HomeMy WebLinkAboutAgenda - 10-21-2008 - 4nORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: October 21, 2008
Action Agenda
Item No. ~~~
SUBJECT: Zoning Ordinance Amendment: Sections 6.20 and 6.20.1 to Address Approval
Requirements for County Projects Using Large Ground Absorption Systems
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) ~~
ATTACHMENT(S):
1. Table of Contents
2. Proposed Ordinance Amendment
(Text Additions are in Underlined Text
and Deletions are in Strike-through
Text)
3. County Attorney Letter - Outlining
Issues Associated with the County
Issuing Itself an SUP and Relevanl
Court Cases
4. JPA Review Comments from the
Towns of Carrboro and Chapel Hill
5. May 19, 2008 Quarterly Public Hearing
Minutes
6. Planning Board Minutes -July 9 and
September 3, 2008
INFORMATION CONTACT:
Craig Benedict 245-2592
Michael D. Harvey 245-2607
PURPOSE: To take action on a proposed amendment to Article Six (6) Application of
Dimensional Requirements, specifically Section 6.20 and 6.20.1 Large Ground Absorption
System (3,000 gallons per day) and Package Treatment Plants Prohibited in AR Districts
and Rural Buffer Districts of the Orange County Zoning Ordinance (hereafter `Ordinance').
BACKGROUND: This item was heard at the May 19, 2008 Quarterly Public Hearing and
discussed at the July 9 and September 3, 2008 Planning Board meetings. The amendment
relates to the process Orange County projects are required to follow if proposing a large ground
absorption system. Originally all applicants were required to submit to a Special Use Permit
(SUP) process. However, the attorney's office notes case law preventing this review system for
County projects. Therefore, County projects with large ground absorption systems are
proposed to be permitted by right with the associated review process in Article 14 of the Zoning
Ordinance.
At the July 9, 2008 Planning Board meeting, the Board requested the following additional
information on this proposed amendment:
a
1. The Board wanted to review the court case, cited by the Attorney's office, that was the
basis for suggestion the amendment in the first place.
Staff Note -Please refer to Attachment Three (3) for this information
2. The Board wanted more time to review the possible ramifications of the proposed
amendment on limiting the amount of public comment that occurs on County projects
using Large Ground Absorption Systems.
Upon receipt of the requested information, the Planning Board determined that the amendment
was necessary to address identified legal issues associated with the County issuing itself a
SUP, specifically:
1. Recent court cases have questioned the legal ability of a governing body to issue itself a
SUP as there is a concern over the ability of the members to make an unbiased decision
on the evidence presented at the quasi judicial hearing,
2. The two (2) boards that are responsible for reviewing and approving SUP projects are
open to criticism on their ability to conduct a fair hearing and render an impartial decision
due to the County, or a County department, being the applicant,
PLANNING BOARD RECOMMENDATION: The Planning Board voted unanimously at its
September 3, 2008 meeting to recommend approval of the proposed amendment.
In addition, the Planning Board requested a comprehensive set of rules and procedures be
established for County projects using Large Ground Absorption Systems (see Minutes in
Attachment 6).
FINANCIAL IMPACT: The Ordinance amendment has been reviewed by various County
departments who have determined its approval will not create the need for additional funding.
RECOMMENDATION(S): The Administration recommends the Board:
1. Receive the Planning Board recommendation,
2. Close the Public Hearing, and
3. Take action to approve the amendment.
4. Direct the Planning Board to add to its work plan for the coming year (to be reviewed by
the BOCC) the aforementioned development of a comprehensive set of rules and
procedures for County projects using Large Ground Absorption Systems.
~.~{acllm.e~, ~..1.
3
AGENDA ITEM ~ ~ n ;
REVIEW of AMENDMENT of Section 6.20 and fi,20.1 of the Orange
County Zoning Ordinance to address approval requirements for
County projects using Large Ground Absorption Systems
TABLE OF CONTENTS:
Attachment Two (2} -- Proposed Ordinance Amendment:
Attachment Three (3) -Letter from Attorney
Attachment Four (4) -Responses from Town(s) of
Chapel Hili and Carrboro on proposal:
Attachment Five (5) -May 19, 2408 Quarterly Public Hearing
Minutes
Attachment Six (6) -July 9 and September 3, 2008 Planning
Board Minutes
Pages 4 through 5
Pages 6 through 18
Pages 19 through 23
i
Pages 24 through 26
Pages 27 through 34
~kFkvw+lcnt 2
AMENDMENTS TO THE
ORANGE COUNTY ZONING ORDINANCE
(Only those sections or subsections amended are set out below}
BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF ORANGE
COUNTY, NORTH CAROLINA, hereby amends the Orange County Zoning
Ordinance by adding (indicated by underlined language) and deleting (indicated
by stricken through language) as follows:
Proposed Amendment: Part I
That Section 6.20.1 be amended as follows:
* 6.20 Large Ground Absorption System (3.000 gals. per
d y) and Package Sewas~e Treatment Plants
* Amended Prohibited in AR Districts and Rural Buffer
Districts: Exceptions
1
*8.20.1 Ground absorption systems with a design capacity of
3,000 gallons per day,, or more, and package treatment
* Amended plants systems for sanitary sewage disposal,, other than
those to be used for Orange County government
4!4/1988 facilities and Orange County govemment ofFice
~ ~ buildings, are expressly prohibited in the ~
Agricultural Residential AR} Zoning dDistricts and in
the Rural Buffer (RB) Zoning Districts
except as may be
approved through a Special Use Permit as provided in
Article Eight (8) and Section 8.8.3 and/or as may be
approved as part of a Planned Development District.
All such systems, including those to be used for
Orange County government facilities and Orange
County government offrce buildings, shall meet all
State and Orange County Health laws, .rules and
regulations.
5
Upon motion of Commissioner ,
seconded by Commissioner ,the
foregoing Zoning Ordinance amendments were adopted this the day
of , 2008 and shall become effective upon adoption.
Donna Baker, Clerk, Orange County Commissioners
achment Three (3): County Attorney letter -Outlining issues ~-
ssociated with the County issuing itseff a SUP and relevant court
ases
~~, GI~HILL, HAItG1ZAVE & PEEK
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VI.~ FACSIl.y~ILE
March 13, 2UU8
iV1r. Craig Benedict, Planning' Director
Orange Commty Planning Deparkrient
P.O. Box 8181
Hillsborough, I3C 27278
Re: Response To Solid Waste Management Facility Location Issues
Dear Craig.
BAOlc7H8l~'SKOF
sxtnri m. ~.t,
Geof and I have reviewed xhe document prepaxed by your office titled, "Solid Waste
Management Facility I-or~atian Issues" (the "Platuiing Analysis"). The Planning Analysis
identifieas six (~ planning alternatives available to the Cowtty t-elated tg the zoning approval of a
County solid waste trausfi~r facility ("SWTF"~ within Orange County. This letter rontaitss our
response to the Platznuing Analysis.
'VV'e would be in general agreemeat with the alternatives contained within the Planning
Analysis if Orange County was not the applicant for the SWTI+. However, there is an important
distinction in the zoning regulations applicable to a private entity locating a SWTF, or other solid
waste daspasal facgity, within the Count3-, atul the County looting that same facility. The
distinction is baser3 on the fact that the government, izz .this case, the Comity, is and always will
be accountable to its citizens in its'decisions regarding the location and operation of govertttnent
facilities and gcrvetrunent buildings. '
Section 4.3 of the Zoning (?refinance; the "Permitted Use Table; rrtaltes all
"Governmental Facilities & Office Buildings" perntitted uses in most of the zoning districts
within the Countyl subject oxtly to Site Plan review end approval as ,prescn'bed itt• Article 14 of
the Zoning Ordinance. only tlae EC-5, E-l and AS districts do z~ot incSude Governme~ttai
Fact~ities and Office Buildings as pexmi#ted uses.2 .
~ Section 4.1 of the Zoning drdimance contains a list of twelve (i2) hurl uses that are permitted as a matter of right
in ~l zoning districts. Number ! ! on that -list is, "[s]olid waste collection facilities awned amd operated by a public
agency Scu the purpo~ of disposal of household waste by t?range County residezxts." Tt is sat clear to us that a
SWTF fits within the plain meaning of a "solid waste collection facility:' Siace the list o~f zoning districts
permittiag the locattlan of a Qrovemmental Facility is almost as iuelasive as all zoning districts, it is not neeassar}~ to
answer the tlaestiort of w1~er a solid waste collection iiccility iachtdes a SWTF.
t The ~D Manual and the l~s7lsborough Area EDD design manual Gave their ownPermitled Use Tables.
"Governmental facilities and office Irai]di,nEs" are permitted uses in bath design Manuals, subject to design
standards and related approvals also contained ix the Manuals.
Mr, Craig Benedict
Page 2
]March I3, 2408
A "glair meaning" analysis of the term "govermnental facilities" indicates that a SWTF
is a governmental facility pursuant to the Section 43 of the Zoning Ordinanre.3 Webster's
defines the noun "government" as the atganization, machinery, or agency through which a
golitical unit exercises authority and performs fiuvctions and which is usually classified
according to the distribution of paws within it_" Webster's ds£~ a "facility" as, "something
(as a hospital) that is built, installed, or established to serve a par4icutar purpose:' Clearly a
SW'l''F, built and opezated by the County for the purpose of collecting and they transferring the
waste generated by County eatizens to another disposal facility, fits within the plain mean~g of
fhe farm "governmental fact7it3+" Similarly, given the construct of the phrase, "governmental
Facilities & Office 13uildings" (eanphasis added), there , is no basis to conclude that ~t'he term
"office building" modifies or limits the term "goveamental facilities" or vice versa.
It is, 8~erefore, our opinion that a County SVV'FF is a governrr~ental facility and can be
located in any zoning district within the County's planning jurisdictiion (other than EC-5, Ul and
AS) as a permitted use in aecordamce with use "P24" of Section 4.3 of the Permitted Use Table
of the Toning Ordinance sad the relevant EDD Design 1Vianuals.
Further, there is a conceptual problem with an iuterpretation~of the Permitted Use Table
that requires or would require as Orange County building or Orange County facility to have a
Class A special use permit. A recinir~+ertt for BOCC approval of a Special Use Permit far use by
Orange County of its Iand renders all land within Orange County's planning jurisdiction
unavailable for a County use•requiring such a permit.
In a case upholding Mecklenburg County's approval of a zoning permit (rat a Board of
Commissioner approved spacial use permit} for a Mecklenburg County sanitary landfill by the
CharlotterMecklenburg Zoning Administrator, the North Carolina Supreme Cotnrt wrote as
follows:
.Due Process requires an impartial decisionmaker.. .
.4dditlonal corrsideratlorrs beyond these fireanciai
interests require norrparticipatiara in quasi judicial
zoning decisions ~# fixed opinion t~iat is not
susceptible to change may well constitute imperm~tssible
bias, as will undisclosed ex pane communication or a
close familial or business relationship with the applicant:
The Count~of Lancaster= Sauth~arolina v. Mecklenbwrg.Cfl_uirty, 334 AT.C. 498 (1993)
{citations omitted). Mecklenburg Caumty had previously required all sau~itary landfills to zeeeive
a special use pernzit. That requiremeaxt was held, in: an earlier court challenge to it, tQ violate the
due proce~ requireanerrts cited above. ~d., 336 N.C. at 504-503. The Courts holding, with regard
,~~
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~:
a "If the words of a statata ere plain and una~mbigaous, the court need look x~o farther."
54'~N .
MI: Craig Benedict
Page 3 .
Nlarc~ 13, 2QEl$
to the due process re~quirefneuts cited above, is that #hey are less liltely to "Dame isrto play when
acl~ministratn-e zrnring decisions arernade since these involve the dei~minatian of objective facts
witho~rt an element afdisc~etion:' Id., 336 N.C. at SI1-12.
In the situation at hand, the Board of Commissioners is serving as the committee of the
whale in xgards to fhe selection of a site for the location of the SW I~. If a special use pe~mit
were required for the SWTF, the Cvauty would be requixed' to apply to the Board of
Commissioners for approval of a special use permit on tha very same site that the Board selected.
'I'bis special use permit approval process would req a quasi jadiaal hearing and the exercise
by the Board of Caurmissioners of discretion. The Board would not be an `impartial
decasiamnalt~x'' because the Board would be called urn to approve a special use permit on a site
that the Board. had itself selected. Tlfore, in our opinion, there can be rEo construct of drange
County Zoning Regulations rewiring the Board of County Corx-missioners to approve a special
use penaait for the County SWTC or for any other County building ar County facility.
Criveit the plain laugtr<1ge and intent .of the Zoning t7xYiinanc~e, it is our opinion that a
SWTP station can be located anywhere within the County that governmental fadiities and
governmental a~tce buildings are permitted pursuant to Line F2<l of the Perrni#ted Use Table and
in any of the EDDs as prescn'be~d in the Perm~i#ed Use Tables of the EDD Manuals, sub}ec~ to all
Site Pfau and EDD Manual reguirernents and pewits as applicable.
