HomeMy WebLinkAbout1.11.23 BOA Agenda Packet -4ftNjMW_'-1
ORANGE COUNTY
NORTH CAROLINA
PLANNING and INSPECTIONS
Cy Stober,AICP,Director I cstober@orangecountync.gov 1131 W.Margaret Lane,Hillsborough,NC 272781919.245.2575
ADMINISTRATIVE MEETING AGENDA
ORANGE COUNTY BOARD OF ADJUSTMENT (BOA)
WHITTED BUILDING
300 WEST TRYON STREET
HILLSBOROUGH, NC 27278
Wednesday January 11, 2023
7:00 p.m.
1. CALL TO ORDER
2. ADMINISTER OATH TO NEW BOA MEMBER AND BOA ASSIGNMENTS
3. APPROVAL OF BOA MINUTES MAY 9, 2022 AND JULY 11, 2022
4. INTRODUCE STAFF
5. REVIEW OF BOA RULES AND PROCEDURES
6. REVIEW BOA WORK PLAN AND ANNUAL REPORT TO BOCC
7. REVIEW BOA CALENDAR
8. DISTRIBUTE SCHOOL OF GOVERNMENT MATERIALS AND CONDUCT TECHNICAL TRAINING ON
QUASI-JUDICIAL BOARDS AND OUR UDO
9. ADJOURNMENT
NOTES:
A) This is an administrative meeting with no cases or public hearings to consider.
B) UNC School of Government e-learning modules can be accessed via:
https://www.sog.unc.edu/resources/microsites/on-demand-board-training-library
Password: 2019-DEC-JUJC
Orange County Government I www.orangecountync.gov 1 929.732.82.82.
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1 MINUTES
2 BOARD OF ADJUSTMENT
3 REGULAR MEETING
4 May 9, 2022
5
6 MEMBERS PRESENT: Leon Meyers, Chair
7 Beth Bronson
8 Nathan Robinson
9 Jeff Scott
10
11 MEMBERS EXCUSED: Susan Halkiotis, Vice Chair
12
13 MEMBERS UNEXCUSED: Scott Taylor
14
15 STAFF PRESENT: Patrick Mallett, Erosion Control and Stormwater Supervisor
16 Elaina Cheek, Secretary to the Board
17 James Bryan, Staff Attorney
18
19 AGENDA ITEM 1: CALL TO ORDER
20
21 Chair Leon Meyers called the meeting to order at 7:00 p.m.
22
23 AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA
24
25 Leon Meyers: asked if there were any changes to the agenda. Pat stated the only change was the withdrawal of the
26 application.
27
28 AGENDA ITEM 3: APPROVAL OF MINUTES—October 11, 2021
29
30 Leon Meyers: asked the board if there were any questions regarding the minutes and corrections to the minutes. Leon
31 asked for a motion to approve the minutes.
32
33 MOTION made by Nathan Robinson to approve the minutes. Seconded by Beth Bronson.
34 VOTE: Unanimous
35
36 AGENDA ITEM 4: PUBLIC CHARGE
37
38 Leon Meyers: reads the public charge for those attending the meeting.
39
40 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to conduct
41 themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any time should any
42 member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending person to leave
43 the meeting until that individual regains personal control. Should decorum fail to be restored, the Chair will recess the
44 meeting until such time that a genuine commitment to this public charge is observed. All electronic devices such as cell
45 phones, pagers, and computers should please be turned off or set to silent/vibrate.
46
47 The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of local
48 regulations and State law to perform specified functions essential to the County's planning program. Action(s) taken by
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1 the board are based solely on competent, substantial, and material evidence presented during a scheduled evidentiary
2 hearing on a specific item. As detailed within Section 2.12.2 of the UDO the Board chair reserves the right to exclude
3 evidence and testimony that is deemed: `incompetent, irrelevant, immaterial, or unduly repetitious' and therefore fails to
4 reasonably address the issues before the Board of Adjustment. While it should be noted there is no time limit on the
5 presentation of evidence, the Chair asks that the presentation of evidence be consistent with established policies, rules
6 of procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties.
7
8
9 AGENDA ITEM 5: CASES
10
11 A. SUP22-0002 Special Use Permit application proposing to erect a nem.f
12 telecommunmeation facility at 3606 EdmundLatta G�Tllsborough (PIN 9877-82=
13 39W ITEM WAS WITHDRAWN FROM CONSIDERATION AT THE REQUEST OF THE
14 APPLICANT ON APRIL 27, 2022.
15
16 B. BA22-0001 — Variance application requesting a 8.4 foot reduction to the required site
17 yard setback at 429 Gaines Chapel Road, Efland (PIN 9844-66-6445)
18
19 In accordance with UDO Sections 2.10 Variances and 3.3 Residential Districts, the
20 property owners have submitted this variance request for their parcel of property, which is
21 further described as follows:
22 • Orange County Parcel Identification Number: 9844-66-6445
23 • Acreage: 0.5 acres
24 • Zoning District: Rural Residential
25 • Watershed Designation: Upper Eno Protected
26
27 The applicants are requesting an 8.4 foot variance from the normally required 20 foot side
28 yard setback. If approved, a structure will be allowed to be 11.6 feet from the side property
29 line versus the typically required 20 foot side yard setback per Section 3.3 of the UDO.
30
31 The applicants argue the due to the existing power line easement, septic, and well areas,
32 the proposed new home cannot be located and constructed to meet the easement setback
33 and the side yard setback. In addition, the existing home located onsite does not meet the
34 existing side yard setback.
35
36 Leon Meyers: asks Patrick Mallett to present a summary of the case.
37
38 Patrick Mallett: explains his role in the Orange County planning department as the Erosion Control Supervisor and
39 previously in the Current planning role. He explains the variance application for the setback requirements. In the
40 abstract you will see the applicant is Beverly Stokes, who is in attendance. She is seeking a variance for this parcel.
