of a footprint within the designated areas on the Plat. Compliance with the Plat and these limitations on alterations are necessary and essential to render Grantee's use of Easement Area consistent with the safe, reliable, and efficient construction, operation, and maintenance of the existing and future Facilities located on the Easement Area. 3. Reaffirmation. Notwithstanding anything to the contrary herein, by executing this Agreement the parties reaffirm the terms of the Easement Document and acknowledge that this Agreement does not permanently alter, limit, or amend those terms. This Agreement only identifies the Permitted Encroachment as non-hostile and permits them to remain pursuant to the terms of this Agreement. This Agreement does not constitute a transfer of an interest in land or Grantor's rights granted in the Easement Document. 4. Wetlands and Vegetation. The Easement Area may not be used by Grantee to satisfy wetland mitigation requirements. Grantee shall not plant any trees or shrubbery in the Easement Area without prior written approval from Grantor. 5. Grantor Free From Liability. Grantor shall not be liable for any damages to the Permitted Encroachment resulting from Grantor's use of the Easement Area, nor for any damage to landscaping, driveways, or irrigation systems that may result from Grantor's access to the Easement Area. 6. Additional Consent May Be Required. Grantor makes no warranties or representations as to Grantee's contemplated use of the Easement Area, and in no way shall be deemed to have consented to such use on behalf of the owner of the property on which the Easement Area exists. Grantee acknowledges that Grantor's entering into this Agreement does not, by itself, grant any rights to Grantee to use any portion of the Easement Area, and that the consent of other parties (including, without limitation, the owner of the property and any mortgagee of such owner) may be required for Grantee to obtain any rights over the property encumbered by the Easement Area. 2 Rev.2019 BK 6730 PG 1353 DOC# 30050979 46 7. Grantee's Sole Risk and Expense. Grantee acknowledges that the use of the Easement Area shall be at Grantee's sole risk and expense. Grantor shall in no way be liable to Grantee for any costs, expenses, losses, damages, or liabilities incurred by Grantee's use of the Easement Area. Grantee shall defend, indemnify, and hold harmless Grantor, its affiliates, subsidiaries, members, managers, officers, agents, employees, successors and assigns(collectively,"Grantor Parties"),from and against any and all claims, actions, costs, expenses, losses, damage, destruction, and liabilities incurred by Grantor Parties relating, directly or indirectly, to Grantee's use of the Easement Area even if caused in whole or in part by the negligence of Grantor Parties but excluding the willful or intentional misconduct of Grantor's Parties. Grantee's indemnity obligations shall survive the termination of this Agreement. All of Grantee's operations, activities, and equipment used within the Easement Area or in proximity to any of the Facilities shall, at all times, be in strict compliance with applicable provisions of the National Electrical Safety Code (NESC), the Occupational Safety and Health Act of 1971 (OSHA), and the OSHA Crane Construction Standards For Power Line Safety, Sections 1926.1408 & .1409. Grantee is further notified and hereby agrees to so notify any of Grantee's employees, agents, contractors, representatives, or other persons engaging in Grantee's activities upon the Easement Area with Grantee's knowledge and under Grantee's supervision or control, that extreme caution is necessary around the Facilities, and in the event of any damages or injuries, Grantee shall immediately report the nature and extent thereof to Grantor's nearest local office or corporate toll free number. Grantee shall not use any equipment within the Easement Area that is capable of extending over twelve (12) feet in height above natural ground surface level without prior written approval from Grantor unless an observer, approved by Grantor, is present during the use. Grantee shall bear all costs associated with the observer. 