. Best Regards,
CQLEMAI~I, GLisD L, ~T~GRA & PEEK, P.C.
rian . Pemell . .
cc: Laura Blackman, County Manager
Gayle Wilts, Solid Waste Director
A.ttachmesst
~earcn - ~~ Kesutts - tluecla.t nse hermit w/e eaunty Pa.Qe i of it1':x
l
'~~_ .
sweee aiw L ~....e. i sqn orr l ~,jr+ar
p"~f"'~"4"~S~~Sta Lltl~'r~sa~e9oenclAdvkor~Counsetseb~ary~ ooowri~vi~ '~''
smrroa: JbeSt~i s : , } Nc Ststa Cass, casblrted
Terarx spadN oea P~ rds eotarty I~e9eestTamstatrysn~i
fSalaottor FOCx18'r" or Deitwery ,
334 JV.C< 446, *; 434 S.i= Zd 504, w
Ip931V.r:. LEXIS 4Q3, *x*
THE CAUMY OF LANCASTER, SOlli'H CAROLINA• THE COUNTY OF llNION, NORTit CAROLINA; ROSA PQ7i'S 05801WE; ROBERT
tiRRR; SAi'4 ARDREY and wtie, JAMIE !l. ARL7REY; LAVAVIA A. [Clii.<y MARG[ts K. BOyLSTON; TUCKBt I.20HN5oN and wiiti, ANGELUS
R, lOtit'tSON v. MECIQ.B88URG COUNTY, NORTtt CAROEfNA: THE HOARD OF ('AUNTY OOMMI5Si0NERS 4F ~N1l3CKLEA[BURG WUNTY,
NORTH CAROLINA, TO iNrf: CARER pUPUY, ROD AVfREY, .BARRARR LOGtCYVOOD, ROBE'AT f.. WA!_TDN, PETER tCEBER, JOHN G.
I3LAL'KMON, and IGENNtTH L AN[NtEWS; at-d ROBERT L. BRAPIpON, ~~ Adminhxrabor of Medtferrburg Courtly, North Carolina
Na. Z93PA92
SUPREME ODURT OF NORTH CAROLINA
334 N.C. 496; 434 S.E.2d 644: 1993 N.C. lEXIS 443
larruary i3, 1993, Heard in the Supreme Court
. • : :September 14,1993, Flied ~ -
PLt3DRHISTORY: j***1a Otr dfsa'etionary rsviavii of a detisdon of fire N 4
,(19921, n:verstng the judgrnetrt entered by FutEon, J.,,in rite Superior Court, Madden urg County, on T January 1991 and remanding
the case for further proceedings.
. aisposzTiot~l: AFFIRMED.
cnt;~E stt~traAtnr
PROCL'DtiRAL PoS`Tt7REs Def~darrts, nelghbarsrg county and Its zanirrg adrt4ritfitratot', appealed a dectsion of the Court of
Appeals (Noriii Carolina}, which revaned a derision granting summary judgment to favor of plaintiff wuntY and declaring a landfill
zo)ting arr3nance uncortstituttonai.
Q1fERVIEW: A cour4y and Indhriduais tiled an aCtian for declaratory repef, seeking to.have a neighboring counlys zanMg
ordinance declared umm~stttutional. The wort of appeals reversed the judgment flriding the orditwrtce unconstitutional and, on
appeal, the wort afR-:rred. The court head that the decision of whetherto permit a san#ary laridiiit was an adrrdnistratfve mrtkrg
decision. The catrnty'ir'grant oP a pemrit appUcatlon the! passed tine ardlnanot wunty was an administrative zoning declstan that
the mu~Y wrung administrator could property make. It was not an im(seimissfble wriflict of interest because the app&®nt f+~ the
perrrdt was the county itself. The same logic that perrratbed the county ~rB to delegate authority to the zoning
administrator b0 issue apeGat pee pettnlF:a also supported fire dedalon that the commissioners had autfiorily to attaMr the zoning
administrator m issue pennlts for uses tsy right subject to special requirements.
oU'T+L'OME: The judgment riwtrsing the dec~ion ending the county lans#Iti orcUnar}w unconstitutional was affirmed because ft
was a valid legislative prerogative btr change tfie sanitary tandfUl use from a 'special ore permit' cairsgory to a °use by right
under pled condRlons' . The or+cUnanca, whkh allowed the zoning admlitistrabor to approve isle permit appikatlort for
stung of a landtlN, was caaratlttrtianal and lawful an Its leba.
CAKE TERhSs landfill, zarrirag adrtHtiistrator, oohing ordinance, zoning. ordinance, use pamNt, sanitary, zoning derision, quasi-
judlcial, site, prescrihed, tmptrtnisslbl4, torH&donel, permit app}tcafion, surnmary ]udgLnent, speclired candlUons, delegation,
issuance, landfip permit, saltd waste, promulgated, zonrig dfsbids, objective facts, de rwvo. prop~Y mere. public hearing.
permiEled use, pfartntrtl; agenry, evk}entiary, declaratory .
LEXISNEXii~ tiFADNOTE8
E;~
y$> > la~Krsr Arwrd~w
ynot Pr~r,a,hr raw? TJIIIhG ~tE tm.~r ~~••> ~ .
+~d"OnIY use Persons Nrho have a specific personal and legal hrterest In the su1 matter affected by a xonirtg ordinance
and who are dirrctly and adversely affected thereby have standkrg to challenge a legislative xontng
dedsiorr. tiflrlis°nu~xe.,~ yam, .
[3~N Ptnr~el~_ > > a > fiehera) aver~Aew ~nf
>~IQ.> 7~70.C
~~m:tY r?"~ > Trrnia? "~!arlrt.~> fib
~,$An appellant challenging quasbgudlcial mntng declslons must present evtder~e that he is the owner ar optlortee of the
aPfexted property. Adjotntng properly owners must prosent evidence of a r~edtiixJarl In their property values. A
neighbocFrood assaiat~rt has standing if its tndivkiuat trterrtbers five shown actual finatidal harm &r order ip be
ag9rtCVed. f Sfi~s,dhe: amine ew_rlexdn~e
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~Un11ke special use permits, zoriing parentis are > by li'te zaning admlt-istralor Without a public heargr4 and as air
adminittrative mafxer of rtght tf the ob3echlve tyiberia are mat. Separate permits for site approval, eonsteuetton, and
optsaffon of sat>»ary IartdfNfs are subJect m ttsH rigorous regtsirerr-ents of fire North t;amAna Sofld Waste Mas>agarrtent
Rules. 9efore one may even apply bo the state tbr' a sanitary landfik persrtlt or petYrdts, the appitartt must comply with
t regutatlon~, whldi prwlde that the applicant rt'nl~ futniEh a lefts: from the unit of gtrvemment havbtg zoning
~tslsc~Won over the site which states filet the proposal meets all of tfie requiteRt~ft6 Of the local zoning
ordtnanca. ~)
ii~d.4t~smCLeer~> r:Rnlem>lvF~>
+rxs~><t an appicant ffi dissaUsfled Whir ttte zoning admMrislrarEar's decision, tine appf6eent may appeal ~ dre Board of
Adititittnttslt.
f.tA>eC> ts# ~> > ue yrexnss >
t> ate a ~~
ylw >7leinealanA llssy~
~$Due process requiremet~g mmtdabe that Detain quastJjudkial zoning dedsiotts dxrtply with all talc teal standards when
they are made. Hiyvrtver, sucfi wmpilance is not required for adrnintstretlve zoning dedsions. g H~ ~- I
admrnsuatts<~c>~>~~ .
•> ~ ~
sea s..~ > istnirig a uea use > rr ova.~t~ ~ _
' +~,7_oriing dedsions are tylriaalty dtaracterized eS being In one of fear dfffai+ettt cetegorles: legislative, advisory, quasi-
judidal, and sdmin[stratfve_ i
> >>~~
•l;oert.taie> Lahdltse> s;aseei~ar us f ve .
Rrrd.lavR~ w > >
~~Ea mofdng quest Ju trial tiecJSlons„ the dedsionmakers mast Nivesfigeta f8ds, or asattaln tfie ex)sstence of fates, hold
hearings. tMeigh evidence, and draw conclusions from them. as a basis for their official actton, and to exercise rSspntion of
a ~ut~iai nature. In the zoning txmxxt, these quasi jutildAl iisdNons itwoive the apptiwt~n of zoning polities faD
indhrtdual sitaratiottis, such a5 vartanoes, npec{ai and erondit3onai ust permits, and appeals of tuiministiaHve detarmfnadons.
These dew involve two key elements: the finding of facts regarding the spedfk proposal and the exercise of some
disrr2kit5n fn eppiytng the standards of tl-enrdktance, f9tatY.~~etMs tt~anoce I :dxirasrA~i~.td•e~ tfesa~e
»^^1neJtJ ~..>~mofo>t~c .
hear yrenerty lsw } ~> .
Rw~a ,~.r~en~tia,+• > ~at~.lf~liAdl~t>
~+&,~Administsatiw: c>edslarts are rouHrre, rsecegonary zoning ardlnarxa impt3ort rttattx~s carrJed flat by the start,
' ritcluding issuance of permits for pett»igxd uses. Tn generel, the aordng admfnfstrat7gr is a purely administrative or
mirtisiarlal agent following »x literal provisions oftl'-a ordnance. The zoning atlmiN~ratnr may welt engage In some tact
' finding, a:t kt makktg ah initla) detettrdnatitm as to whether a rrontonfot'rnin9 use was Ili ex~ettce at the time a zoning
provrslon was adopted. Sat, fn Such IttSCances, this Irltrolves datermintng ob~edfve tuts that do not tnvoive an element W
dlscrefiort. 19•ees-tlhe: itestrfe!<av xrdnnte
~j jmtrMt tin, a orKeden.. > ~pp.> : ~ •
iteal Pinu4rly raw > innlne a______ r .,r+er te.w > fiins~
dial Ll» r 7mune tt t and usa> ~
Oue process l+e'qutrernants florqu~s~-iucNdat mniny dec~ions mandate that alt t`air Piet standards be observed wh4n these
decisions are made.'~his ltuludes an evid~ifary ttisat'trxf with fire tiglrt of ttte pattlea to offer evidence: rroserexamine
adverse witnesses; 6tispect dowmeirts; have ttarrom testtmonyF and have written findings of fact supported by competent,
sutsstanUtjl, and malarial evidence. Sy contrast, an admlttistrattve zoning decision is made without a hearing at alt, tiuith
the staff member retdewlttg an aQpYtatfon fn determine if k is agrrtptefs and whether et camptles with oli}edlve standards
set forth in t#ie inning onrinanoe. { •
BdaBO1~6Rlae.> > a ~ .
. ~ > jeett+e a una use >
$ > 7enlne 9 >~1 ~tse > S~y~pi vet r4 yaNanr.+as
~~,tA special exception within the meaning of a zoning ordinance Is one wrath is eupreaslY permitted !n a given zone upon
proof` tfiat attain fads and cpnditlans datatled in ttie ordlnattice exist. >x is greeted by fire board, after a pub8c hearing,
upon a flrttErtg that tht rpecifled condlt1ens have E>een satirJted. If adequate guiding startdattis f rn' the deeislon are set
forth in the ordinance, tfils is not an unlawful delegation of ItyiSiatiVe aukhortty. t9tlR_.Ltl~Ytds neea.~ee I
eruw~..Or. eWNer ttN Me~MM.
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xH:i$5pedai and condRfonal use permit dt:cisions are quart judicial zoning detislors. When a board otaldermen, a dty aoundt,
or zoning board hears evidence to datarmine ttie exisbatuzz of facts and oondttions upon wftidt the ortikiarxx ttxprassiy
atuttorizes k bo issue a rpedai use permit, it ads In a quasi-judkdat capacRy. [
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6dmt0Ia1El> > Sipg ~1 ape,
/.las> 7s1at69 a ~ •^? u~ > SM~.yennka !E yar's,~erc qo
H~Quad~trdkiai ipedal use perms decisions may not be assigned bo the zoning administrator. More laa. ~ H"eduete ~
~ram.e„ler L>r~>r_ > 7."nr,e aSaadS~ > aIIl lGed~lrs~~ .
sin } a t~
8atl.~cttex> pnnkw a ~ ilea a ~1LPfJxIlhF.lt ~*~ ~ .
~~The zvnTrsg enabling statutes allow apedat end eorxlRtona! use pemtitt decisions !p tae made by the board of edjusgnent or
the goverr>ing board. N_ - ..n. Slat. ~ s93A-3ao {1991), 16AA-981(1987). N.C~a+ 5Ya-t, ~§ 1~s~~and 3,89A:
~8$ hrrtiler aifow the dutles of the board of adjustmetlt to be sssagn~ to a °pianning agency." MEre uk.7his Headnefa
taro > fentwe A L"1." Ui! y
~ N.C. Gen..stat. g.15#A-~1 provtdes that an agency Veeb~ ar destgnabed pursuant to this section may ir-dude but shall
not be limited tb ons ar mwe of the following, with any stat'f that the board of carrunFsstaters considers appropriate: (i)
A planning board or wrtrmissian of any size (Trot less than three metrtbers) ar composition considered approprtate,
'organtaaf to any manner mnsldered appropriate: (2) A joint planning board. Mare Lab chic xndnoee
~> >> ~ '
> fe,dne ". r„ul +~. yS70GdRf0IDLVBGE!RrIIU
> zeldne a i and Lhi. ? ) Peemrts a Vaderv~s
~s*+~ While x.c. Gerr_ Stet >;i3.~nr .t gives tog! government considerabl9 latitude, t8at latitude doss not extend far enough
to aNow ttis designal1ori of the inning adminislxator individually bo wnsUtute a •ptarating agency" for the purpose of
maWng special and cortdigonat use perrntt decisions. !Sara! ~Uils x~~e 1 sueoedhr: aeitrkt s„ xe:dnoto
edmrlsbernle 1 em y > leslstetlfreSso~s > Gm>e>t~.Q~e ~ .
keel Prenelty taol> ~> ~ '
ra'r~tAQrile and 3~ mandate that graMS of autltority to Iorai governments ba broadly
lntarprdted, zonhsg autilorlty cannot bt exercised in a manner contrary bo the express provfsior-s of the zoning enabing
authafty. tlra~elxcen,>s xeaAm4e ~
~> zeMno a reed Llw > LBmdeslr ~ .