41 She is seeking a reduction in the minimum of 20 foot side setbacks. If granted the variance, you would be allowing her
42 to rebuild up to the 11.6 feet away from the property line. This is parallel to an existing structure. This is the staff
43 determination that this is consistent with what is required in terms of the application. We will go over the finding of facts
44 at the end. This is the zoning report and site assessment giving an overview of the property. This is the existing home
45 here. This is the accessory structure here. The condition of this building, it's in ill-repair. It is just not cost effective to
46 refurbish that structure. Here is the notification letter inviting residents to this meeting. This is the site plan, this is the
47 most relevant piece to talk from. Going through here is the transmission easement. You have also got septic systems
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1 that need to be reworked and or abandoned. You can see the foot print of the existing house. We can go to what is
2 there today, it is slightly in a different configuration. As you can see here, there is no wiggle room left. Once you add all
3 the easements and all the other variables at play. This is the encroachment agreement. Ms. Stokes may want to talk
4 about this. It sounds like to me that part of the case was that I don't know if her family members were fully cogitative of
5 what that implied in terms of giving a power easement and the purpose of the addition on the property and it would run
6 through your grandmother's house. This is the sign that was posted on the property. This is the house that is in ill
7 repair. Picture of the side yard and between the dwelling and the adjacent property. This is the power line, you can see
8 it is literally running on top of the existing house and accessory structure. This is the side yard and where the septic
9 system is that needs to be reworked. This is the transmission line and as you can see this is a large line. So we can
10 handle this any way you would like. If you have any questions.
11
12 Patrick Mallett and Beverly Stokes are sworn in.
13
14 Leon Meyers: Does anyone have questions for Patrick?
15
16 Nathan Robinson: asked about the yellow box and is there a reason why it can't be pushed more towards Gaines
17 Chapel Road.
18
19 Patrick Mallett: Part of it is they are going to try to utilize the sidewalk and the portion of the porch on the front of the
20 house. Not necessarily the entire house would be demolished.
21
22 Leon Meyers: stated the red line is a 40 foot setback from the street so if you move closer to the street add another
23 variance.
24
25 Patrick Mallett: yes you can't move it but so far.
26
27 Nathan Robinson: so if you slide it to Gaines Chapel road it would give it 20 feet.
28
29 Patrick Mallett: No, not without a variance.
30
31 Beth Bronson: Where the house is? The proposed house?
32
33 Patrick Mallett: The Stokes house is yellow, the existing house follows this footprint
34
35 Beth Bronson: So it was already encroaching?
36
37 Patrick Mallett: They want to put a new house and tear down the house that is already 11 feet away from the property
38 line and put a comparable house in the same relative configuration.
39
40 Beth Bronson: I just want to clarify, if the parcel is already granted an easement because the house was encroached
41 when the line was placed, why would that easement not carry through to any new construction?
42
43 Patrick Mallett: This house is so old that it predates the ordinance
44
45 Beverly Stokes: The house is 100 years old.
46
47 Beth Bronson: So I would say the lines were placed afterwards
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1 Beverly Stokes: The way I saw and research, the property was purchased before the power lines came in. The power
2 lines came in in 1910. And the house and all the land was purchased in 1907.
3
4 Beth Bronson: So it has been there since 1910.
5
6 Patrick Mallett: Yes, a long time.
7
8 Leon Meyers: Any other questions for Patrick
9
10 Jeff Scott: Is the hatch door on this plan, is that the leach proposed for this or is that just the outline of the setbacks with
11 the easement in it?
12
13 Patrick Mallett: I believe that is the drainage area for the septic system if I am not mistaken. The area in blue.
14
15 Leon Meyers: This map is from Environmental Health so it may have some significance for Environmental Health
16 purposes.
17
18 Patrick Mallett: So this area all of this colored area, is needed in terms of abandoning and reconfiguring the septic
19 system with the exception, this colored area. Generally represents either a well or a septic or reconfiguration of the old
20 septic system to make it work.
21
22 Leon Meyer: Are there any questions? My question has to do with the easement on this map. The easement is called
23 out at 68 foot width and the easement itself refers to a 60 foot width. Do you happen to know how that discrepancy
24 happened?
25
26 Patrick Mallett: I do not.
27
28 Leon Meyers: I said easement but I meant the encroachment agreement.
29
30 Beth Bronson: yeah. You said easement but it was the encroachment agreement. It was from 2020.
31
32 Leon Meyers: 2021
33
34 Patrick Mallett: That might have been an error on their part in terms of referring to the width.
35
36 Leon Meyers: I can ask Ms. Stokes about that as well. At this moment, if there are no other questions for Patrick. Ms.
37 Stokes if you would come forward please.
38
39 Nathan Robinson: Where did you see the 60 foot easement?
40
41 Leon Meyers: In the first paragraph in the encroachment agreement.
42
43 Patrick Mallett: Speaks with Ms. Stokes about his reference in the encroachment agreement stating it says 68 feet. But
44 in the agreement I just had up it refers to 60 feet.
45
46 Nathan Robinson: Which would get you 8 more feet, 4 feet on each side.
47
48 Beth Bronson: Yeah 60 feet was the total width.
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1 Leon Meyers: I am not sure if that makes a difference because if the center of the easement is in the right place then
2 they really just need 4 feet of space on either side you care about and you would still be here for a variance even if the
3 easement were 60 feet. I am just curious as to why the surveyor would show the easement one width and the attorneys
4 who drew the encroachment agreement would draw another one. It is really a curiosity at this point. Ms. Stokes before
5 you make your presentation tonight, I am going to make you aware of the fact that there are 4 members of a 5 member
6 board here tonight. I hope someone has seen to that already. The significance to that is that the state statue and the
7 zoning ordinance require 4 votes for an approval of a variance to a zoning ordinance and there are 4 of us here tonight.
