BOARD OF ADJUSTMENT
City of Burlington, NC
January 11, 2005
Members Present Members Absent
H.E. (Ed) Wilson, III, Chairperson Mr. Todd Smith
Mr. Mike Gee, Vice Chairperson
Mrs. Mary Watson
Mrs. Margaret Stephens
Dr. Ed Lance
Also present was Mr.
Joey Lea, Code Enforcement Officer for the City of Burlington.
Mr. Ed Wilson,
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 and discuss the case and 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.
Chairman Wilson asked if there were any changes to the
minutes from December 14, 2004 meeting.
There being no changes, Margaret Stephens made a motion to approve the
minutes and Mike Gee seconded the motion.
There being no discussion, the motion passed unanimously.
NEW ALTERNATE MEMBER
Jondeen Terry swore in new alternate member Dr. Ed Lance,
who is filling in for Joyce Lance while on a Leave of Absence.
CASE NO. 01-05
VARIANCE: SECTION 32.3.E(5) -ZONING
ORDINANCE (MINIMUM RESIDENTIAL SIDE YARD SETBACK) (CBJR, LLC, 913 Gray Street, Burlington, NC)
Mr. Joey Lea explained that
CBJR, LLC owns property located on Gray St. that currently has four houses on
one lot. They want to subdivide the property into individual lots. All
properties will meet the minimum width and side yard requirements with the
exception of one lot. The variance that they are asking for is to the 10-foot
side yard setback. Chairman Wilson
asked what the exact variance would be on the particular lot that is in
question? Mr. Lea responded that the
one house would be 9.3 feet from the property line at the front and 9.1 feet
from the property line at the rear. Chairman Wilson asked if they have to
choose which lot is to have the variance? Mr. Lea stated that he would choose
which lot would require a variance and explain exactly what he will be
doing. Mrs. Margaret Stephens commented
about the selection of the lots and said with Lot #2 being an interior lot,
this would seem reasonable and the variance should be considered on Lot #1
because it has more of a left side yard than Lot #2.
Mr. Carl Blackwell of CBJR,
LLC explained that he bought the property about 5 years ago and it already had
four houses on one lot and if he decides he wants to sell off one piece of
property he cannot do that. He spoke to a Broker and he was told that he
couldn’t sell one; he’d have to sell them all because they are on one piece of
land. Mr. Blackwell said that he hired
Boswell Surveyors to do a survey of the property and draw property lines and
that’s where it was discovered he was in need of a variance to bring the
property from non-conforming to conforming.
Chairman Wilson asked how old the houses were? Mr. Blackwell said that
the houses were built back in 1970 or 1971.
Chairman Wilson asked Mr. Blackwell if he was in agreement with Mr. Lea
in shifting one of the property lines over to allow a ten foot side yard
clearance and have a variance on one piece of property and asked if he knew
which piece of property that would be?
Mr. Blackwell stated that he is in agreement and he would like the
variance to be on Lot #1. Ms. Charlotte
Straney asked if the land has been subdivided yet? Mr. Blackwell stated that he
had Boswell Surveyors come over but nothing is registered. Ms. Straney asked Mr. Lea how four houses
could be on that one lot? Mr. Lea
stated that they were most likely built before our ordinance was in affect. Ms.
Straney asked if they were not subdividing right now, is it legal as it stands?
Mr. Lea stated that it is a legal non-conforming lot as it sits, and it is
conducive to this development with the number of units based on density.
However, that would be a multi-family development and all the other
requirements for multi-family couldn’t be met. That is why it is non-conforming
because it does not meet all the requirements.
Chairman Wilson stated that subdividing it with the variance brings it
all into conformance. Ms. Straney asked
Mr. Blackwell if he had actually tried to sell the property as is or put
feelers out there of the possibility of selling it as is? Mr. Blackwell stated
that he did try to sell the property and has discussed this with Gunn Realty
who had taken it over for six months and they said that it was not a feasible
thing to have four houses on one lot. Ms. Straney asked if these were
individually owned homes? Mr. Blackwell stated that they are all rental homes.
Ms. Straney asked Mr. Blackwell if he could continue to own the homes and keep
renting them out and still receive income? Mr. Blackwell stated that he could
continue to rent them as they are.
DISCUSSION & FINDINGS OF FACT: There being no further comments from the
public, Chairman Wilson turned the meeting over to the Board for
discussion. Chairman Wilson explained
that what the Board is looking at is a variance on Lot #1. It is a side setback
variance of 7/10 of a footin the front and a side yard variance to
the rear of the house of 9/10 of a foot.
Mrs. Stephens stated that she would like to commend Mr. Blackwell for
going forward and making this effort to try to change this and make it right.
The size of the lot that he has can have a lot more units on it if he chose to
do that. He could bulldoze down what he has and rebuild. Another issue he will
have to deal with is that if in fact he decides to sell individually he will
have some lending problems if this is not correct because underwriters and
lenders are not going to approve something that is non-conforming. Ms. Straney stated that she has some
concerns for the need for a variance and getting reasonable return from his
property. Actually, on his application he says that there is a desire to sell,
but until it’s for sale and he can’t get a buyer, it seems that there isn’t a
proven point that there is a need. It’s the subdivision of the property that is
causing the need for the variance because as it is, it’s ok as non-conforming
and it looks like we would be advocating approval of a variance on an event
that might or might not happen in the future.
Chairman Wilson stated that Mr. Blackwell had testified that Gunn Realty
stated that this was not a marketable property. Ms. Straney stated that she
still has a problem that they would not have to be sold individually in order
to get reasonable return on the property. There is rental income right now. Mr.
Mike Gee stated that he would like to make an interpretation that if we grant
the variance that it will bring this property more into harmony with the
existing neighborhood. As Mrs. Stephens stated he could come in and knock all
four of the houses down and create a denser property use, which would bring
more people into that neighborhood. He can’t testify that it would bring
property values down but it is going to create a denser situation there. Mrs.
Stephens stated that it would change the aesthetics and the atmosphere of the
neighborhood to go in and do something like that and she does not believe that
we are looking at any kind of return on the property for him as an investment.
We have to look at the fact that he’s bringing something into conformity.
DECISION: Mrs. Stephens made a motion to approve the
request made by CBJR, LLC in Case #01-05 requesting a variance at 913 Gray
Street, with the stipulation that when the property is surveyed that all lots
have a minimum of 10 foot side setback with exception to Lot #1 which would be
determined at the time the survey is made in accordance with the guidelines
established by the surveyor at that time. The hardship is that the owner of the
property purchased the property with the intent of purchasing it as one and to
bring it into conformity with the City guidelines is now requesting to
subdivide the property and that the variance is within the harmony of the
general purpose and intent of the ordinance and preserves it’s spirit and that
in granting the variance the public safety and welfare have been assured and
substantial justice has been served.
Mrs. Watson seconded
(AYES: Wilson, Gee, Watson, Stephens, Straney)
Chairman Wilson asked
if there were any other issues? Mr. Lea informed the Board that he received a
memo from City Attorney, Bob Ward, in the case of Mr. Carl Buckland vs. The
City of Burlington. The case was heard in Superior Court and the Judge did
decide in the City’s favor of your decision to dismiss the case so now we are
waiting to see if Mr. Buckland will be appealing the decision. Chairman Wilson asked if the trailer has
been removed from his lot and Mrs. Stephens stated that as of yesterday it was
moved. Ms. Straney asked what the status was of the Extraterritorial
Members? Mr. Lea stated they we are two
MEETING ADJOURNED: 9:05 am
E. Wilson, III, Chairperson