~'=r+•A zoning ordinancz ~ presumed Valid, etK! the ulurts will deer tp the governing board`s leglstatlve judflment unless ~ Is
dearly srrxeasanabk or art abuse of d'recretion. j~1
rnnalherneul'f-w.,>> >Pp~ >c.•nro oromses~en mil)
Rose ymn"rrv 1 ew > ~C> .
yea
rMna~Oue prncess'tagtAres an impartial dedsionmaker. Whit ksgidative zoning dedstons, an elected otiitia[ with a d7ed: and
sub5tartt181 tirlarrdai (merest in a aonklg tiedston may not parttdpate in making first decision. M C ~S^ Stet GS 1'~A-A4
(1991), iSQM75 (1987).1Mtlere there is a spedflc, s+rbstarli3ai, and reeddy idengflab[e Anan¢a[ Impact on a member,
rwnpertidpatwtt Gs roqutrad. Additional cderattons beyond these fUtandai interests require nonparttdpatlon in ttuttsi-
judidal zantng dedstana. A fixed opinion that ls.not susoeptlbfe to dtange shay well cortst3tuta Impermissibie bias, as will
utuAsdosed ex parka communigtiat of a dose familial or business relationship wRh an applicant. I •
a aka
r+ivta~; the pubik polky Is pronamoed against perrr><ttNlg ate bo sit in judgmerst on his own cause, or to act on a matxer
affedlnp die public when he has a direct pssesuriary Interest.
~ro~ehrf r e,. > > ImOHClalnt >
~sz~loa~lJ~> .
+~~Absent a shornring of undue ksfluanoe, the fart that an app~caflon Fs made by an employing salt of govemrnent does not
in and of tonstalrbe impemrl~ibie 61as for admirdstrative zoning ds. Mere Lxc~r~s HeemroLe
6~moistr~x..tax[> ~ >?;midedlilf4t> ~wi .
u.el Preesrty ew y p~ 1. Ile. y ~~lr7littl~t
rM-u~A key element In the dat;ecminattan of undue Influence in quasi- judtclal zontrsg determinations is the degree of dtsrretlon
present kr the derision, which is also a key Sacra in thG characberizai9ort of a dedsial as quasi-judkiai pr admtafstrattve.
The g the rar-ge of discretlar In ezerdsing that autlwrtty, the greater must be the concern that tfie petsotl
exerdsJng R be tree of conflici4ng persor~l interests. More like sine xead~a I ~*-eeMhe• nnrnirt av Fteadnoke
~ y g~era ran N oewe~a 4aINi6." :~.'S2n'+~" > l~RQ~OBaIl1
Sail>>
nea,rn11.~ y z.".rne~".~' => o".a7M 1 ya nrac ~al
Knsz~Wtwt a statute, or ordlnamx, provides that a type of structure may not be erected In a spedfled area, except that arch
structure maybe erected thereit when certain cadltAans exist, one has a right, under the statute a ordinance, to
Such strudalre upon a siwwing that the spedfled mndkions do exist The legislative body may contEr trpan an
administrative officer, or board, file autfiortty to detet7rtirte whether the spedtled corrdttions do, in Pad:, exist and may
require'a permit Fran ssrclt otficsx, or board, to be issued when he ar b sa determines, as a ttather condltian precedent to
the right bo erect: such tArutture in such ar+ed. Such permit is not one for a vaeance os departuns from the statute a
ordxranrg; but is the recognition of a right estabt~hed by fire statute ar ordinance itself. CQttsequendy, the detegatton to
surfs oPfiee+r, oc board, of auiilortty to make sucAt de4ertnination as to the ext9tenee or rmrrexfsterue of the spedfkd
m
la
,~
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Cn - I,C KeRtl1T_c - RnRr:rAt ~ticn s~axft~4t •xrla n.,,+hty
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tatrdltions Is not a delegation of the tegEdaHva pourer to make law. •l~alprzsnx sreaa~ .
t~A0tV0'fir8 e~
lt>:ai~leotEs
i. Fluntcipai Corporations; 30.8 {11CI3d) -- sanitary landfi# -- summary3udgmerrt under prior ordinance » efEe¢t op
action under amended ordinance
An tmappeakd, sunsmary judymertt in 1988 dedaring Meddanburg Caurrtq`s 19BS landfill zoning ordEnarxe urx;onohal was not
dispositive Of this Case wharf Macldanburg CottRij- sought and obtained a sanitary IandflU special use permit; the i9t18 judgment
estab6stsed, trt „ that plainttfl~ were deprhred of their due process rights because the Meckenburg County Board of
Corra»is6toners could not bean impdrifai tribunal vrftfs regard to ti-s s:pacis! uae pst7nlt appAcaUon ty MecWanburg County and that
lieckienburg County had failed to offer competent, material, and substartE3al evidence tp meet some ~ the required findings of the
old ordinance; U1e 1965 spedal tsse permit was dedatacf null and void and Cleo judgmarst warn on to [***3] say t4tatthe
torrunissfonen; wouM bs: required toamend the zonlr~ ordlrtarrce b~ora taking fltrllseradion r~a-•ding the tandfiN; rirat}rrdgment
was not appealed; Mecldertburg County amended its apnktg ordinance; and plainlsf<s now cornend that the unappealed 3 August 1988
jud~ndnt predudas the aeddertbttng county Board of Commissioners from otttalnhtg a pd•m1E undar• ttte ordlnp~e as amended. The
1988 }udgm~st is birrdktg only as to the procedure under the ordtrtarsx•as it gsdsted prior to the 1989 amendrnenls, the amrndrrtersts
followed the dL~tlves of the 1988 judgment, and Cite fact that 4lse 1968 judgmerR held that the County had failed to make a sufFfciertt
showing to support the flrtdings of eomp[Eance with lice leiten-effective stele r8gu(atlans hes'no bearfng upon the 1994 permit
applicatron. ,
2. lwiunicipai Corporations §30.1(tiCl3d} -- zonlrrg -sanitary landfill - administrative caning decisfoq
A ptovisiart of the amended Meddenburg IandNii coning ordhsance ~ncerrsing approval oP permkepplicatlons by the Charlotte-
idecidenburg zoning Administrator is fadally constllutMnal becatwe the conditions whidt must be met prior t>Q issuance of a petrtrft are
objedlve atar+darcfs tHfstoh can {**~*3] reasonably be applied by dre 2onErtg AdrrttrrFstretor wtltr.tlre as~tance of the Dlrrceor of
Errgineetirtig ff necessary. iNhettter the derision bo permit a sartltary larulflll should be characterized as quasi-nxiidal or an ' ,
administrative zoning decision was critical, slice the derision was made by fire zonktg Adrttinistralor abne, without following the
manda6e for a fiAt evidentSary hearing, it carx-ot stand es a quest-judfdal deris~ort but eompMartae with alt fair Maf standards is not
requited for administrative zoning dettsions.
8. iNunictpat Corporations §30.1([ZCI3dj -zoning -- sanitary landfill application by c+orrrrty -- no bppermist:ibis wrsAlct,
of interest .
Ttsere was nb tmper-ni~ble ODMtct of It-terast where Pler3dertburg County appfled fur a tand(ltl perrntt tD the Qharfotie-MerJdenbucg
Zoning Administrator, The applicant is Meeidenburg County almre while the zarting adirttnistratar is the Charlotte-Mecklenburg Toning
AdministraWr and >s invWved with administration of zoning for Maddertbrxg County and ~c munidpafities within the county. While due
pt'oress r+equtres an hnpaiGat decEslorxrralcer and an elected aRiciaf with a direct and substarrtiai finanda[ interest in a xarttrtg
dedston (*¢*4] may not parttcipabe fn making legislative zoning dedsians, these considerations are less 16ce1y do oomC ante play
when administtatlve zoning dedsions are made since theme imrolve the determination of ol>jedtve facts wlthput art elemerft of
dtsattton. Further, the zoning enabling stattrbas protride firr a de nova hearing before rite board of adjustment. Absent a showing of
undue influence, the fact that an applicagnn is made by an employing un3 of govemmertt dtres not to and ~ itself constiprte
Impermiasible bias tar administrative zoning deristats.
;; ^rr ~t • Waggovrar Hamrick Haste 1tJwtIB/Fh Kreit ~ MtDanne!!, by JohJr N. Jlasty 8nd G. J3ryars Adorns, 717, for aJJ platntlJ~
appeJiarrts other than UrrJon•eaun(y; and Sanford t, Stesfman, ?r., Jbr pfaJrrtffKappeJlant tlnton Courtly.'
Ruff; So»d, Cobb, Wads & MciVaJr, byl'a»ASS D. Cobb, lion' aN daRsndarJt~apWeliees other than Robed Brandon; and Srnlth Helms Mu!liss
t# Nroorss, 6Y H. t~ndis VYadq 3r., tordefendant aPF~e Robert Braraion_ .
n as e• A9eyer. 3ttstlce.
OPINION 8Yr MEYER
of>z~irol~
{#498] [**ti47i Foifowing the entry on 3 August 1968 of a ,$rdpment by Snapp, 3., let the Superior Court, Medefertburg County,
that dedatttd Meddenbtrrg Oonnty's 1985 fartdflil zonktg ordinance [+**S] un>xnsfiwtitxtat, Meckenburg County, on 1 May 1989, ,
amended its zonktg ordksanoe, whkh in etFea adoptRd a r1BYV, 1969 lar>dfld zoning ordktanoe. Mecklenburg Cotmty suttsequ~9y
petitioned deferxiarli Robert L Brandon !ar a sanitary fandRli permit under the 3989 IatldfRi ordtrtanca. befertdartt Brandon is, and was
at the time the peddon was tiled, the Charlotte-Meckienlwrg Z.arring Administtator-
Platntiffsbrought this adios fbr dettaratory ~rdgtnertt pursrnutt to b .6. G6 -4 +'~ b0 -267 and Rule 5?' of the #lortf t Caroline Rules
of Clot) Praaed~rre to determine the vaYdity and rorts~rrtiotsality C*~+99], of the 1989 orctnanoe. Answers wars ibed by the parties,
and jofrn morons for surrsmary judgmast and judgment upon the pleadings were filed by a8 parties. These motions were fseard betvre
Fulton, 7., Resident Supeettor Court 3udge 1br MscSctenburg County, on 26 Marls i99t1, Sub~querrtiy, on ZO december 5990, fudge
FuttOn Issued a memorandum oP~rdprnent and tftereatter, an 1Y 3arnary 1991, Bntxrred jlydgmESlt gtantittg Summary judgment in
Pavoraf plakttltfs and dedarirtg fire 1989 Mecidet~urg Courtly inning ardinante unconsGtutkxtal. Defersdants appear to the Court of
Appeak, and that ['~*+6] court, orr 7 July 1992, rendered tts decision reversing the superior bow~t.
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iMairrtEffs filed not-ce of appeal end De7Ttton for• disaetfonary review with ttfis Court, and we granted discretionary review of the Court
of Appeals' decision on 39 September 1942, //
The priRrary Issue before this Court ES the facial constitrklarailty of 5ectiorr 3124, entitled "Sanitary t.~ed[iU," 6f the Mecldenbtrrg
County zoning reg<Itations embodied in the County`s zoning ordinance as & relates bo a provl~on that eliovrs the Charlotta-
Meddenburg Zoning Administrator bo apprksve (fie County's xoning pemdt appNcation for the sRing of a IandrtlE. There are two
subsidiary mss: wheifier pla[ndffs have standing to brktg ltle dedatatory judgment action artd wises the 1988 decisbrr of the
superior rout, which was not appealed, has arW effect upon tfre present Ittigatfas. We find Ir unnecessary to address the Issue of
standing, concaude tfiat the 1988 judgment has no effect on the present lUfgatlon, frMfier oondude that the ortfinanoe in question la
not fadalty uncorrsii~onal, and affirm the deaisian of the Court of Appeals. .
Meddenburg County is responsible for providing so8rl wash disposal fedilfies for [**"`7'I ~ apP~Y 640,000 torts per year ~
solid waste that is generated In all areas of Maddenbury Ooutrty {cloth Irroorporatad and unincotporabed}, except from wHfiin tfie Town
of Matthews.
In AprH of 1985, the Mecktenixsg county Board of Cammassioners fakd an appUcation far a pemr{t to site a sar>itary landfill on county
property ad}otning Highway 321 kt the soutfierrarrost tip of Mecklenburg County (the "faigilvray S21 site"}. A portion of the boundaries
of the proposed land rte are adjacent to ixicaster Caxity, Srnrdi Garaikra, acrd Union County, Noah CeloUha. The 1985 kaunty. landfill
orrl'inarrce generally provided that aanitafy landfills [*500] could be toca~d, oriEy upon~the issuance of a special use permit, and
ally in certain, specified taring districts. TfNt 1985 iandfNi ordinancx also provided that the Mectcleribrarg County Board cf
Commissions would sit in judgment of ks own appUcatlori far a permit.