8 And in other circumstances there would be 5 members, so what that means is that if you would like to proceed with the
9 case a unanimous vote would be required for approval of a variance. And I have no way of knowing what every board
10 member are thinking. It would be an option for you to request for the board to delay hearing this matter if that is what
11 you prefer.
12
13 Beverly Stokes: I would not like to delay anymore. I have been in this process for over 3 years trying to redo a house
14 that needs some repairs. It is better for me to rebuild.
15
16 Leon Meyers: I certainly understand. I am going to apologize for not being in full force as a board. We had a resignation
17 as of today which was the 5t" person otherwise would have been here tonight.
18
19 Beverly Stokes: We are in question about it shouldn't effect anyone because of that wooded area and then ask the
20 people who are on that strip, I keep it cleaned off so I don't think it would affect anybody. That's the reason I'm asking
21 for this permit. It doesn't affect the environment or anything like that. The encroachment with the power company has
22 caused me to have to be here. They've taken the majority of that land and only allowed me 1,201 square feet out of
23 half an acre of land. I am asking because I don't think it would be an imposition on anybody's plat.
24
25 Leon Meyers: Just to be clear, you said no others have contacted you since it was posted?
26
27 Pat Mallett: I think there have been a few, I'm not sure if the folks here are the same neighbors who called with general
28 questions but nothing negative. I'll note on this, I think this may be a mistake, the reference to 60 feet. You go back to
29 the legal description, it says 68 feet. It's odd to see a 68 foot easement as opposed to the standard 60.
30
31 Leon Meyers: Ms. Stokes, do you have anything else you'd like to tell the Board members or have any questions. 1
32 want to be sure you have a chance to say what you want to say.
33
34 Beverly Stokes: I really don't because I am just worried. My business complaint and argument is with the power
35 company for taking so much and if you go and look at it, they did it along their wires and as far as I'm concerned, they
36 can go and straighten them up and I could have what I need to do. Doing my research, I didn't see when grounds
37 found for encroachment and that angers me just to have to come here and ask for 8'/2 feet is a little much. It's wooded
38 area and I don't think it would be a problem and I think that when they moved the divide, years ago, it just didn't come
39 out the straight way and according to where I live, the lot that's beside me, my grandfather owned that and it they split
40 the acre and the house is right there on the line and back then they just didn't know what they were doing. I think that's
41 the big issue here and as a child, I remember they used all of that property back there, they had outhouses, pig pens
42 and things of that nature but I was so young, I don't even remember my grandfather but I do remember them using all
43 of the property and even on the side where the side property is, that was garden area. That I do remember, I just want
44 8'/2 feet. The reason I have this property, I was the grandchild that stayed there the most with my grandmother, aunt
45 and cousin and they took care of the property and my oldest uncle took care of them but they always took care of the
46 property and I stayed with my grandmother the most. I hate to tear the house down because I so many memories,
47 good memories of being in this house but I have put so much money in it trying to refurbish and every time I turn
48 around, it's something else that's wrong. I've tried to, the last ditch effort was to jack the house up and have the floors
49 repaired, just for the floors and jacking it up was going to costs more than $1,000. That's a lot of money, that's not to
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1 do any of the electricity the plumbing or any of those things. I am the grandchild that wants to keep this property in the
2 family.
3
4 Leon Meyers: Members of the Board do you have any questions for Ms. Stokes?
5
6 Beth Bronson: Where there any other site plans that may have encroached on the encroachment, another direction, is
7 the only plan given impacts the power utility.
8
9 Beverly Stokes: Basically, this is the only way I can go because that's 'Y2 acre and I'm only allowed 1,201 square feet to
10 use so therefore the setbacks and all that is included. It's a tiny house now because I can't get even, Duke Energy
11 wouldn't let me get the same footprint that the house is on now. They didn't allow that because the wires come
12 basically the tip of the house so I think you have to be 62 feet from the wires, so 32 on the side or something of that
13 nature of the wires.
14
15 Beth Bronson: So they are basically saying you cannot encroach on the new development on this encroachment
16 agreement.
17
18 Pat Mallett: They don't want any structures
19
20 Beverly Stokes: They don't want any structures, if I leave that, I can refurbish it but if I tear it down, I can't go back on
21 them. So I want to refurbish this if I can. That's my hope to refurbish but I am not going to live in that small structure
22 but I'm going to live the bigger house. This is going to be like a shelter structure maybe a garage or something of that
23 nature. Because I don't have any other place to park my car so I need to think about parking my car so if I leave that
24 structure and just rebuild the line that to take the
25
26 Beth Bronson: Yeah, right, to fix it up right. I just didn't understand. I didn't know if you had approached Duke Energy
27 about a site plan that might encroach or might go over the same footprint of the house and that was approved or
28 denied.
29
30 Beverly Stokes: They wouldn't let me do anything, I did approach them, when I first started, I asked the County, the
31 County had no problems, this was years ago. I don't know if the changes or somebody else, they said they had no
32 problems because the footprint would stay the same just in the same area. Duke Energy said no. They did allow and
33 then I brought to them the fact that the house had been there many years, it has to have some type of maintenance to
34 be able to live in the house and at the time my mother was still living with me and she was 90 years and people can't
35 live in what the house is like now. They have taken all this land on the side where we could have at least moved over
36 some but they wouldn't allow that but they have allowed me to use that that blue area where the septic goes, I can put a
37 new septic tank there. That is the only thing that they are letting.
38
39 Pat Mallett: I just want to add 2 things, 1, utility power companies are generally obsessive about not having any
40 structures or obstructions so that they can go through and maintain their transmission easements. This is also done
41 and recorded at a time when, this lot predates zoning, predates everything, subdivision. There was going back to the
42 70s, 80s I believe you could do a 'Y2 acre lot and that opportunity doesn't exist so you couldn't create lot of this size and
43 configuration today. It's what we call a non-conforming lot but what she's seeking relief from is not that, it's the side set-
44 back one variance.
