BOARD OF ADJUSTMENT
City of Burlington, NC
November 9, 2004
Members Present Members Absent
Mr. Mike Gee, Vice Chairperson Mr. H.E. (Ed) Wilson, III,
Mrs. Mary Watson
Mrs. Margaret Stephens
Ms. Charlotte Straney
Mrs. Joyce Lance
Also present was Mr.
Joey Lea, Code Enforcement Officer for the City of Burlington.
Mr. Mike Gee, Vice Chairperson, called the meeting of the
Board of Adjustment to order at 8:30 a.m.
He explained that the city representatives to the Board of Adjustment
are appointed by the City Council and the representatives of the
Extraterritorial jurisdiction were appointed by the County Commissioners. This
is a quasi-judicial hearing. Everyone
speaking before the Board should state their name, sign the log on the podium,
and swear or affirm that everything they say is true to the best of their
knowledge. Appeals of the Board’s
decisions may be taken to the Alamance County Superior Court. The City will state their position because
of their knowledge of the case and the technical codes. The applicant will state their case, and
then anyone from the public may speak.
The Board will then close the meeting to the public, discuss the case
and then take a vote. An affirmative
four-fifths vote is required in order to grant a variance, a special use
permit, or an appeal.
Mr. Joey Lea, Code Enforcement Officer with the City of
Burlington, advised that due notice and publication of this meeting of the
Board of Adjustment and matters to come before it had been made, and all
contiguous property owners were mailed a notice advising of this meeting.
Prior to testifying before the Board, each party was sworn
in or affirmed that the testimony they were about to give was true to the best
of their knowledge.
Vice Chairman Gee asked if there were any changes to the
minutes from October 12, 2004, meeting.
There being no changes, Mrs. Margaret Stephens made a motion to approve
the minutes and Mrs. Mary Watson seconded the motion. There being no discussion, the motion passed unanimously.
CASE NO. 20-04 SPECIAL USE PERMIT:
SECTION 32.13 -ZONING ORDINANCE (SPECIAL USE PERMIT REQUIRED FOR CHILD
CARE FACILITY) (Ms. Rosanda Mitchell, 2736 Terrace Drive,
Vice Chairman Gee reminded the
Board that this is a request for a Special Use Permit and will have to meet all
of the findings of fact and the general conditions for a special use permit.
Mr. Joey Lea stated that Ms. Rosanda Mitchell owns an in-home
childcare facility at 2736 Terrace Drive. This is an amendment to an original
Special Use Permit that was issued back in May of 2000 and approved for 8
children per shift for 2 shifts and she is proposing to allow a 3rd
shift. The requirements for an in-home
childcare facility are that the maximum number of children that she can keep
are 8 per shift which include 5 preschool and 3 school age children. Her own
children are exempt. Mr. Lea informed the Board that last week he received an
anonymous phone call from someone in the neighborhood that claimed that there
was no one in the house at night or during the weekend. Mr. Lea visited with
Ms. Mitchell at her home and it is apparent that this is not true, that her
family does in fact live there. Mr. Lea
called the representative of the licensing department for the State and asked
what the guidelines were in the event
that someone did not live in the house where an in-home daycare was operating.
Mr. Lea stated that the State would not license a person to do that. There must be someone residing in
the home before they can be licensed. Mr. Lea stated that the applicant meets
all of the requirements of the ordinance for an in-home daycare. Ms. Charlotte Straney asked Mr. Lea if
because this was initially approved by the City, does the Board need to start
over and look at it as if it had never been addressed or are we only looking at
it as an amendment, Mr. Lea stated that you need to look at it as if there were
no daycare there to make sure all the requirements are met. Mr. Gee stated that the Board has to clarify
the specific conditions as Mr. Lea has testified that they have been met. Mrs. Stephens stated that the Board cannot
void the use of the 1st and 2nd shifts, she’s already
working under an approved special use permit and if this Board denies, for
whatever reason, the 3rd shift, than she can still run the 1st
and 2nd shifts. Mr. Lea
stated that the only thing the applicant has to do is meet the conditions of
the ordinance and it would be up to the Board or someone from the public to
present evidence that she does not comply with the conditions of the
ordinance. Ms. Straney stated that the
Board still has to insure that the main four conditions are met no matter what
Ms. Mitchell stated that when
she applied for her permit no one had told her she needed to apply for 1st,
2nd and 3rd shifts. When she contacted her consultant,
she came out to her home and said that her special use permit was for only 1st
and 2nd shifts and that she would need to appear before the City for
a 3rd shift. She has a
license now to operate a 3rd shift but needs a special use permit in
order to do so. Ms. Mitchell explained
that there are no daycares out there right now for a 3rd shift and
she had received a lot of calls for 3rd shift and has had to turn
people down. Mr. Gee asked Ms. Mitchell if she does live in the home and Ms.
Mitchell stated that yes, she does live in the home. Mr. Gee asked if she has been permitted from the state and Ms.
Mitchell stated that she has. Mr. Gee
asked what the vehicle circulation was like around the property? Ms. Mitchell stated that they do have a lot
of traffic because people use the road for a short cut coming up the service
road by Ramada Inn and stated that the her 1st shift starts at 6:30
am and 2nd shift starts at 3:30 pm and they leave by 12:20 am. Mr.