After a pubUc hearing, the MecWenburg County Board of Commiastoners Issued >o Meddanburg County a spacial tree permit to
oxistnrct a landfill Ott the Highway 521 site. This decstan was subsequeritty appealed by all of the ptalntifis herein (with the exeepgon
of union County, ["`**8] whteA was opt a party tD that action) th the Superior Covet, Meclenburg County. Ori 3 August 1986,
Judge Fiattk W. APP dedeced the 19851ancUFll onUnankx unconstitutional as [**60ti1 bring M violation of thg
~31tft ~irta,~,th Amendrne~r of thn ~ ipit~ sratPSf n~*+~km. )txlge Snapp also dedared tfiat Mdcicf®nburg County's actions in . .
obtahiing the landfill aria, and Sts aGaons In attarrpl4rrg bo issue a permR to it~tf for suds site, had M fact rendered tfie County biased'
and krcapable of sitting fn judgment of Ns own applicaiian for the HighlNaY 521 eke. Nledclenburg County did not appeal ttris
lodgment. .
Mecklenburg County amended its zoning ca~r+anoe with respect to Sen#ary landfills on 1 May 1989. The i May 1489 amendments t~
ttte earring oMinanx did nkrt change the zoning darion of tfie Highway 521 landfill sU:e or of the surrounding property owned by
wire of tale defendants. Mor+eoveq rile appiicatiai under the amended ordnance for a zondig permit was direcbdd to defendant
Brandon, whose lithe is Chariotta-Mecdenburg Zoning Admintstrabor and who admiaisten: zoning ordinances promulgated by
Meckenburg County for the unincorporated areas of the [~'**9] county acid those promutgabed by the Towns of Mattt-evrs,
HrmtersvNle, Corriellua, MEnC FUU, and PitieviUe within the areas of Cheirzoning Unr}ts.•Mr. Brandon's employment Is root atthe pleasure
of the Meddenbure County Comrnissiorxrs., Rather, his employment is protected try cxtah- personnel polldes and regulations, whicfi
wautd prohibit the termkration a demoUOn of Mr. Brandon by his supervisors except for cause.
~ln Section 3301 of the ordinance, which was not changed by the 1 May 1489 amendments, the Mecklenburg County Commi~taners,
as aeglataGare, have divided the zoning uses trito three types as follows:
[*501] This ordtnante,pro'vides far certain uses tks be )orated by right in certain districtswhere the uses are compatible
with tfie purpose of tax district ~ and with other uses to be located ih cestein distracts only by camplyirig with addidon0i
dave~pment staruaards to insure that same canpatibtEity. m However, c~tafn tomes whidt era basiwUY in keeping with rho
intern and proposes of the dlstrtrt may }lave sutr~atiCia! impacts on the srrrmrmding area and should Doty iss allowed after
a review of the spectffe proposal. In order to iticure that these uses would be conipatlbte [+'**10] with surroundfrg
development and be En keeping with the purposes of the dlsbfct in wh[ci they are proposed bo be pieced, tfray are not
Mowed fo be eslabllstfed as a mortar ofright. They may be established kusly after a review and 0pprovaE of a speciel use
permit es required by this chapter. s
(F?mphacis added.)
~FOOTi~lOTES .._.__~.__.. ...._._._..~. .___._. _........_. ....._._..._. -..._.._.....~.__ ....~.-...,.._._ ... ...
>. The filet category, wl>y right;" is actually an Inakxurate characii3rization because even single-famtty residences in single-famUy
residentlai di~rikts are subjeetto certain zoning requh'emeriis suds as minimum bt areas, miMmum lot widths, mirrimum side
i yards, minimum setbacks, etc- .
':The second category is those "user by right under prescribed corrdlHoris." for these uses, tl-t zoning ordinance speaks
3 tnbd~changeabiy'af "urns qy right stgrleet to spPtFat requirements" and "rses under prescribed cardtions.' .
t
s The third category Is those uses tiler are not atiowed as a matt+r of right with or wfltfiout specal tequkemetris: ar wRli or wttfilokrt.;
! presaabaf conditlons and that require a "spedal vse permit" ratl>~ than a zoning permtk The emphasbxd language and Rs place
s in the ordinance esteblisttes that rsres "with addiUonai development standards" (spedal regtiaanents qr under prescribed
tondlttancj era by right and are distlnct tYarrt uses requiring^spekdai use permits with the atberidaiit apec3at procedural dements ^~
[***i1] Sectiai 3124 of the ordhianca ~ amended provtdes as fotiows:
Sanitary landtUis are permitGed,tn all districts in Meddenburg Gbunty subject: to the development standards listed below.
The establishment and operatiai d any IandfUi must comply with Softd Waste Management Rules of the Sta4e of North
Carotins and the "RegtAations GoverNng the Storage, CollerfiJon, Transporting and t)isposa) of Garbage Arid Refuse in
Mecklenburg Oounty" as adopted by the Medkienbvrg Country Board oP Commissiarers under at43,ortty granted by the
General 5tattKeer of Nkxth CaroUria.
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["'5021 5ubsectlons 3124.1 through 3124.6 detine'sartitary IancNNE," set out a procedure }'or [**ti09j reclarnalfan of the .
proposed sNx, set forth yardage and screening requirements, specify permisslbie hours of operation, and regulate access. AN
douurrentetion supporting the applyion must be su6mitbeci re the Zoning AdmiMsb'ator, who, wkh file assistance of the
Mee*lanhurg Ct><rrtty otreetor oP ss>gtneering, must assure that the appfle~Ort oompites whir the ordtnance and regulations referred tb
bt 5edlon 317.4.
Subsection 3124.7 provities that the Medder-bttrg County SuiicNng Standards Department must natlfy all affected (***12] property
owners, advlstng them of tine proposed devaiapment and when and where the plans may be inspected. The Zonirq Administrator w .
step requked to post a notwe at the site, g that rezemirtg for ttte propasnd use has been requested and stating where addiganal
irttbrmatiiNr may be obtained. After ne»]ces are mailed, rho Zonasg Administrator must wait at least Afteen days acid hider aN
comments on the applcatlon before deciding whdfrer eo issue s permit for. ifie proposed rase. Orin the Zoning Atministrator makes a
dedston; he tree five days to n~affectad property owners and anyone who aornntertteti cxt the proposed use. Any person aygtfeved
e Zoning Aciministratex'5 Is entitied to an appeal efe navo in the 8o~+d of Adjustment pursuant to [f•C~.C..s_. §1 3A-~a
Undue the 1989 Meddenburg C41fl1ty zoning ordtnatice, sanitary landfBls are permNted to all inning dlsMcis in iAedclenburg County so
tang as the estabtishmerrt and aperatlan of the landfiN campNes with the Salkf 9lfaste Management Rules of the State of North Carolina
and the "Regulations Goverrttng the Stooge, CoUeetfeat, Transporting and i>tsposal ~ Garbage and Refuse in Mecidenburg County as
adapted [***z3], by the County's Soarri of Corrimisa{orlers under authority 9rahtx:d by the General Statutes of earth Caraltna. The
ordinance also requires that a reGamaYlorF and altetiuse plan detaNing the steer tree be submitted; that the use not be inconsistent
wktr 3 garerai w~eraN county plan, referred tows fire 2005 plan; that a special reserve fund in an amount to be daterrrtined ]sy the
Zoning AdrrrMlstrator be set aside for futta+e teas; as weN as generally for setbacks and erthe+x objective guidaGnes and conditions.
Tire 1989 ordinance does not provide far a ptrbec hearing btdvOre die commissiexrers or the Zoning Board of Ac~ustment but raticer' .~ -
ptovidesthatthe Z;oning Adtrr>ihistratorwiN determine whether [x`5033 the cortditfon6 were satiaryed In ord~r>p Issue sudr a zoning
Permit. it also retgrires the Zoning Administrator to receive and odder pr~Nc comment on the application for permit hr rractring his
decision.
dr- 8 December 1989, tdeciderrbtrrg County again appNed for a zoning permit on the FNghway 521 site, Under the relevant amrrrdment
to fht t4eddenburg County 7otttng ordinance, the appNeatian was directed to defendant Brandon, who is and was the Charie#e-
Meeddenbirrsg Zoning Administrator and [*"*143 who adminis6ers zoning ordinances pranwEgatsd by the City of Charit>ite forthe
areas wltfelrr its Eimlts; Prmnuiggaabed b1/ Mecklenburg Cotatty fos the un#r~-porated areas c>#the County; and prornutgaeed by the
Tpwns trf Matthews, iitgttarsvple, Comeihrs, Mint HNI, and irinevige within the areas of their zoning Nmtis.
The ptatMlffs fNed tits action for dedaretoty reitef seetdng to have the 1389 Mecfdenbura Co~Y zoning ordinance dedared
unconstiar4onai as welt as raising other issues. 3udge Shirley L Fulton, Resident Superior Court ]udge for Meddenburg County,
aorth Carolina, actlng an cxoss-rrtotitxts for summary judgment, issued a memorandum of judgment dedaring the new bleckier>burg
County zorrirrg ordinance uneorrstitutiemai in that it improperly delegated the authority of the County Commis~onexs to consider
special use pet'mits to the Zoning Administator, in violation of N_c.GS. §~ -3bo. and in that the ordinance providing far the
Zoning Administrator to freer and determine zonir~ appikatlons was a derda) of due process under the ~- r~teereth Amendment erthe
i„jrittrr_r Oats r_....~•1~~,
Deteitdants'appealed to the Court of Appeals, which held that MatlCienburg County could delegate j***15) its authority to a•zoninp
j+*61p] administrator m Issue special use permits and that such procedure wee not a denial of due proems.
.We first ode fire lsstre of standing. ~ In their re6pet3We briefs, the parties address at same length the gvesiian of whether
[*5043 the plaintiffs had standhKi to bring the dedaraiory judgment action Lltat Is ihs wbjea of this appeal.
~~ooiaa~s .. ......_.~._..~_.._ .. ......._...._....___..._.._._, -.. ......_........ ..j
a'~=+OMy those persons "who [have) a specNtc petaan~ and legal krtarest in the subje~ matter affer~ed by the zonh;g i
i txdhtance and who [are) dfrectly and adversely ari2cted ttrereby have standing to challenge a legislative'zoning declslorJt. ~
' y,_{j~Yaf a h. 2~! N.~. sne,~o. 227 ~.t=.2d~,~~ 91 761 see ~a y Jbr~fBisfL..~3'~.~,.. t~F 1s7 C~F',Td 3S
f;12Z21; Z4~l.it-crty nr iNRlmingten, Z7~.111.5~ a~t.3f~4.5,~7d ;",5 f fo6A). t~yt„ s v..fgY_dfA;ixhda3f~. s~ ra.r_ npp,,, ,Aa ~ -
g,E,2 3¢ji,,,[~cot; 1 alludes bo a requirement far "special damages" distine:ttram those of the rest of the community m c~rfr;r
i standing bo•chaNenge a rezoning. 1
s ~
s
;The use of the "spmciaf damages` test In Davis is taken frtmr the cas~s'on scantling bo Challenge quest-judidal zoning dedairns. In
i these instarroes, H^~tlte appeUarrt must present evWertce that he is the owner or optkmaa of the affee~ed property. trumbie tNl &
v. Bd ofA,~~'(Bg~, 49 ~Ald'.,.BiNk I81 70
i ~.b,3 ~ f~fiD1. disc. rev. dented 8 appeal dASraiesed, Adjofhing iu+operiy owners must
.: prt:serrt evidencet of a rafuction M their property valuere. ~Y_Y. zorilno BA~.o!'!td-r<~men~, s± tB.C Ann_ fi~,~, ~pC~F,~nb9
(7,5.83}. A ndghborhood association has standing if Its individual members have shovm actual flrtandai harm in order to be
"aggrtaved." ~'°••red c~easy. _ ofAdru~rn~spjefa`n.~.me..ga Ny, A~Ib-~, 3fF 1~•>:~~.1~I1..~1= f' . '~ .,
[*a*163 Under d1e particular facks pYesBrttsd In this wse, we find it unnecessary to address this i~ue and assume abndfng of Yne
plaintiffs to bring thk actitxt arguerrtlo in order to address the tmparfant issue of the fadai cortstitutiorraliiy trf the Mecicienbur9 County
aorttng aviinanrx as ft relates to sanitary landfrtla.
jia We next address the Fssue of rite tdfect erf the 1988 audgmerrt. plnlntlffs argue that the 1388 unappealed judgment of Judge
Snapp entered on 3 August ig88 declaring Maddenlxlrg County's 1985 landfill zoning ardfnanae•urrcoetstitutional is disptuttive of the •
praseM case. Wt disagree. ,
Meckfetrburg County inRta([y sought and obtained a sanitary tandfiN special ass permit under the pre-1 May 1985 xaning ordinance,
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u~w.~ae - rL ,t~~1aw - ayv~,aae tray (~ettuu wrrs wur„rty
c.rt
which resulted in ptigetiott between most of tJte plaintiffs in the instant case and Meci3ertburg County.