45
46 Leon Meyers: Any further questions.
47
48 Beth Bronson: No, thank you for answering the questions.
49
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1 Nathan Robinson: Patrick, I see that there's a road, are we concerned about the road? Is the proposed location of a
2 traffic barrier is it related to us or are we concerned about anything other than 6 ft.?
3
4 Pat Mallett: I think that is something that Reliant is working through for
5
6 Overlapping conversations
7
8 Leon Meyers: I believe that traffic barriers need to protect the green field area so you can't drive onto the green field.
9
10 Pat Mallett: And crush the lines.
11
12 Beverly Stokes: It's a little fence, you can just stay off of it and not drive across it.
13
14 Pat Mallett: That's an Environmental Health thing. In addition to this, there are other layers that have to be dealt with
15 building permits, demolition permit for the existing house, and then completing the process with the finalization of the
16 rework for the well and septic.
17
18 Beth Bronson: It's a very small area to work with.
19
20 Leon Meyers: Before this comes back to the Board for a decision and the steps, do you have anything more or is there
21 anything you'd like to tell the Board?
22
23 Beverly Stokes: I don't think I have anything else that is pertinent right now. What they are asking for in order for the
24 builders to be in compliance is that you allow that 8 '/2 feet of space and it's wooded area and nobody is using that
25 particular piece of property.
26
27 Leon Meyers: I'm going to say a little bit out of school here that I was in home building business, I would encourage
28 your builder to be very careful about where he wants the house because there is little space to spare.
29
30 Beverly Stokes: They do understand that. The builders have been very good about checking things out walking the
31 property and having it surveyed. I've had the property surveyed 3 times myself and they've had it again I think twice.
32
33 Leon Meyers: That's great. Before we close the public hearing, are there any other questions for Patrick or Ms.
34 Stokes?
35
36 Nathan Robinson: I just want to clarify the neighbors have not submitted any opposition to this request, I want to make
37 sure.
38
39 Pat Mallett: There have be inquiries but not in opposition or in favor just inquiries about what the nature of the request
40 is and that is pretty common.
41
42 Leon Meyers: If you would like to testify could you come forward and be sworn.
43
44 Eric Thompson was sworn in
45
46 Eric Thompson: I live in Mebane but the property there is on the backside of Mrs. Stoke's house, my family owns. I just
47 want to ask a question for my clarity. Approving this variance, how does that affect the property, does it subtract from
48 our property or I'm wondering exactly if it's approved how it affects my property.
49
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1 Pat Mallett: What is being considered is that location of the house on Mrs. Stoke's property. There is no modification to
2 the property line, there's no gain on her end or loss on your end or any adjacent property owners. There is no change
3 in the property boundary line. That's the whole point of this request, keep the property line intact but allow for building
4 setback which normally would go all the way down to there (demonstrated). There is no change to your property line,
5 it's comparatively speaking what you see with the house and property is the same.
6
7 Eric Thompson: Our property line actually goes all the way down to the end of her property line.
8
9 Pat Mallett: There is no change to that property line. This is the configuration of the lot lines today and configuration it
10 would be tomorrow and so on and so forth.
11
12 Eric Thompson: So no property around it will be down.
13
14 Pat Mallett: No, this is only dealing with the setback requirement for the house.
15
16 Leon Meyers: Arguably the improvement that Ms. Stokes plans to make on this parcel would have a positive impact on
17 your adjacent property.
18
19 Eric Thompson: My interest was not to prevent her, I just wanted, my interest was our property and knowing exactly
20 what is going on.
21
22 Leon Meyers: I understand thank you for coming. Are there any other questions? We will close the public hearing and
23 the matter is before the Board. Thoughts?
24
25 Beth Bronson: No, I have no questions.
26
27 Nathan Robinson: I am just looking, in Section 2.10.4, where it identifies approved variances, as I move through a, b, c,
28 d it seems this request fits the reason for approval in it. That's about it for me.
29
30 Jeff Scott: I think it was maybe a year ago but we had something, it wasn't a new construction house but it was a
31 variance for an existing, the setbacks where the wetlands area and it is pretty minor and so it's not that president that
32 we would grant something like this.
33
34 Leon Meyers: I would say the motion would be in order. James guide me here? It would need to refer to those four
35 findings in 2.2? Is that right?
36
37 James Bryan: Yeah, that's right so this would be just like any other case where you need Findings of Fact and then
38 conclusions of law. What you have here is two people testified, or really three people testified but only Pat gave
39 substantive evidence. You don't have any conflicting facts so I don't want you to, you could just that put that into the
40 motion for the record that the Board has received no conflicting evidence.
41
42 Leon Meyers: So Board, the two motions we recognize, Findings. The 4 findings related to in the UDO they're going to
43 require for a variance first and the second motion we will grant a variance, do I understand correctly?
44
45 James Bryan: First is Findings of Fact and that is just all the facts which is basically you are relying on the reports and
46 stuff like that. You don't have, there's no conflict, you don't have to go into great detail. I think the motion would be
47 something to the effect of the Board makes the Finding of Fact that there is competent substantial material evidence to
48 support its conclusions and that there is no evidence in controversy.
49
50 Leon Meyers: Anybody here to make that motion.
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1
2 MOTION made by Nathan Robinson that there evidence to support our conclusions and there is no evidence to the
3 contrary. Seconded by Beth Bronson.
4 VOTE: Unanimous
5
6 James Bryan: Second we can make conclusion based on these four, if they were to be different you could handle them
7 separately if they are all the same you can make one motion that as a conclusion that all four of there are met/not met.
8
9 Leon Meyers: Do I hear a motion to that?
10
11 MOTION made by Beth Bronson that all points of hardship have been provided and the burden of proof for all four
12 points for the reason to authorize a variance with no conflicting evidence and therefore the Board should grant the
13 variance. Seconded by Jeff Scott.