8. Transferability. The rights granted and retained under this Agreement shall inure to the benefit of the heirs, successors, and assigns of the parties, and shall run with the land. 9. Notice. Any notices and other communications required under this Agreement or relating hereto shall be in writing and delivered via personal delivery, certified United States mail (return receipt requested), or overnight delivery through a reputable carrier to: Grantor: Duke Energy Carolinas, LLC Attn: Transmission Asset Protection Grantee: Beverly Stokes 429 Gaines Chapel Rd. Efland, NC 27243 3 Rev.2019 BK 6730 PG 1354 DOC# 30050979 47 10. Termination. This Agreement shall terminate, or may be terminated in the following instances. a. If Grantee breaches any provision of this Agreement then Grantor may terminate this Agreement with written notice to Grantee, provided that Grantee shall have the right to cure the breach within 180 days of written notice. b. If Grantee removes or reduces the size of any Permitted Encroachment it shall not be entitled to restore or expand the Permitted Encroachment to its original size as shown on the Plat. If the Permitted Encroachment is removed in full then this Agreement shall automatically terminate. Should the Permitted Encroachment no longer be required for the home on the property (including but not limited to the home being removed, public sewer becoming available, or an alternate location for the Permitted Encroachment becoming available outside of the Easement Area), this Agreement shall be terminable by Duke Energy upon ninety (90) days written notice of Duke Energy's desire to terminate. This subsection shall not be construed to limit Grantee's ability to repair or replace any component of the Permitted Encroachment consistent with or pursuant to Orange County Health Department regulations. 11. Recitals. The recitals set forth at the opening of this Agreement are incorporated herein as if fully restated in this Section 11. 12. Law and Venue. This Agreement shall be governed by the laws of the state of North Carolina without regard to the conflicts of law provisions therein. The parties agree that the proper venue for any dispute related to this agreement are the state or federal courts located in Mecklenburg County, and the parties hereby submit to the jurisdiction thereof. 13. Entire Agreement. This Agreement contains the complete understanding of the parties and shall supersede any prior and contemporaneous communications, agreements, and assurances related to the subject matter of this Agreement. Any modification of this Agreement must be agreed to in writing and signed by the parties. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together shall constitute but one and the same Agreement. 14. No Waiver. The failure of Grantor in any one or more instances to insist upon compliance with any provision or covenant herein or to exercise any right or privilege herein shall not constitute or be construed as a waiver of such or any similar provision or covenant. 15. Severability. If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability. All other terms of this Agreement shall remain in full force and effect. To the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. 4 Rev.2019 BK 6730 PG 1355 DOC# 30050979 48 16. Cost Recovery. In any litigation related to this Agreement, the substantially prevailing party shall be entitled to recover that party's reasonable costs, including attorneys' fees. [Signatures Begin on Following Page] 5 Rev.2019 BK 6730 PG 1356 DOC# 30050979 49 IN WITNESS WHEREOF, the parties hereby have affixed their games under seal by their duly authorized officers the day and year first above written. GRANTOR DUKE ENERGY CAROLINAS,LLC (SEAL) a North Carolina limited liability company By: (SEAL) Name:Martha Purser Title: Manager, Land Services II STATE OF CAROLINA COUNTY OF I certify that the following person(s), Martha Purser as the Manager, band Services II, personally appeared before me this day, each acknowledging to me that he signed the foregoing Encroachment Agreement in the capacity indicated. Date: Notary Public My Commission Expires: 1 [SEAL) k3 a°c%0 Pubk • SW.of South c.06M y . 'y' Rev.2019 BK 6730 PG 1357 DOC# 30050979 50 IN WITNESS WHEREOF, the parties hereby have affixed their names under seal the day and year first above written. GRANTEE (SEAL) everly,S okes A,L(. N- STATE OF NORTH CAROLINA COUNTY OF_ 0!T Me. I certify that the following person(s), &Ver`k A(Se► S'6te-s personally appeared before me this day,each acknowledging to me that he signed the foregoing Encroachment Agreement in the capacity indicated. Date: (, 2 21,>4 C�- k.S+e Notary Publ My Commission Expires: --S LSEI'f.l.+l o� ca Z , =C o �+= co Rev,2019 BK 6730 PG 1358 DOC# 30050979 51 pRo•A � FOR OgNES CHAPEL RO x �o x W \ d �NTo �, po o E fASFMfNTR I o�QrQ mall 1 o ` d NI'00'WE 125.3f' b_� W I 1 O as �( n 1 py �n 1 1 �a 1 I b i._....: zc b � a 0. Nil w WE 6577' a•? 1 Grave! —RAF Ddvewbyr rt p I st'oY 42'W1 �i63r� CIL pvAff I GAINES CHAPEL ROAD I reu' wW) SP 02'`42'W 0 M L4 tn p� 123 z w 1�,1 4 m J ;u Z [ Z r In III v GA ~ Ll THIS MAP MAY NOT BE A CERTIFIED SURVEY AND HAS NOT BEEN REVIEWED By A LOCAL GOVERNMENT AGENCY FOR COMPLIANCE WITH ANY APPLICABLE LAND DEVELOPMENT REGULATIONS AND HAS NOT BEEN REVIEWED FOR COMPLIANCE WITH RECORDING REQUIREMENTS FOR PLATS.