Thd 3 August 1988 judgtrrdtt estabflshed, in effect, that plkkufffs (then petitioners) were deprived of their due process tlght~bec{
the Meddenburp Crsunty Board of Commissioners mold not, as a rr>attet of law, bean impartial tribunal with regard m the s
use permit application by Mecklenburg County and, also, that Meddenbur9 County failed [***i7] to offer corttpettri;, ~:~:
and suitstantiai avidenoe fp meat some of the ater(pt,.,,;}
required fktdirtgs of the old otc9nance. The 1985 spatial ttse perrnlt was declared riu[I ~;..
and void. The S August 1988 judgment went ar- to say that "tile Meddenburg Board of Commis9~ers MRq be requireA to amend its? ~~
Zoning Ordinance in one or more cruets, before further action mar be taken with respett to this samitaty 1andNtl site." The 3 August: w~"'.°-'•
1988 judgment was not appealed. --
[*5QS] As a result oftha 1988 judgment, hkdclenbuig County did amend 1~ ranln9 ordGtartoe. The i May f989 amendment, krYer
aAa, rrinovCd sanitary landfills fleets the speclai use permk secdort and placed them in Section 3141 as uses by right "subject >p
special n~quirernenls"Ponder prescribed oandido~" (fie two phrases are used intarhangeabry). We hereafter rater to this type oP
use by rift as a "use by right ands prescribed mnditiorts' ar a "use under prescribed mndttfons." .
The plaintiffs contend that the tMappeafed 3 August 1988 judgment pret~des the Meddeaburg County Board of Commissioners from
abta<ning a permit under the or+dtrtance as amended. We disagree. The effect of the 3 August 1958 Sudgmartt of the
Mecklenburg [f * •i8] County St~eria Court must be analyzed in the context of what was before the court at the time.
[**Bii] Under the ordktance ax it existed prior ro the 1 May 1989 8mertdments, the Board of Coanmissioiters sat as a quasi-~udklal
body to gram ar to deny Rs own special use permit application (which was not a •use by rust") with no de now appeal available. The
1986 judgment Is binding only as to that procedure. The 1 May 1989 amendments produced a totally di[ferent procedure that involves
both a "by right" use and a db novo reviex by the Board or Adjustment.
The 1968 judgment pravkled that "the tecklenburg Board of Commissioners wifi be required to amend its Zoning Onfinanoe in one ar
mare respet'hs, before further action may be taken wRh respect !p this sanitary landfill eke." The 1 May 1989 amendmenus followed
the direCtlveS Of the 1988 jus~pme(it, tllai ls, rite zoning ardkrance was amended so dwt the frdt(al determination watdd be made by
the Charlotie-l~teCklenburg' 'loving AdmintstraOPi' and so that thereaRer the Zonng Administrator`s determinatbn or deberminativns
would be subjectto aompiete de nova review by the Board of Adjustment.
The fact lilac tfie 1988 ~rdgRtent [*+'*iB] held that the Caurtty had failed to make a sutfklertt'sfsowing to support the findngs of
mrmpllanoe with the then-efi+ecUue state regulations Etas no bearing upon the 199FJ permit applkation, es drat requiremenE of the
earlier ordinance was eiimfnated by the 1 May 1969 amendments. Under the amended ardlnance, only the slate determines whether
the application for-the state permit meets the state's wrrern rules. '
[*S06] 1f one compares the pre-1 May 1989 spatial use ptrmit requireements for sarritaty landffils wilt the uses under prescribed
mnd{dorts M the 1 May 1969 gmendments, k is obvious drat the Board of CammisSionetS fundamentally changed and lessened tise
requiements for a sankary iendfilt roving permR as compared to dse old requirements for a special use permk. -
NK~'U-. nl6ce specal use permits, zoning permits are issued by the Zoning Admirstretor widwut a public hearktg and as an
admirtlstradve matter of right lithe objective criteria are met. Separate permits for site approval, dory end operation of
sanitary landtlMs are subjed to the rigorous r+aiuiremersts of file tdortts CaralKSa Solid Waste Management Rules. Before one may even
apply'bo the state for a sanitary [***20] land permit or permits, ~= aRPt must comply with state regutatioris, whkh provide
t1~t the appllcerrt must fUtYtfsh a letfier from the unit of government having YOt1k1g jurlsdictiac- over the Site YvMch states that the
proposal rrreeL4 ail of the requirements of file Eacal zoning ordinance. s
FOOY'NOTES '
i
~ s The.mning permit issued by the Zanlmg Administrator that fs included In the record on appeal was Itlcisuied by Meckenburg i
r County in Its $ppfication for a state lendltfl permit. The effect of the ruling by the trial judge was bo cancel the validity of the
( zoning permit and,. aceordingiy, tO make Maddersburg fiaunty's 8pplicatiort for a state laitdfiil pertnR incomplete. The effect of the
{ 7 July 1992 aplnion of the fRortlt CaroUna Court of Appeals is to make the County's application complete orrae agaht.
i
~'~ ett appAcant Is dissatlsfled wkh the Zoning Administrator's dedsion, the appUcant may appeal 6o tdre Board of Adjustment
2]~Wa~unow address t3te important issue of the fadal mrsstitutirmailry of Sedfon 3124, entitled [**'e212 "Sarsitary tarrdfig," of the
r'g County makng ordinance es K t8latas to a provision that allows the Charlotte-Meddenburg Zoning Administrator ZD
approve the permit appficadons filed by the County.
Pfaintifts contend that the MedderlbUrq County zoning ordinance violates the ma• p~.~ da~+e2 of the ~rJUg~ttt arrsgg_mnene or me
t a+i~d Batas ConstlE~ won becaust the parson who determines whether the pennih in quest4on t9 Issued ~ biased in fiavar of the
appAcant by reason of his employment. Ws disagree.
~. tDUe process requlremarrts mandate ttrat certain quaswlud[cial zcntrrg dedsions comply with ail fair ti9ai standards when thetc are
made. However, 51Kf1 mmpltanCB Is not segr,dred for administrative [*S07] mntng dedsions. tlye must, d-etetore, determine into
wMch ~9or'Y the zoning decision ealkd tar here tabs.
[*rtf312] ~+Zoring derdsians are typically charaderized as being in one ~ fbur differerrt categories - IegLlative, advisory, quasi-
judlda4 and administrative. In this case, the question Is whether the issuance of a pemMt tar a landfill as a permitted use with
prescribed mndiKons is property eharatterized as a quasi-judi4tal decision or as an administrative [***22] zoning declston.
+u°rIn making quasf~irdidal dedaions, the dedsionmatcers must "investigate facts, or ascertain ttte existence of fads, hold hearings,
weigfi evidence, and draw candusioor from them, as a basis for ttietr ofRcial adlon, and m exercise disvedon of a gta9dal nature.'
6fadc~ taw Dkdona-Y 1245 (fait ed. 19SO). In the zoning context, titese quasi-judkiat dedsions involve the appikatSmr of mnin4
policies to indtviduai ptuations, such as variances, spatial and mnr~i~rsal use permits, and appeals of administrative deterrrslnations.
firrrr~ elf & Rg~Q~ Ce v ~ rd ~f ~ -'t n Ae N d.C4 2~~ ~.9 2 Q f La74I; ?Arrn."J V. ~tYl of Ad!/rM!- Z~J Po.G 478.
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~{~ ~_~ 879 t3~6aj- TI>ese dec~tons involve two key ekmatts: the finding of facet regarding the spedfic proposal and ti4e
exerctSe Of some dlsattion in~ applying the standards of the ordinance.
AdrrrRnisfiaatlve decisions are routine, nondiscretionary zantng ord?f4ance implemerrCation, matters, canted out by the staff.
lrxdttding issuance of p~n~ for Permimed uses. Ph1tRp P. Green, ]r., Legal ResparrstblAtk; [+~**23] of the Local Zon4-g
.4dm&Nstrator in North C,arnltna 3t) (2d ed.1987). In generai, the zorNng administrator ie a purely admintstrative or ministerial agent
fotiowhg the literal ptaviatons oP the ordinance. The zonhig
adndnistrabor may weft engage to some fact fin>~ng, as in makk4S ~+ indfiat debermk4afion as to a twrroonforrning uss 4vas in
extuenoe at the time a inning provistoit was adopted. DrnelFv_ crev~am• 221 N_G as'-,,an s.E.Z '{gyp t oa9S. But, in state
Irrstanoes, this involves determining objedlfve facts that do not involve an element of discretion.
't'he dfstl4c'lion i& important bocause due requ{rements far gtiast~udklaf zoning decNlons fiandate drat alt fair trial
standards ba abswved when these decisions are made.'t'his dudes an evidentiary hearing wRh the right of the panties bo offer
evidence; cross-examine adverse wiirresses;. fr>Specl dogrments; have sworn testimony; and have wi~tett findings of fact supported
by ~nPe~nt. rsgflgy sut~ntisl, and material evidence, ttr~tilrt~ $.8f~ttS ~. *. t3ea~ of Afdermn_n. 284 nf_c at 470.20z
e ~,~~; [***24] sae gerteraNy DBVId W. Owen3, zonng ff~rings: JGrowing yYhltxr auks m lipply, Popular Governmart,
Spring 1993, at 28. eY contrast, an adminiat+ative inning ded~ori Is made wittiouk a heaNr-g at all, with the staff rr>arriber reviewing
an appfiration to determine if K is wmptete and wh~xlvr R compiles with objective standards set forth in the zoning ordinance.
Early zoning ordinances established dtstr3chs In width spedfied fated uses were eittrer perrMtted or prohibited. However, iE s430Ii
be®me apparent that adrltional uses might be appropriate wttMn a particular toning.dtsbict under certain cirwn>stanrxa• These
add&[ohal uses -- variously t~rtted "special v&es," "oonditlonal uses," or "spacial exoapt3ons" -are specified In the inning ordinance
along with the standards for determining when ttrey may be allowed. ttobert M. Anderson, Arrterlcan Lew ofZorrbrQ 3d g Z1.oi
(1~)•
~~A spedal exc~tiat within this meaning of a zoning ordkiarice Is are which is expn43ssly permiCted in a given zgne
upon proof that certain facts and c~ncltions detailed in the ordinance ¢x>st. It k 9rar4ted try the boats, after a public
hearhg, upon a finding that the specified condttians have been [***?5] sattsfied. .
standards for the decision are set forth in the
[*SD9l Further, ~xz*quaN-judicial SPA use Permit ded~orw may not be a~i9ned to the zpnfng adminisGator. ilre zoning
enabling statutes a~w spaniel and conditional are petm~ decisions to be made by tfie'board of adjustment or the governing board_
fJ_C.G.S. f§ i53A-340 (199i),1fipA-381(1987). •C.G_ ~,153A.346 and ~:~$$ furd-er slow tiffs duties afthe board of
adJustment M bt assigned to a "Planning agency." ~'~A "planning agency" Is defir-ed by !ll.~ Scs• ->: t;?s__szi
An agency created or de~gnabed pursuant to tl4i5 section may ir-dude but shell rat be Umited to one of mac of the
fo8owing, with any staA` that tits board at commissioners considers appropNate:
(1) A pbnning board or commission of any size (not less tlran tlu4r8 nrembars} or cce4pOSltion considet'ed
appropriate, organized in any manner tanddered appropriate;
(Z) A joint planning board . _ _ ,
iY C.G.a [**_3'i &„~53a-~?~, para. 2 (arnpha5ls added). (N S„Sz.SSt'=6Si,A-;61 defines "p~nn~g agency' in wb#araiat[y simtiar
[anguege.) Thus, -~~while j~S r. ~$-.1~1 gtv~ local govemmerrt corls{deraWe latitude, that tagtuda does not extend far
enough W aNow the des[gnation of the inning administrator in~vidually to constitute a "planning agency" for tttta purpose of makbsg
spedai and oondRlonai use penrdt dedsions, ~sasWhite N.C.C.„G. s6 ~ 53A-4 and lixQB~ mandate that grants of augiarly bo los~i
governmerrts be tNOadly inter~e6ad. zoning autisaity wnnat be exerdsed in a manner contrary M ti4e expr~ Provisions of the
zoning enabling authority. ~
(FOOTNOTES
~ e There is ianguage in the Jed(sorr case regarding delegation of special use permits: "The legWeGve body may confer upon an
;administrative offloet; or board, the authority ixt determine whetirer the specified tlona do, in fbGt, exist ... '275 N.C. at
i ~ ~, + 66 sus, In that case, however, the deUsion tied been deiegabed to the board of ac~ustmetrt. so a delegation to a
: staff member was not betort the court. Also, in that case, rile Standards bo Ue met were (with the exceptiar of the one standard
i invalidated by the cowl) objective facts that involved no discretion;
[***88~ Therefore, a aiticai quesYon for this case is wtretls~ this degstat to permit a sanitary iandfitl should be dtaractdized as a
quasi-jrudclal derision or as an administrative zoning dec}~on. Since the deds~rt was made by the Zoning Administrator alone,
[*51t1j witiiout following the n4andate far a fidi evtdecWary hearing. it cannot stand as a quasi-iudtdat dedslan.