14 VOTE: Unanimous
15
16 Leon Meyers: Ms. Stokes, congratulations you're ready to build.
17
18 Beverly Stokes: Thank you.
19
20 Leon Meyers: Any other business before the Board? I want to talk about a couple of things with you James.
21
22 Pat Mallett: I think we have some training anticipated at some point and that includes books and packets and on-line
23 things.
24
25 Leon Meyers: I would say, given where we are with Board appointments maybe we want to postpone that until we have
26 something close to a full board. At Patrick's suggestion, I approached Travis Myren today about the importance of
27 taking some appointments before the Board of County Commissioners so that we don't end up with four members
28 sitting of a case that should have five. I also have an issue that on our website, at least, no one I've talked to seems to
29 actually know about this but on the website, a couple of these current seats have expired and my seat expires in a
30 couple of months and we are short on three positions because of Susan's resignation, Kent's resignation and Mr.
31 Taylor's non-participation. I would like is to ask the County Commissioners to appoint the alternates to a regular seat
32 and ask also that you have agreed to a second, three year term.
33
34 Beth Bronson: Does that change the clock for accepting a permanent position?
35
36 Leon Meyers: I don't know the answer to that but I am sure James will figure it out.
37
38 James Bryan: We can work with the Clerk's Office to figure that out.
39
40 Beth Bronson: I have no objections.
41
42 AGENDA ITEM 6: ADJOURNMENT
43
44 The meeting was adjourned at 7:45 p.m.
45
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50 LEON MEYERS,CHAIR
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DRAFT
1 MINUTES
2 BOARD OF ADJUSTMENT
3 ADMINISTRATIVE MEETING
4 July 11, 2022
5
6 MEMBERS PRESENT: Leon Meyers, Chair
7 Beth Bronson
8 Nathan Robinson
9 Jeff Scott
10 Adam Beeman
11 Roderick Jones
12
13 STAFF PRESENT: Cy Stober, Planning & Inspections Director
14 James Bryan, Staff Attorney
15 Pat Mallett, ECS&E Supervisor
16 Tina Love,Administrative Support
17
18 AGENDA ITEM 1: CALL TO ORDER
19
20 Chair Leon Meyers called the meeting to order at 7:00 p.m.
21
22 AGENDA ITEM 2: ADMINISTER OATH TO NEW BOA MEMBERS
23
24 Laura Jenson, Clerk to the Board of County Commissioners administered the Oath to the new Board of Adjustment Member
25
26 AGENDA ITEM 3: ASSIGN BOA POSITIONS
27
28 Election of Chair and Vice-Chair was postponed
29
30 AGENDA ITEM 4: INTRODUCE STAFF
31
32 Introductions were made between staff and the BOA members
33
34 AGENDA ITEM 5: REVIEW OF BOARD OF ADJUSTMENT RULES AND PROCEDURES
35
36 Staff Attorney James Bryan reviewed the BOA Rules and Procedures
37
38 AGENDA ITEM 6: DISTRIBUTE SCHOOL OF GOVERNMENT MATERIALS AND CONDUCT TECHNICAL
39 TRAINING ON QUASI-JUDICIAL BOARDS AND OUR UNIFIED DEVELOPMENT
40 ORDINANCE
41
42 Staff Attorney James Bryan gave a training presentation to the members
43
44 AGENDA ITEM 7: ADJOURNMENT
45
46 The meeting was adjourned at 8:42 p.m.
47
48
49
50 LEON MEYERS,CHAIR
13
ORANGE COUNTY
BOARD OF ADJUSTMENT (BOA)
Meeting Date: January 11, 2023
Agenda
Item No. 5
SUBJECT: Adopt updated BOA Rules of Procedure
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) No
ATTACHMENTS: INFORMATION CONTACT:
1. Updated BOA Rules of Procedure Pat Mallett, Deputy Dir. Development Services
(919) 245-2577
2. Resolution of Approval pmallett .orangecountync.gov
Tina Love
Administrative Support I
Secretary to the Board and Minutes
(919) 245-2571
tloveCcD.orangecountync.gov
PURPOSE: For the BOA to update and amend their current Rules of Procedure.
BACKGROUND: Per Section 1.8.5 of the UDO: Rules of Procedure:
"The Board shall adopt Rules of Procedure and Regulations for the conduct of its affairs. The rules
shall be maintained in the office of the Planning Director. Except as otherwise expressly stated in
this Ordinance, the rules adopted by the Board of Adjustment shall provide for:
a. Selection of officers, specifically a Chair and Vice-Chair, whose term of office shall be one
year, with eligibility for re-election.
b. Attendance requirements.
c. Establishment of a quorum, which shall be a majority of the appointed members, to allow
the Board to conduct business.
d. Establishment of a date and time for a regular meeting.
e. A procedure for calling special meetings as the need of the Board requires."
The BOA has maintained Rules of Procedure since 1968. These rules have been revised periodically to
align with legislative changes and/or update procedural matters. This most recent update as contained
within Attachment 1 revises legislative references; grammar; and specific meeting requirements to a more
flexible schedule.
RECOMMENDATION: Staff recommends that the BOA review, consider and adopt the revised Rules of
Procedure contained within Attachment 1, and Resolution contained within Attachment 2 at their January
11, 2023 meeting so it can be incorporated for the next BOA meeting.
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Attachment 1
RULES OF PROCEDURE
BOARD OF ADJUSTMENT
ORANGE COUNTY, NORTH CAROLINA
I. General Rules
Amended A. The Orange County Board of Adjustment shall be governed by the terms of
6/11/90 Art+ele-19, P aFt 3 of Chapter 153n and when effete,Chapter 160D of the
4/12/22 General Statutes of North Carolina and by the Unified Development Ordinance
of Orange County, North Carolina, adopted April 5, 2011, and as amended. All
Board members shall be thoroughly familiar with these laws.
II. Officers and Duties
Amended A. Chair
2/12/68
6/12/78 The Chair shall be elected by majority vote of the membership of the Board
6/11/90 from among its members.