Gee asked if parents dropping off and picking up children impede traffic and if
she has adequate parking and loading? Ms. Mitchell stated that usually they pull
in the driveway and they are just there to pick up or drop off, they don’t
stay. Ms. Straney asked if there was a
streetlight? Ms. Mitchell stated that
there is a streetlight at the bottom of her neighbor’s house. Mr. Gee asked if there was adequate lighting
at the house for parents and children coming and going? Ms. Mitchell stated
that they have flood lights at the driveway and in the back and there are porch
lights also. Ms. Straney asked if the
children were school aged? Ms. Mitchell stated that she is allowed to keep
children from 6 weeks up to 12 years of age. Ms. Straney asked if they are free
to be out and about in the front yard or are they restricted to the back fenced
in yard? Ms. Mitchell stated that they
go in the front sometimes, but mainly are in the backyard and if they are in
front she has a paper with permission from their parents to allow them to play
outside the fenced in area. Ms. Straney
stated that she is concerned about the “blind curve” and asked if there is any
chance that if a ball gets loose and the child has to run for it into the road?
Ms. Mitchell stated that they do not play ball in the front yard it is only
played in the back yard because of the traffic. Ms. Straney asked Mr. Lea if
there are any requirements that the children must remain in the fenced in
area? Mr. Lea stated that the ordinance
requires them to maintain a certain area to be fenced in but is not aware of a
requirement that says they have to play inside the fenced area. Ms. Mitchell stated that if you keep 5
children you don’t have to have a fence but if you keep 8 children then you
have to have a fenced in area. Ms. Straney said that may be true for the state
but not for the City. Mr. Lea stated that she is not a daycare under the City
regulations unless she keeps 6 or more children Mrs. Joyce Lance asked if there
was any reason that anyone would think that the house was not occupied at night
or on the weekends? Ms. Mitchell stated that the only thing she can think of is
that when she first applied for a special use permit the neighborhood gave them
a hard time the first time she applied, so they probably saw the sign up and
thought that she might be applying for a center. Ms. Straney commented that there appears to be a vacant house two
doors down from the Mitchell’s and thinks that someone might have confused that
with the Mitchell’s home.
DISCUSSION & FINDINGS OF FACT: There being no further comments from the
public, Mr. Gee turned the meeting over to the Board for discussion. Mr. Gee stated that Mr. Lea has confirmed
that the specific requirements for an in-home daycare Special Use Permit have
been satisfied and there has been quite a bit of discussion about the general
requirements for a Special Use Permit. It appears that there is adequate vehicle
circulation that won’t impede traffic in the street and testimony that states
there is adequate parking and lighting and Ms. Mitchell does live in the house
as is required by the State. Mrs.
Stephens stated that as far as she can tell she meets the requirements and she
has been in business since 2000 and in the same house so she is not transient.
She does not move around a lot which means that she gives security to those
children that she is watching. Mrs.
Lance stated that she views it as adding on services. Mr. Gee asked Mr. Lea if the Board makes a motion to approve this
are we amending the original special use permit to allow a third shift or are
we going to issue a brand new special use permit? Mr. Lea stated that it would
be an amendment to the original permit.
Mrs. Lance made a motion that the 4 required conditions for issuing a
special use permit in accordance to Section 32.13.B (1A) are met due to the
following Findings of Fact:
- The use will not materially endanger
the public health or safety if located where proposed and developed
according to the plans submitted and approved. The findings of fact are that the use
of this childcare facility has been in operation and located here since
May of 2000 and it has been stated that there is adequate parking and
loading space as well as flood lights in the driveway in the front.
- The use meets all required
conditions and specifications. The findings of
fact are that this is an amendment to the initial special use permit which
was granted in May of 2000 and that all of those required conditions
continue to be met.
- The use will not substantially
injure the value of adjoining or abutting property owner or that the use
is a public necessity. The findings of
fact are that there are no abutting property owners here and the one
complaint that Mr. Lea received that the home is not occupied at night or
on weekends has been addressed and Ms. Mitchell has assured the Board that
they do live in the house and a Board Member has suggested that maybe this
neighbor has them mixed up with another house in the neighborhood, this
house is occupied at all times.
- That the location and character of
the use, if developed according to the plan submitted and approved, will
be in harmony with the area in which it is to be located and in general
conformity with the plan of development of Burlington and it’s environs. The Findings of Facts are that Like My
Own Family Childcare Home has been in existence since May of 2000 and has
handled childcare 1st and 2nd shift and this is simply
an add-on of 3rd shift based upon the needs of the community
testified by Ms. Mitchell. Mrs.
May Watson seconded the motion.
(AYES: Gee, Lance, Watson, Straney, Stephens)
DECISION: Mrs. Lance made a motion to approve the
special use permit for Like My Own Family Childcare Home to be located at 2736
Terrace Drive due to the previously stated Findings of Fact and that the
applicant shall complete the development in accordance with the plans submitted
and approved by this board and if any of the conditions affixed hereto or any
part thereof shall be held invalid and void, this permit shall be void and of
no effect and this is an amendment to the original special use permit which was
granted in May of 2000. Ms. Straney
seconded the motion.
(AYES: Gee, Lance, Watson, Straney, Stephens)
MEETING ADJOURNED: 8:57 am
Gee, Acting Chairman