Some of the confusion In this case ES semantic. The Meddenburg t„o4nrsty zartng ordinance atone point treated sanHary iandfils as
quest judicial special use permits. However, the 1 May i989 amendment in the zoning ordinance puriwrted to piece these in an
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~s~Speaal and condidonei ust permk dec{siorrs are quart-iudicial zoning de5lsiorrs- "When a board of aldermen, a dty eau, or
zorrkrg board gars evidence to determine [*e*g8~ the exisoence of facts and conditions upon which the ordinance expressly
. sutitorixes ~ to tsSUt a spedat use permtr, it acts in a quas€3rrdldal capacRy." H ,nrbh. [NI 8! 1teNn nn v Searrn etaleermen. 28a
"J C ~ 469. 2t~,~,t? Zdslt 6-~
.4' 'PStmh ~ 7'! R ~t}ta ~ arvrisl nrP na...,~~ ssrle nn„r,1•tr
N o„o u nt l t l
itttenrsediabe sabegpry between a standard "permitted use' and a starsdatd "spade) use." Sasdtaty IandfiRs, along with quarries and
demoifliWt iartdfdis, were made permRCed uses in all zoning distrEds subject to a sefies of'deveiopment standards." The language
used to dest~lbe this hrtanrtedk~te sibeation -- •uses by right subject to spedaE requlrement~" and "uses under prescribed Conditions" -
is not to be confused wilt a spedat use Permit and a conditional use pemslt. It is not tE-e'terms used by the ottiirrance to desaibe
these permfls tllat has legal s[gnifisartoe; [r`ti*29] k is whet3ter the nahxe of the dttddon to be made is, in tact, quasFjudiciai or
administrative.
The 2 May 1989 amendment W Section 3124 of the l~leckknbuty County zonEt~ [**Sir4] oMinance eseabRshed stx cors~tiorss that
must be ilret prior to issuance of a zoning permit for a sankary landt9fl. Several of theme are o6t1ectfve Standards that can reasonably
be appped by the Zoning A~In}strabor, indudding the Yid required, ttner-ing, hours of aperatton, , and notion of
adjolninp property owners. A cksser question is presentaed by Section 3224.2 regarding redamat~n re~.sistxnents. This includes an
otsjecgve fhlding - whetfier the aniidpated fltttrre tsse proposed Dy the appflwnt ~ eonsisterst with fire county~s end tsse plan - as
well as s d~ermination that the cost estlrrta0es for redamatbst era "re~abls.~"The Cotx-ty Board of Commissioners determined
>hat this was an objadive fining Zl>at ootdd reasonably be mach by fire Zoning Admisslsq•aRor, with file assistance of the Director of
p~P1ne if ne~ry. ~ Thvs, it was rat subjected to the evidentiary hearing requiremerk imposed for spedai use Petmk
'FOOTNOTES .~~ .. -. ....__ .__._._.. _._ _.. .,.___. _...._.- _ _ ....
r ~zTFA zotttng ortlinatu3e Is presstmed va4d, and the courts will defer m the govemtng boarcl's laglstative judgment unless K is
dearly unreasonable or an abuse of dis»rratlon. • ~,~.~~.
~ ?_14 N_[ 3 ~9T SG.}. 7061 a~Eef dISmJS3ad, .~~,s..~.(~9~1.5~se a180 tag of Eta Ya lg~ag~Y r ~3~S~o
[#**$g] [3] Having debat7rtined that tins Is, in fact, an adminlstYatlve zoning derision that the Zan#is~ Adnrintstrator could properly
rrtake, ['+&lk] we now address the question of whether an irnperrntssible cortRizt of interest is tabled because the applicant far the
permit Is Meddanburg County. Sea gersaratty, David yN. chuens. Con/!!ds of Interrst -n caod-tire nla,ragernenr ~FO~ (i9so).
At the outset„ it ~ important to note that the applicant ht this case is Medkenburg County atone, and the zoning administrator is the
Ghaf'TOtoe-Madcienburg Zoning Administrator and as such h invo{ved wkh admtnistrdgon of zoning for Mecklenburg County and six
mutddpatltleF within t{te'county,
*Due prows resquls'as an hnpasdia{ dtu~}gnmaker. Yltith IegistaWe zotang dedslons, an etecbed offfdai wtlh a dkect and
substantial flnartt#ai interest in a aning derision may not •part{tipate In malting that derision. M.C.C.~,,S by t.S~A ee (I991j,164A-75
(1487). ~ YVhare tilers is a speclfle, substangal, and readfly identifiable finandai impact on a memberr, nonpartidpapon.is regesrexi.
Additlonai considarafions beyond theses fhtangal Irsterests requhe nonpactidpatton in quasE Judicial zoning daebiorts. I"#'x'31] A
fixesd opinion that is not suse~stible to change rosy wetE eonstltute impermisslbie bias, as wifl undisdos~ ar parse commun(catksn or a
close familial or business reladvnshlD ~ an applicant. ~+ v ^~ Qt'td ~rtllra, ~?SzN.~.. ~. ~4~ ~..~~~ ~.~(3°~?: Le.UrhBtt
v. N C. Sthao/ of lire Alts, 80 N.r__ Ann. 3~, 342 5.E.2d Qi4. dEs~ rEV. dented, '{1~ N 07 $ S.E.2d f362 fib},
FOOTNOTES ..... .. .. ... .. .._...... .......I
S In K~nt-a9 v St~arei, t7R ti.G 461. 101 S_E_ i5 (14191. a case imioWtng a pay raise for themselves Voted Ors by a rAy courxtl, t
j rite Court held, ~s"t"fhe public pocky of the State, found in the staltr}brs and judkttal deci~ons, has been pronounced against
~ permittMsg one to sk in judgmatC oil his own cause, or to act on a trsauer affecting the pubic when he has a daect peamiary
(lnterast, and this is a prindpie of the cortunon law which has existed for hundrttds of years.' Id_ at 4 , 101 s.>= at ? 6: ses
:9w1e-aaY bavid W. , s.:on/1lds oflttten?St in land-(fse Menagetnent Daatsio»s (149Cj.
....__. __..t..... ....._......._. ... ~_.._ .. _ _.._. ..._.~_. .._..Y._... ...,_....__.__. .. __..._.........._.. ......
[**'~32] These oonsiderat{orw are {esS Ukaely to Dome into play wher- administrative zoning dedsksna are made strxe these Involve
the detarmltation of objectlva !$dB without an element of disrJ'etton. Further, fire zoning esnabNrsg statutrs provide for a de now
hearing before the board of adjustmerd If acs applicant or person aQgriaved oonte5ts "any order, requlremers~ dedsian, ~
determination made by an adminstrative ofiidel' charged wkh zoning tmpterstentation. p1.Gta-S. $g s~s~a-345th). j~~~?tnl. ~
TAbsant a dwwing ~ undue ~,*Si2l influ~nce,'the [*w815t~ fact that an appttcatipn is made by an enipto}Fing unit aF
government does not M and of itself mrrsiftvte lmpermiss{bie bias for admiNstrative caning dedsions.
f'OOTNOTES
s Examples of conduct that otita' courts have held to be undue influence )n tiuasi~dldal zoning detemrNsations lnc{ude: ~.iC, i
S.Yr~~r, 7~ F=~.ron. 92Z(n.C. 19641 (improper for high govermnant aENdais to oDntact subordinate board rnesnbers Ixior to
dedsk-n); a r~ey,11.1'sk'h Aplt~..~3Fi1..'-¢e ro_W_~~+ aag 14asal (improper for goverrdr~ board srrember to appear before .
zoning board ifsey appo&tt); i+bt.~ v. Aeard nFA.-~+uslrrreAt. a? N i 3zs 20D a2d 6n~ tt9sa~ (improper for mayor who appointed i
board ct adjtsstmertt to appear before board as atxorrsey). axsz~A key dement in th[s debzsmination is fire degree of disrnegon .
present In the deidtdon, which is also a key factor in tits zharadgrtratlon of a derision as qudsiyudidai or administrative. °the
g the range of discrefion in exercising that autlarity, the 9r~ter must be the concern that the person exe:rdskt9 k be free of
~k~tirtg personal krtesrestt:...." ~Y v. Beard oF~c~te+~t of MorerlAfi7o 2±3 N? ,sj~t~ f 09 C,1,~. ~iR a_7.d spa. s37
[***397 This Coutt has previously held that:
K^a~fhen a stabste, or ordinestoe, provides tltat a type of structure may not be•eretlad in a spesc~fed area, exoeptthat
such strutxstre may be eredsd therein when certain contBtiorss exist, one her a rlgltt, under the statute or ardttanoe, to
erect such structure upon a showing that'tht speeified'eondldans do exist, The legist~ive body may torsfer upon an
adrNstlstrative officer, or board, the auttrottty ip determslrue whettrer the specified otmdltlorrs do, in fact. exist and may .
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L'~1?AM;fI . ~7 RP.Q771{C ~ QT~P.R7A~ IYQP nAT711~{ T[!IO fr~lYn{{r
Paov3 tt) of if) ~(,~
~re a permit from such otfkxr, ar hoard, to be Issued when rte or it so detetrrrines, as a furti-ar t:oruJigon preoedetlt to
tie right tD erect such structure in such eras, Such ptmnft is not one for a variance ar departure from Lhe statute or
ordinance, but Is Lha retagaiUo0cc~~ of a right estabtfsfled by the statute ar ordinance itself. Consequently, tfie delegatiarr to
suds affker, or beard, of authority to make such determination as to the existence or rmnextstence of the speaFEed
conditions it not a delegation of the legislative poster to trraloe law. ,
?~dtsnn v Barr! efAdfitsrma.,~, 275 ~ ~~:16~~66 5 E Z 78 BS fill
'ills [*as~7 dar3sian of the patid of the Court oP Appeals below held that the same logic that pemnits the County Commisslontrs to
delegate'autf>nrtty to the ZoNnq AdmFnistrator to issue special use permits also supports our dads>on that rile Comrntssioners have
auti~or9ty bo agow the Zonhtg AdminESgator to issue permits [*gig7 for "uses 17y right Subjed: to special requtremerns.° We agreo.
LIlce rile panel below, we hold that Crmilty Cwrlmissionars have authority to allanv the Zonkrg Admintstratvr ba issue permits for "uses
by right subject to spedal requirernerrts.' .
Surnrr>ary .
We assume standing of the plaintiffs atguenrla. We hold that the 3 Baguet f~988 judgment in the earlier utigatiort has no eEIect on tine
present litigation. We'furthar hold that jhe 1 May 1989 anterrdrnent to the zoning ordlnaACe oonstikutes a vaUd legislative prerogative
tp dlarlge the SanRarY IandtUl use from a 'special rtes permit" category oo wise by right under presuibeit sondltions" category and '
that Section 3124 of the Mexidentwrg tbunLy zoning orrUnarlca, which Mows the Zontng Administrator to approve tits Count's
permit app>tcation far the sitlnq of a landtlll, is constihrtiona] and tawful on Its fay. The decision [•**3t'z7 of the Court of Appeals is
aflirtrled.
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httv://www.lacis.ootnhresearr~fretfieve? m=$544c535004351da?e1ceb9~efaQ69a5&doc~u... 3/6/2008
ttachment Four (4): JPA review comments from the .
owns of Carrboro and Chapel Hill
TOWN OF CARRBORO
~ NO)2rH CAROLINA
TRANSMITTAL Pl.ANN1N6 DEPARTMENT
DELIVI~ItED yTA: [~ HAND [~ MAIL ^ FAX ®B.~IIAIL
To: Perdlta Holtz
From: Patricia J. McGuire, Planning Administrator
Date: August $, 2008
Subject: Ana:endment to .Orange County 7aning Ordinance -Large Ground
Absarptfon Systems and AppIit~bility to Orange County Government
Facilities and Office Buildings. '
Thank you.far sending this amendment for review. Canfioro staffhas coxrrpleted its
review of this staff memo and ordinance (attached] and encourages that Orange
County's Zoning Ordinance ensure that County fac~ities and office buildings excluded
from this permit requirement are subject to careful review and the need for compliance
with all other operating principles and policies, development regulations and standards.
Please don't hesitate to let me Iaww if you need any other information.
Attachment
Ec: Roy WiIliford, Planning Director
Planr~rg Department. Planning DYtcfon
301 West McN1 Street. Carrboro, AIC 27510 • (9i 9) $IS-7327 • FAX (919) 918.4454 . TOD 1-tS00.82B-7653
AN EQUAL OPPO}tTUMZY EMPLOYER
/~.~
ORANGE COUNTY PLANNING 8~ INSPECTIONS D1=PARTMEM'
Craig N. Benedict, AICP, Direetar
MEMOI7ANDUM '
To: Roger L Stana'i, Taws of Chapel hill Manager
J.B. Culpepper, Town of Chapel Hil! Planning Dirsctar
Steven Stewart, Town of Carroboro Manager
Roy Wlfliford, Town of Cattboro Planning Dired~or
From~4~erdiu Holtz, Punning Systems Coordinator
Hate: June 25,2008
Subject: Orange County Zoning Ordinanca7ext Amendment
TRANSiii11'lTAL DELNERED VIA EMA1L AND LISPS
An amendment to the County's Zoning Ord's~ance has been proposed. The amenament is
descn'b~ below:
To amend Article Six (8) Application of Dimensional Requirements,
spedf~caliy Section 6.20 and 620.1 Large Ground Absorptian System
(3,E10EI gallons per day} and Package Treatment Plants Prohibited l n
AR Districts and Rural Buffer Districts of the Orange County Zoning
Orainanoe to adci language darifying the review and approve! of County
projects proposing large ground a~orption systems and/or package
treatment fadlitus.