4/12/22 The term of office shall be for one year, and until a successor is elected,
beginning on July 1, and the Chair shall be eligible for re-election. Subject to
these rules, the Chair shall decide upon all points of order of the Board in
session at the time.
The Chair shall appoint any committees found necessary to investigate any
matter before the Board.
Amended B. Vice Chair
6/11/90
4/12/22 A Vice Chair shall be elected by the Board from among its members in the
same manner and for the same term as the Chair. The Vice Chair shall serve
as Acting Chair in the Chair's absence, and at such times the Vice Chair shall
have the same powers and duties as the Chair.
C. Clerk to the Board
A Clerk to the Board shall be appointed by the Chair of the Board, either from
within or outside its membership, to hold office during the term of the Chair and
until a successor Clerk to the Board shall have been appointed. _The Clerk to
the Board shall be eligible for reappointment. _The Clerk to the Board acting as
clerk to the board, subject to the direction of the Chair and the Board, shall
keep all records, shall conduct all correspondence of the Board, shall arrange
for all public notices required to be given, and shall generally supervise the
clerical work of the Board. _The Clerk to the Board shall keep in a permanent
volume the minutes of every meeting of the Board. These shall be and show
the record of all important facts pertaining to each meeting and hearing, every
resolution acted upon by the Board, and all votes of members of the Board
upon any resolution or upon the final determination of any question, indicating
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the names of members absent or failing to vote. If the Clerk to the Board is
chosen from outside the membership of the Board, the Clerk to the Board shall
not be eligible to vote upon any matter. The Chair may appoint an Acting Clerk
to the Board in the Clerk to the Board's absence.
III. Alternate Members
Amended Alternate members of the Board shall attend all meetings and hearings of the
6/11/90 Board unless otherwise notified. A regular Board member, on receiving notice
4/12/22 of a meeting which he or she cannot attend or upon learning that he or she will
be unable to participate in a meeting, shall promptly give notice to the Clerk to
the Board of the Board that he or she is unable to attend or unable to
participate.
Where, because of the inability of a regular member to serve or to participate,
the attendance of an alternate member is necessary to make quorum as
defined by Section V-D below, the Chair, or any member acting as Chair, shall
designate an alternate member to have all the powers and duties of a regular
member.
IV. Members
Amended A. Membership on the Board of Adjustment shall be governed by the terms of
6/11/90 160D-302 of the General Statutes of North Carolina as well as applicable parts
4/12/22 of the Orange County Advisory Board Policy where it specifies the Board of
Adjustment.
B.—In cases where an individual is appointed to serve the unexpired portion of a
Board member's term, the appointment shall be for the time period of the
unexpired term only and shall not be counted as a regular term for that
member.
C.—All members appointed to the Board of Adjustment shall, before entering their
duties, qualify by taking an oath of office as required under NCGS 153A-26.
D. Members of the Board may be removed for cause.
E. Faithful attendance at all meetings of the Board and conscientious performance
of the duties required of members of the Board shall be considered a pre-
requisite of continuing membership on the Board.
F. No Board member shall take part in the hearing, consideration or determination
of any case in which that member is personally or financially interested.
G. No Board member shall vote on any matter deciding an application or appeal
unless that member has attended the public hearing on that application or
appeal.
H. No Board member shall discuss any case with any parties thereto prior to the
public hearing on that case; provided however, that members may receive and
seek information pertaining to the case from any other member of the Board
and its Clerk to the Board prior to the hearing.
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I. Members of the Board will not express individual opinions on the proper
judgment of any case with any parties thereto prior to its determination of that
case. Violation of this rule shall be cause for dismissal from the Board.
J. Each member of the Board shall be familiar with the applicable provisions of
the Unified Development Ordinance associated with matters before them.
Amended K. At any meeting, which an alternate member is called upon to participate within,
6/11/90 shall have the same powers and duties as regular members.
4/12/22
Amended L. , At no time shall more than five members (including alternate members)
6/11/90 officially participate or vote in any meeting or hearing.
4/12/22
V. Meetings
Amended A. Regular Meetings
6/12/78
6/11/90 Regular meetings of the Board shall be held as indicated on the published
2/3/10 Board of Adjustment Calendar on the seGend Monday of each month at 7:00
4/12/22 iT.. IR the Orange County Whitted Building HRoer iGeG Center Complex
at 300 West Tryon Street in Hillsborough, North Carolina or an alternate time or
meeting location provided that if thedlrected by the -Chair se direntc meetiRgS
may he held of any other alone/time in the GE int!i
Heve�W-when such a meeting coincides with a county or state holiday, then
the meeting shall be cancelled.
Meetings will adjourn at 10:00 p.m. unless otherwise voted upon by the Board.
B. Special Meetings
Special meetings of the Board may be called at any time by the Chair. At least
forty-eight (48) hours written notice of the time and place of special meetings
shall be given, by the Clerk to the Board or by the Chair, to each member of the
Board.
C. Cancellation of Meetings
1.For Lack of Business or Quorum —Whenever there are no appeals,
applications for exceptions or variances, or other business for the Board, or
whenever so many regular and alternate members notify the Clerk to the
Board of inability to attend that a quorum will not be available, the Clerk to
the Board may dispense with a meeting by giving written or oral notice to all
members prior to the time set for the meeting.
2. Inclement Weather or Similar Consideration Meetings may also be
canceled whenever there may be additional considerations which make a
meeting unsafe or infeasible.
Such determination may be made by the Chair upon good cause or by the
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Clerk to the Board where the cause is closure of County offices or facilities.
Upon such a cancelation, either the Chair or the Clerk to the Board may
dispense with a meeting by giving written or oral notice to all members prior
to the time set for the meeting.
Amended D. Quorum
1/11/99
4/12/22 A quorum of the Board, necessary to conduct any business of the Board shall,
consist of at least four Board members.
Amended E. Conduct of Meetings
6/11/90
4/12/22 All meetings of the Board shall be conducted in compliance with the North
Carolina Open Meetings Law, North Carolina General Statutes 143-319.9 et
seq. The Board shall give public notice of its meetings also as provided in the
Open Meetings Law. The order of business at regular meetings shall be as
follows:
a. reading of the Public Charge;
b. approval of minutes;
c. hearing of cases;
d. consideration and determination of past cases; and,
e. other business.
VI. Applications for Appeal
A. Types of Appeals
The Board shall hear and decide all appeals from and review any order,
requirement, decision, or determination made by the Planning Director. It shall
also hear and decide all matters referred to it or upon which it is required to
pass by the Unified Development Ordinance of Orange County, North Carolina.
In deciding appeals, it may hear both those based upon an allegedly improper
and erroneous interpretation of the ordinance and those based upon alleged
hardship resulting from the strict interpretation of the ordinance.
Amended B. Procedure for Filing Appeals
6/11/90
4/12/22 No appeal shall be heard by the Board unless notice thereof is filed as required
by the UDO within thirty (30) days after the decision, determination or directive
was made by the Planning Director and record of that action filed in the office
of the Planning Director. No appeal shall be considered by the Board unless a
completed application is received. All applications for hearings shall be filed
with the Clerk to the Board, or with the Planning Director, who shall act as
Clerk to the Board for the Board in receiving this notice. All applications shall
be made upon the form furnished for that purpose, and all required information
shall be provided thereon before an appeal or an application shall be
considered as having been filed.
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C. Hearings
Amended 1. Time
6/11/90
4/12/22 After receipt from the Planning Director or Clerk to the Board of the
completed notice of appeal or application, the Clerk to the Board shall
schedule a time for a hearing, which shall be heard at either a regularly
scheduled meeting or at a special meeting.
Amended 2. Notice
6/11/90
4/12/22 The Board shall give public notice of the hearing as required by the North
Carolina Open Meetings Law and as specified in the Orange County
Unified Development Ordinance.
Notices shall state the location of the building or lot, the general nature of
the question involved, and the time and place of the hearing.
3. Conduct of Hearing
Any party may appear in person or by attorney at the hearing. Witnesses
may be called and factual evidence may be submitted, but the Board shall
not be limited to consideration of such evidence as would be admissible in
a court of law. The Board may, in its discretion, view the premises and
obtain additional facts in the matter before arriving at a determination of the
case. The order of business for each hearing shall be as follows:
(a) the Chair, or such person as the Chair shall direct, shall give a
preliminary statement of the case;
(b) the applicant shall present the arguments in support of his case or
application;
(c) persons opposed to granting the application shall present the argument
against the application;
(d) both sides will be permitted to present rebuttals to opposing testimony;
(e) the Chair, or such person as the Chair shall direct, -shall summarize the
evidence which has been presented, giving the parties an opportunity to
make objections or corrections.
4. Administration of Oaths
The chair of the board or any member acting as chair and the clerk to the
board are authorized to administer oaths to witnesses in any matter coming
before the board. Any person who, while under oath during a proceeding
before the board determining a quasi-judicial matter, willfully swears falsely
is guilty of a Class 1 misdemeanor.
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5.Denial and Re-hearings
When the Board of Adj stmeRt shall have has denied an application for a
Special Use Permit, the Board of Adjustment—shall not receive another
application for the same or similar petition affecting the same property or a
portion thereof until the expiration of a one-year period, extending from the
date of denial.
An application for a rehearing may be made in the same manner as
provided for an original hearing. Evidence in support of the application shall
initially be limited to that which is necessary to enable the Board to
determine whether there has been substantial change in the facts,
evidence, or conditions in the case.
A re-hearing shall be denied by the Board if in its judgment there has been
no substantial change in the facts, evidence, or conditions in the case. If the
Board finds that there has been such a change, it shall thereupon treat the
request in the same manner as any other application.
Amended 1. Form
6/11/90
4/12/22 The Board's decisions to approve or deny any application shall be reduced
to writing in the form of an Order. Such Order shall include the reasons for
the Board's decision and signed by the Chair.
Amended 2. Voting at Hearings
6/11/90
4/12/22 Required voting on matters before the Board shall be in accordance with
applicable State statutes and the provisions of the Orange County Unified
Development Ordinance (UDO).
3. Public Record of Decisions
The minutes and orders of the Board shall be a public record, available for
inspection at all reasonable times.
VII. Amendments
Amended A. These rules may, within the limits allowed by law, be amended at any time by
6/12/78 an affirmative vote of not less than four-fifths (4/5ths) members of the Board,
4/12/22 provided that such amendment be presented in writing at a regular or special
meeting preceding the meeting at which the vote is taken.
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Attachment 2
RESOLUTION OF THE
ORANGE COUNTY BOARD OF ADJUSTMENT (BOA)
Whereas, on January 11, 223, the Orange County Board of Adjustment (BOA) met
to conduct an administrative meeting.
AND
Whereas, the BOA reviewed, considered and adopted revised BOA Rules of
Procedure.
AND
Whereas, the BOA reviewed, considered and adopted revised their BOA Annual
Report and Work Plan to the BOCC.
NOW THEREFORE BE IT RESOLVED by the Board of Adjustment hereby amends their
Rules of Procedure and forwards their Annual Report and Work Plan to the BOCC.
Upon motion of BOA Member , and seconded by BOA
Member the foregoing resolution was adopted this the 11t"
day of January 2023.
I, Tina Love, Secretary to the Board of Adjustment, HEREBY CERTIFY that the foregoing
is a true copy of so much of the proceedings of said Board at a meeting held on January
11, 2023 as relates in any way to the adoption of the foregoing and that said proceedings
are maintained by the Orange County Planning Department.
WITNESS my hand and the seal of said County, this day of 12023.