'the Background section below provides additional information regarding this issue:
BACKGROUND: While completing work on several County development projects, in
preparation for issuing a Zoning Corr~liance Permit, staff deterrn€ned that there is a
potential ~ problem resulting from the need to require County projects that are
proposing to have a large ground absarptian septic system to obtain a Special Use Permit
(hereafter'SUP') as part of the Zoning Complance Permit process per Section 620 and
6.20.1 of the Ordinance.
.. •w~••.. ..
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Administration `~' ~ +~ 306E Revere Road
(91 S) 245-2875 ~ ~ ~ P O Box 8181
(s19) 644-3002(FAX) Hilisbororagh,
www.coorange.nc.us +~~ ~,Y,.~ North Caratina, 27278
~tiS,l •' V
~t1
•S~~
section 13.20.1 of the Ordinance reads as folicwvs:
Ground abso-pffon systems wifh a design capacify of 3,000 gallons per day or
mote and package ttrsatmenf planfs for sanitary sewage disposal are expressly
prohlbifed Fn the AR distrkts and Rural i3uif+erDistricis asshown in the adopted
Comprehensive Plan exceptas maybe approveiffhrough a Special Use Permit
or a Planned Development DisMcf.
in consultation with the Attorney's office, staff has determined that there is a major issue
w~h respect to the County developing a land use requiring the issuance of a SUP.
Speaficafiy, the issues are:
1. There is a concern over the need to make certain findings of fact during
the review of a SUP project, speaficaliy that the responsible board has
made an impartial decision. Recent court cases have questioned the
legal ability of a governing body m issue itself a SUP as there is a
conc~m over the ability of the members to make an unbiased decision on
the evidence presented at tfiequasi-judical hearing,
2 From a practical standpoint the BOCC and the Board of Adjustment, the
two (2j boards that are responsible for reviewing and approving SUP
projects, are opened up to critiasm on their ability to conduk~ a fair
hearing acid render an impartial decision due to the Courrty, or a County
department, being the applicant,
3. The incestuous nature of the SUP permitting process creates a legal
conundrum that is ha~tng to be corrected State wkle.
In an effort to address this problem, staff is proposing the following:
1. Amending Section 6.20.9 to clarity that County projects are not required
to obtain a SUP when a large ground absorption septic system, or a
package treatment plant, is proposed to support a proposed land use
Staff does not believe the County ever intended for public projects to obtain a SUP •weere
a large ground absorption system was proposed. Through this amendment the County
avoids the legal conundrum of having to review, act upon, and approve County projects-
fhroughthe quasi judicial prodess. - •,
tt should be noted the proposes change will not affect a property owner's ability to develop a
ground absorption system that has a design capacity over 3,000 gallons per day within the
Agricultural Residenfrai (AR) a Rural Buffer (RBj zoning d'~stricts upon issuance of a Speaat
Use Permit or Planned Deveioprnent approval. The amendment will, however, nat require
the Countyto obtain such approvals.
This amendment is necessaryto address ~ permitting and approval of County projects due
to recent changes in State regulations. -
The full text of the draft ordinance tha# would, ~ adopted, ,amend fhe Gount~'s 7Anmg
Ordinance is attac~ted. Please submit any comments in relation to the consistency of this
amendment with the Joint Planning Area land Use Plan in writing on or before August ~
2008. Should you anticipate arty problem with the oompleijon of your review prior to that
date, please notify us as soon as possible. We fook forward to receiving your wrnrr~rrts, and
appreciate y~ attention. If you have any~questions ar need additional information, don't
hesitate to caB.
Attachment
~cc: Trish McC3uire
_ I ~: Fs
:4Yt
;~
.: ,..
a~
N _. _,,
/ ~ ~ OF
~~ ~
~~ae~.N~;; ,
yuiy 1, 2008
Ms. Perdita Holtz
Planning Systems Coordinator
Orange County Planning Department
PO Bo~c 8181
Hillsborough, NC 27278
. PLANNING
Town of Chapel I-Iill
4051v1artin Luther King Jr. Blvd.
Chapel Hill, NC 27514
pborra (919) 9b8-2728 fau (919) 9b9-?A14
dvww.tawnofchapelhill.org
Subject: Courtesy Review Comments on proposed Zoning Ordinance Amendmen#
. regarding Ground Absorption Systems and Package Plants
Dear Ms. Holtz:
Thank you for the opportunity to review the proposed zoning ordinance amendment regarding
ground absorption systems and package plants for Orange County government development
proposals. We do not have any comments on the proposed ordinance amendment as it relates to
the 3oint Planning Agreement.
Should you have any questions, please do not hesitate to call me at (919) 968-2728.
Regards
1~
~~
Gene Poveromo .
Development Manager
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Excerpt of Minutes
Approved 9/3/08
MINUTES
ORANGE COUNTY PLANNING BOARD
JULY 9, 2008
REGULAR MEETING
MEMBERS PRESENT: Jay Bryan, Chapel Hill Representative {Chair}; Craufurd Goodwin, Hillsborough Representative;
Michelle Kempinski, Cedar Grove Township At-Large; Larry Wright, Cedar Grove Township At Large; Renee A.
Price, Hillsborough Township At Large (Vice Chair}; Brian CrawFord, Ena Township At-Large; Joel Forrest Knight,
Little River Representative; Bernadette Pelissier, Bingham Township; Jeffrey Schmitt, Cedar Grove Township At
Large
MEMBERS ABSENT: Judith Wegner, Bingham Township At-Large
STAFF PRESENT: Craig Benedict, Planning Director, Tam Alfieri, Comprehensive Planning Supervisor; Michael
Harvey, Planner Ii;
AGENDA ITEM 8: ZONING ORDINANCE AMENDMENT: ARTICLE 6, SECT[ON fi.20.1 LARGE GROUND ABSORPTION
SYSTEM (3,000 GALLONS PER DAY} AND PACKAGE TREATMENT PLANTS PROHIBITED 1N AR
DISTRICTS AND RURAL BUFFER
a) To consider a recommendafion fo the BOCC regarding this proposed amendment heard
of fhe May 19, 2008 QPH
Presenter: Michael Harvey, Planner II
Michael Harvey: Reviewed Amendment.
Renee Price: What body will have oversight of the County does?
Michael Harvey: They would have to go through the normal permitting process as other individual would which
means State, Health Department Regulations, Orange County Health Department Regulations and local srte plan
submission requirements would sti11 need to be met but would not have to go through the Special Use Pemzitfing
process with the Board of County Commissioners or the Board of Adjustment would have to issues a Special Use
Permit. The majority of large ground absorption systems have to be a Class Special Use Permit.
Renee Price: Does that allow or disallow any public comment?
Michael Harvey: It would not allow any pubi'~ comment because it is not a Special Use Permit process but it will go
through the normal site plan review as most County projects do now.
Renee Price: So you could move next door to someone and they can't abject.
Michael Harvey: For County government projects only. Everything else has to get a Special Use Permit because
that is the requirement.
Jeffrey Schmitt: Not having read the court's decision, did our attorney explain the concern the court case came with,
saying there is a legal dilemma with the County approving itself a Special Use Permit?
Michael Harvey: The legal dilemma is that you have the gavemir~ body issuing itself a Special Use Permit. We
included the term incestuous nature of the permit process that creates concern for staff and the attorney's office
Excerpt of Minutes `~
Approved 9/3/08
especially after the court ruling that stipulates the County or government cannot issue itself Special Use Permit.
When you look at the findings that have to be made there is concern that you cannot guarantee an impartial hearing.
Jeffrey Schmitt: So the solution is that we will eliminate having to get the Special Use Permit?
Michael Harvey: They still have to go through a similar permitting process.
Jeffrey Schmitt: It doesn't seem to me to address the concern.
Michael Harvey: Unfortunately, as with a majority of County projects, it ks the same as any simple site plan. There is
rrot ability on a permitted land use to get any type of public comment either. In this particular instance, it has to go
through the normal permitting process. It cannot go through the Special Use Permitting process.
Michelle Kempinski: At least the Special Use Permit process, being incestuous or not, for the County, requires a
publ'~ hearing. What is the difference between going to through the Special Use Process and the County approving
its own project versus the County just doing it anyway without any public hearing at all?
Michael Harvey: The only reason the County has to go through any heightened level permit review is because you
have a septic tank over 3,000 gallons. The permit or project in and of itself is permitted; let's say Northern Human
Services Cen#er, which was done through normal site plan approval under Article14 of the Zoning Ordinance. The
only reason that project would have gone before the County is because it has over a 3,000 gallon septic system that
is now being proposed. The fact that it has an aver 3;000 capacity septic system does not, from the attorney's
standpoint and from staffs standpoint, alter the nature of the process. It creates a dilemma for us if we can't comply
with recent case law and stilt issue ourselves a permit. If we take it through the normal process where the same
standard has to be met, if the concern there is just not an opportunity for public comment, there is rwt normal
opportunity for public comment on 99% of the County projects.
Michelle Kempinski: Not schools?
Michael Harvey. School are Special Use Permit because it is the Orange County Board of Education, not the
County itself. That comment was brought up but you are dealing with two different entities.
Michelle Kempinski: Because the library on the north side of Orange County is no longer a school, that is why it
would not go through the Special Use Permit.
Renee Price: Who would actually do the regu{sting? This would seem to allow the County to do whatever it wanted
with no oversight. .
Michael Harvey: The County has the same oversight as any other individual proposing a development within the
County. They sti[I have to go through the permitting process. Unfortunately, the problem is that the County cannot
issue itself a Special Use Permit
Renee Price: You are saying "do what you want to do.°
Michae{ Harvey: No. I am saying that it cannot go through the Special Use Permitting process. They still need
Environmental Health approval, state approval and local site plan approval under Article 14 of the Zoning Ordinance.
Renee Price: What level of intervention would the state have?
Michael Harvey: Most normal large scale septic systems, the state has to issue the permit along witty state and local
Health Departments.
2
~~
Excerpt of Minutes
Approved 9/3/08
Renee Price: The Health Department that is part of the County/?
Michael Harvey: Yes. It is the Orange County Health Department that enforces the state ruses.
Brian Crawford: My concern is that it sounds like that it is putting the County on an uneven playing field with the rest
of the devebpers in the County whereas the Board of County Commissioners can say to another devebper, you
can't do that. In this Instance, we are saying, that doesn't apply to us and we can do that and there is no one that
can say no to the Board of Cour-ty Commissioners based on this policy.
Mid~ael Harvey: Let me make two corrections to your statement. It st~l has to go through the similar permitting
process as far as getting a permit for both bcal and state agencies to allow the system to be devebped as any other
developer. The second is the issue the permitting process. Unfortunately, the permitting process, based on recent
case law, states that the County cannot issue itself a Speaal Use Permit. Making those findings and taking it through
that process is something we can no longer do.
Brian Crawford: I don't think that as the intent of the case. I am really uncomfortable without having an analysis of
the case decision or what the court is saying. The court may have said that we have to come• up with another
mechanism to have the County approve their projects.
N~chael Harvey: I can tell you from my own personal review of the case that is not the case. If you would rather
have us comment in an expanded memorandum that can certainly be a recommendation.
Jeffrey Schmitt: Michelle has an excellent point and that is the public will not get to comment on this. Is that right?
Michael Harvey: Yes.
Jeffrey Schmitt: I don't think that is right. Notwithstanding, whether or not the County cannot issue itself a permit, I
think tl~e public should still have its hearing and the Board of County Commissioners need to know the concerns of
their constituents even if it does not impact the ability of the County to proceed this. I think we are short changing the
ability of the people of this county to express their opinions. This was participated by the change in the septic field up
at the Northern Human Services Center with the new park, is that con~eci?
Michael Harvey: Yes. That is one of the geneses of this issue.
Jay Bryan: It appears to be a pof'~cy that will have an affect on others.
M'~chael Harvey: This will have an impact on any County project proposing over a 3,000 gallon system. This is only
going to impact County projects under the County's planning jurisdiction proposing over 3,000 gallon septic systems.
There are County projects within municipalities or on sewer system that this will not have an impact on whatsoever.
Judith Wegner. I agree with Michelle and Jeff, I would like to see pubfic comment. You could make a policy.that we
would require public comments for such a proposal. It is not a Special Use Permit but we require by policy that you
wi8 go through a certain process with the public. That will address some of the questions.
Michael Harvey: I personally think that if the Board would tike to make that recommendaton to the Board of County
Commissioners, I think it is reasonable.
Renee Price: But then again what would be menu, people can't sue, if they're in opposition what work or body does
that go before? The State body or what?
3
Excerpt of Minutes
Approved 9/3/08
Jay Bryan: What if we refer this back to staff and asked them to prepare a proposal as to how to include public
comment in the permitting process whether it is for the Board of County Commissioners or the staff, how that would
be weighted. I think we also rid a description of the case law.
Michael Harvey: I can provide something bat I would rather have more direction on what you are looking for.
Jay Bryan: You have heard the idea that we have in the permitting process that there is a public hearing before the
Board of County Commissioners on these types of applications for the Board of County Commissioners to get input.