Secretary to the Board of Adjustment
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ORANGE COUNTY
BOARD OF ADJUSTMENT (BOA)
AGENDA ITEM ABSTRACT
Meeting Date: January 11, 2023
Agenda
Item No. 6
SUBJECT: Adoption of BOA Annual Report and Work Plan 2023
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) No
ATTACHMENTS: INFORMATION CONTACT:
1. BOA Annual Report and Work Plan 2023 Pat Mallett, Deputy Dir. Development Services
(919) 245-2577
2. Resolution of Approval pmallettCc)_orangecountync.gov
Tina Love
Administrative Support I
Secretary to the Board and Minutes
(919) 245-2571
tlove(o)_orangecountync.gov
PURPOSE: For the BOA to review and forward their required Annual Report and Work Plan for
2023.
BACKGROUND: The Orange County Board of County Commissioners (BOCC) requires all of the
Orange County appointed boards and commissions to file an Annual Report Work Plan with the
County Clerk every January. The BOA submittal to the Clerk is contained within Attachment 1. This
material meets the format and size limits set forth by their Clerk for all boards and commissions.
RECOMMENDATION: Staff recommends that the BOA review, consider and adopt the material and
Resolution of Approval as contained within Attachment 2 at their January 11, 2023 meeting so it can
be forwarded by Staff to the Clerk's Office no later than January 27, 2023.
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Attachment 1
NAME OF BOARD/COMMISSION: Board of Adjustment
Report Period January 2022-December 2022
ORANGE COUNTY BOARDS AND COMMISSIONS
ANNUAL REPORT/ WORK PLAN FOR THE COUNTY COMMISSIONERS
The Board of Commissioners appreciates the dedication of all the volunteers on their
boards and commissions and welcomes input from various boards and commissions
throughout the year. Please complete the following information, limited to the front and
back of this form. Other background materials may be provided as a supplement to, but
not as a substitute for, this form.
Board/Commission Name:
Board of Adjustment (BOA)
Person to address the BOCC and contact information:
Leon Meyers, BOA Chair
Imeyersnc .gmail.com 919 422-5773
3126 Carriage Trail, Hillsborough
Primary County Staff Contact:
Patrick Mallett, Deputy Director Development Services
Planning & Inspections Department
pmallettCa-)_orangecountync.gov
Office (919) 245-2577 / Mobile (919) 819-3402
How many times per month does this board/commission meet, including any
special meetings and sub-committee meetings?
One meeting per month as outlined in the published BOA Calendar.
2023 Calendars I Orange County, NC (orangecountync.gov)
Note: the BOA only meets on published dates when there is a case to be considered
and/or required administrative actions or training. Historically, the BOA has met 4-6
times per year.
Brief Statement of Board/Commission's Assigned Charge and Responsibilities.
As required by NCGS §160D-302 and Unified Development Ordinance (UDO)
Section 1.8.1, the BOA is required quasi-judicial appointed board that is established
and maintained to hear and decide:
1. Appeals regarding any decision, or determination made by the Planning Director;
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2. Applications requesting the approval of Special Use Permit (SUP);
3. Variance requests from the minimum requirements of the UDO; and
4. Other matters as required by state law, the UDO and/or the BOCC.
What are your Board/Commission's most important accomplishments?
1. Successfully deciding appeals, variances and SUPs per the state statue and
UDO requirements without any higher appeals or legal challenges.
2. Successfully meeting virtually and/or in person during the COVID crisis.
3. Adapting its rules and process to meet the new requirements of 160D-302.
4. Successfully appointing all the required and alternate BOA seats for the first time
in over 10-years.
5. Revising the applications, required materials and published calendars to make
the process simpler, quicker and more accessible to the public.
List of Specific Tasks, Events, or Functions Performed or Sponsored Annually.
N/A
Describe this board/commission's activities/accomplishments in carrying out
BOCC goal(s)/priorities, if applicable.
1. Successfully meeting state and UDO requirements for BOAs.
Describe the collaboration relationship(s) this particular board has with other
advisory boards and commissions?
1. Operationally none. The BOA is by definition an independent, autonomous
quasi-judicial decision making body.
2. Administratively, BOA's meeting needs and support is coordinated alongside the
Planning Board.
Identify any activities this board/commission expects to carry out in 2023 as they
relate to established BOCC goals and priorities. If applicable, is there a fiscal
impact (i.e., funding, staff time, and other resources) associated with these
proposed activities (please list).
1. Continuing to improve the process and public information about the BOA.
2. Minimize addition Staff and funding needs to the extent legally possible (e.g.
streamlining the review process and legal notification processes).
What are the concerns or emerging issues your board has identified for the
upcoming year that it plans to address, or wishes to bring to the Commissioners'
attention?
1. Continuing to meet the requirements caused by NCGS §160D-302.
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Attachment 2
RESOLUTION OF THE
ORANGE COUNTY BOARD OF ADJUSTMENT (BOA)
Whereas, on January 11, 223, the Orange County Board of Adjustment (BOA) met
to conduct an administrative meeting.
AND
Whereas, the BOA reviewed, considered and adopted revised BOA Rules of
Procedure.
AND
Whereas, the BOA reviewed, considered and adopted revised their BOA Annual
Report and Work Plan to the BOCC.
NOW THEREFORE BE IT RESOLVED by the Board of Adjustment hereby amends their
Rules of Procedure and forwards their Annual Report and Work Plan to the BOCC.
Upon motion of BOA Member , and seconded by BOA
Member the foregoing resolution was adopted this the 11t"
day of January 2023.
I, Tina Love, Secretary to the Board of Adjustment, HEREBY CERTIFY that the foregoing
is a true copy of so much of the proceedings of said Board at a meeting held on January
11, 2023 as relates in any way to the adoption of the foregoing and that said proceedings
are maintained by the Orange County Planning Department.
WITNESS my hand and the seal of said County, this day of 12023.
Secretary to the Board of Adjustment