If the permitting process is such that staff is making the decision then how does that input get to the Board of County
Commissioners.
Jeffrey Schmitt: I think part of this hearing needs to be in a time horizon where the Board of County Commissioners
hearing the public, if there is a voice large enough, that could potentially impact their decision to purchase the
property andlor modify what ~s there. If the County is gone so far that this is defacto been approved then yes, the
comment made by Renee is sustainable in that we are not doing anything except giving the public a chance to be
upset and not doing anything. This needs to happen in such a time horizon that we could potentially influence the
decision of the Board of County Commissioners to not do something.
Brian Crawford: My issue is the issue of fairness. I am corrcemed that the Board of County Commissioners and the
Board of Adjustment, then the pmcess you are suggested addresses that fairness. Somehow we need to bring
fairness back into the system in the decision making process. If fairness is a hearing that the public can be up in
arms and say we don't want this to happen, then there has to be ability for the Board of County Commissioners to
back off that project.
Renee Price: The thing is Brian, if that didn't happen and they claimed eminent domain...
Michelle Kempinski: That is a different subject
Jay Bryan: Let's keep the issue to what we know. The issue of timing for such an opportunity.
Michael Harvey: The Planning Board would like to see some discussion about there being a type of public comment
for the Board of County Commissioners engaged in a project that may see a 4,000, 5,000 or 6,000 gallon septic
system. You would like to see a report and continue to discuss it.
Brian Crawford: I would like to understand the nature of the court case and what the court was saying.
Michelle Kempinski: Does everyone have a copy of the full Zoning Ordinance if we wanted to see all of Section 6 or
is that something we need to include with the amendment to see what the whose section says to have context for this
box of information.
Michael Harvey: We have provided how Article 6 Section 6.20.1 reads now. Article 6 is the Appiicat~on of
Dimensional Requirements arxi contains a variety of standards and some do not apply at all and some are separate.
Qend of item]]
4
Excerpt of Minutes
Approved 10/1/08
1 MINtlTES
Z ORANGE COUNTY PLANNING BOARD
3 SEPTEMBER 3, 2008
4 REGULAR MEETING
5
6 MEMBERS PRESENT: Renee A. Price, Hillsborough Township At Lange (Vice Chair}; Craufurd Goodwin, Hillsborough
7 Representative; Bernadette Pelissier, Bingham Township; Brian Crawford, Eno Township At-Large; Jcel Forrest
8 Knight, Little River Representative; Judith Wegner, Bingham Township At-Large; Larry Wright, Cedar Grove
9 Township At-Large
1Q
11 MEMBERS ABSENT: Jay Bryan, Chapel HIII Representative (Chair); Michelle Kempinski, Cedar Grove Township At
12 Large; Jeffrey Schmitt, Cedar Grove Township At Large; Cheeks Representative, Vacant; Eno Township, Vacant
13
14 STAFF PRESENT: Tom Alfieri, Comprehensive Planning Supervisor, Michael Harvey, AICP, Planner lt; Glenn Bowles,
15 .AICP, Planner II; Robert Davis, AICP, Planner lil; Tina Love, Administrative Assistant II
16
17 OTHER ATTENDEES: Rita Leadem, Representative for Comprehensive Plan Coalition; John Bugg, Applicant-The
1$ Forest at Little River
19
20 AGENDA ITEM 1: CALL TO ORDER AND ROLL CALL
21
22 AGENDA h'EM 10: ZONING ORDINANCE AMENDMENT: ART~LE 6, SECTION 6.20.1 LARGE GROUND ABSORPTION
23 SYSTEM (3,000 GALLONS PER DAY) AND PACKAGE TREATMENT PLANTS PROHIBITED IN AR
24 DISTRICTS AND RURAL BUFFER
25 To consider a recommendation to the Board of County Commissioners regarding this
26 proposed amendment heard at the May 19, 2008 Quarterly Public Hearing and discussed at
27 the July 9, 2008 Planning Board Meeting.
28
29 Presenter. Michael Harvey, Planner II
30
31 Michael Harvey: We began discussing this at the July meeting. Two planning board members had requested
32 documentation from the Attorney's office on why they believe, from a legal standpoint, the county can no longer issue
33 itself a Special Use Permit. I have provided you with what the Gounty Attorney had originally sent to Craig Benedict
34 as their rationale to begin the amendment process. Essentially, the County Attorney's office has determined; based
35 an recent court decisions, that it can no longer issue itself a Special Use Pem~it. This discussron was precipitated
36 from my denial of the site plan for the development of a 4,500 gallon per day waste water treatment system for the
37 Northern Human Service Park. Article 6 requires anything aver 3,000 gallons to obtain a Special Use Permit. I was
3$ informed, while I was technically correct, the County could not issue itself a Special Use Permit. We do have
39 comments from the Towns of Chapel Hiu and Carrboro. The Town of Chapel Hill has no comment and the Town of
40 Carrboro would like a guaranties that all county projects would go through some type of development review process.
41 This amendment stipulates that if it is a County project within the Agricultural Residential (AR) or Rural Buffer {RB}
42 Zoning District and proposes to have a septic system over 3,000 gallons per day, it does not have to get a Special
43 Use Permi# for the system. The project would still go through the normal site plan and approval of Article 14 of the
44 Zoning OMinance. The only speafic permitting process exempted as the result pf this amendment would be that the
45 County would no# have to seek an SUP for the septic system. In the previous meeting, there was a concern that a
46 private citizen would have to ga through the SUP process and the County would nat. I cannot address that problem.
47 Private citizens will still have the capability of applying for a permit to get a large ground absorption system per the
48 ordinance which requires an SUP.
49
50 Renee Price: The County would not be subject to any type of review or comment or checks and balances.
Excerpt of Minutes
Approved 10/1/08
51
52 Michael Harvey: County projects still have to receive site plan approval in accordance with Article Fourteen (14} of
53 the Zoning Ordinance but to be fair, the majority of the County projects don't have to go through a public approval
54 process. We still have to submit documentation to plannfig partners ff it in the Joint Planning Area Agreement to
55 Chapel Hill and Carrboro, ut1ities companies, DOT, the State and we would be issuing a Zoning Compliance Permit.
56 With regards to this, it would only be Environmental Health.
57
58 Brian Crawford: I read Geoffs Letter.
59
60 Michael Harvey: There was a question at the last meeting of if there could be an amendment to this that we require
61 the County to adf~ere to the design standards specifications and relevant information contained in the SUP.
62
63 .Renee Price: That would just go through staff review.
64
65 Judith Wegner. Wouldn't there be a staff review anyway if there were a proposal to put a facility there?
66
67 Michael Harvey: Yes.
68
69 Judith Wegner: What would be different if there were an ordinance change?
70
71 Michae! Harvey: The concem was essentially there was specific design criteria referenced in Article 8 (Special Use
72 Provisions}. The concern is that if a private citizen is required to go through these steps, you should make the
73 County go through, even though they may not go through the SUP process. That may go beyond what local or state
74 would require as far as submittal requirements.
75
76 Brian Crawford: But in same cases it may tie their hands in that it would not have to go through the 5UP process.
77
78 Michael Harvey: It may have to supply the information. If this any other project than a County project and it
79 proposes a septic system of aver 3,000 then it would need to go through the SUP process.
80
81 Lang Wright; I understand the County is high profile so if this fails i# will be much more at stake.
82
83 Michael Harvey: It should not mafter who the applicant i5. The County Attorney has determined that there is a
84 procedural issue with the Courity issuing itsekf a SUP because of the potential ramifications of being able to justify fair
85 and impartial hearings.
86
87 Larry Wright: It seems it is adding more to an agenda that is window dressing.
88
89 Michael Harvey: I have been given an opinion and that is that I cannot hold up a County project for this reason but I
90 will not and cannot put my name of a paper authorizing a project because this is in the ordinance.
91
92 Joel Knight: The County put this ordinance about the SUP requirement in the first place. it seems the County has
93 put their selves in a comer. I think the way ft should be done is that they may not have to get an SUP but they have
94 _ to do afi the steps an individual has to do in the same way. Any requirements placed on an individual citizen should
95 apply to the County.
96
97 Brian Crawford: I agree, i second that.
98
99 Judith Wegner. I have to disagree. The County is on the hook because the County has all the expertise in house on
100 all this stuff. The County reviewed these to be a private party is th be sure that there's nothing getting slid by the
32
Excerpt of Minutes
Approved 10/1/08
33
1 O 1 private party but if we've got the review within the County before doing this, we'll have represent who can get allowed
102 if they don't do the job right. I'm convinced by what Geoff said that you can't have an SUP because you can't get the
103 quasi judicial deliberation when it's your own project at stake. This may be a policy review issue. It seems to me it
104 would be appropriate for the Board of County Commissioners to have an internal review. It seems there are other
105 ways to do this.
106
107 Brian Crawford: It creates the appearance by the citizens that Orange County has not played by the same rules.
108 Government changes and now we have a government that is friendly towards environmental issues and that may not
1.09 always be the same. I can image one day that we could have a Board of County Commissioners that would be
110 arbitrary about how we select a site so if there is any appearance that the county has two sets of rotes; I could see
111 that as a problem.
112
113 Judith Wegner. I# ft is in the ordinance, I don't understand who wilt enforce iL
114
115 Brian Crawford: At least the citizens wiEt be able to hold them accountable. The way it is now, the citizens have to
116 say now you get th do what you want because you are the Board of County Commissioners.
117
118 Bernadette Pelissier. The whole issue of environmental responsibilities goals, part of the whose thrust behind that
119 was that the county should be a model. If you want the citizens 13o do things that are energy efficiency, water
120 efficient, etc. The county should be the first one to model this behavior.
121
122 Michael Harvey: Until the Comprehensive Plan is adopted and the Board of County Commissioners direct staff on
123 haw to implement these goals, we are not sure how that is going to be addressed. We have recommended adoption
124 of goals and objectives and we have existing goals and objectives but from an implementation standpoint, there have
125 been no direction from the Board of County Commissioners on haw #o address this issue.
126
127 Bernadette Pelissier. I was talking about the environmental responsibil'diestind goals.
128
129 Michael Harvey: I have no clue from an implementation standpoint because we have not been given direction.
130
131 Bernadette Pelissier: That answers that question.
132
133 Michael Harvey: The reason I brought up the Artic~ 8 issue was because the question posed to me at the last
134 meeting, could we require the county to adhere to the submittal requirements, as part of the normal site plan review.
135 My comment was that would at least address some of the concerns about the inconsistency of a submittal _process
136 and that would address that point. These projects still have to go through.
137
138 Zany Wright: I agree that the county should set the standard of the way this should be handled. Who is the one that
139 checks the checker?
140
141 Larry Wright: Right now, it is Environmental ~Heafth and the state to ensure the systems is insta{led adequately. If
142 you have a group of Board of County Commissioners that is not conducting themselves in accordance with the
143 wishes of the community, they are voted out of office.
144
145 Craufurd Goodwin: it seems we can recommend to the Board of County Commissioners and the County Manager
146 that the process be devised to replicate the process required of the public. How that is implemented, I don't think we
147 can decide around this table but we should recommend it.
148
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Approved 10/1/88
149 Michael Harvey: You would make a recommendation to approve or deny this and asked the Board of County
1 SO Commissioners direct the Manager's office, Planning, Health Department begin the process of establishing cohesive
151 and comprehensive policies that would essentially require the county to 9o through a similar process of review.
152
153 Craufurd Goodwin: Beautifully expressed.
154
155 Renee Price: The one other issue is oversight and who actually has the final signoff.
156
157 Michael Harvey: We don't issue a zonir~ compliance permit until we know that an the permits will be issued. We are
158 the ultimate catchall.
1S9
160 Renee Price: Mostly the oversight.
161
162 Judith Wegner. It is better to put it in terms of a policy. What other parts of the ordnances are directed inward?
163
i 64 Brian Crawford: I can go with the policy fomtiat as opposed to an ordinance if that pol'~cy is clear as opposed to
165 something buried in the minutes somewhere so the public will feel the sense the county is following the same game
166 plan as everyone else.
167
168 Renee Price: Without the cafes and the regulations?
169
170 Brian Crawford: I can live with a policy statement.
171
172 Robert Davis: Would it be something that Environmental Health would need to put in their rules?
173
174 Michael Harvey: Environmental Health issues the permit but it is based on state law and state standards. If we have
175 a kcal pol'~cy, as I am hearing from the group, that the county would assume the more rigorous policy standard for
176 submitting additional information to Environmental Health to secure a permit based on the concerns I am hearing.
177
178 Brian Crawford: If DENR toms it down, they will not get it anyway, right?
179
1$0 Michael Harvey: If one department toms down the permit, it will not be issued.
181
182 Joel Knight; I think what makes everyone uncomfortable is that we saw fit to put this requirement in and then we are
183 being asked to allow the county to do what they want. We should have a policy to let the public know that the county
184 will folbw the same rules we will.
185
186 MOTION Craufurd Goodwin to approve the ordinance and the Planning Board request the Board of County
187 Commissioners to direct the Manager of the Planning Department and the Orange County Health Department to
188 devise and develop a comprehensive set of rules, guidelines and policies to address large ground absorption
189 systems for county projects to ensure compliance with any and all standards to promote established goals and
190 policies of the Comprehensive Plan and Environment responsible.. Seconded by Judith Wegner.
191 Vole: Unanimous
192
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