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City of Burlington, NC

March 8, 2005



Members Present                                                      Members Absent

City:                                                                            City:

Mr. H.E. (Ed) Wilson, III, Chairman                             Ms. Charlotte Straney

Mr. Mike Gee, Vice Chairman                          Mr. Ed Lance

Mrs. Mary Watson                                                       Mr. Todd Smith
Mrs. Margaret Stephens


Also present was Mr. Joey Lea, Code Enforcement Officer for the City of Burlington.


Mr. Ed Wilson, Chairman, called the meeting of the Board of Adjustment to order at 2:05 p.mHe 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 February 8, 2005 meeting.  Mary Watson questioned the 4.67 inches and wanted to know if it was to be feet or inches on Case No. 02-05 in the decision on page 3?  Mr. Lea stated that she is correct and it should be 4.67 feet.  Mike Gee made a motion to approve the minutes with the change noted by Mrs. Watson and Margaret Stephens seconded the motion.  Mr. Lea interjected and said that after looking at it, that it was in fact  9.33 feet and should be roughly 9-foot 4-inches to make it 10 feet, so the actual variance was 4.67 inches and not feet.  Mike Gee made a motion to amend the approved minutes to approve the minutes with no changes. Mary Watson seconded the motion.  There being no more discussion, the motion passed unanimously.



CASE NO. 04-05  SPECIAL USE PERMIT:  SECTION 32.13.W - ZONING ORDINANCE (CHILD CARE FACILITY REQUIREMENTS) (Marilyn Thompson, 404 S. Ireland Street, Burlington, NC)



Mr. Joey Lea explained that Marilyn Thompson operates a daycare at 404 S. Ireland Street. Right now she takes care of two children and is in the process of becoming licensed by the state to operate a daycare that will allow her to care for 8 children per shift for 3 shifts and upon approval of her Special Use Permit she will then be registered by the State.  Her Special Use Permit will be intact for caring for 8 children on all 3 shifts as her daycare grows.  Mr. Lea  testified that she does meet all of the conditions of the ordinance and the requirements for a Special Use Permit. Mrs. Thompson has not yet fenced in her rear yard for her play area, but is waiting upon approval of the Special Use Permit to do so and there is more than ample room at the rear of the house to accommodate the minimum requirements for a fenced in area for the children.


Mr. Mike Gee stated that in the past they have approved many of these Special Use Permits that were already approved by the State and asked if the Board should consider issuing it pending approval from the State?  Mr. Lea replied that the way the State is handling it now is that they will not register her until she has the Special Use Permit from the City.  Chairman Wilson stated that they could make the Special Use Permit pending upon her getting her State license, which has been done in the past.  Mr. Lea said that the first requirement in obtaining a Special Use Permit is that she meet the State requirements, so upon approval the board should make it contingent upon meeting the State requirements and having her fencing in place.   


Ms. Marilyn Thompson explained that she operates a daycare now taking care of two children on first shift and that she has contacted the State to get a license and the State told her that she could not get a license until she has a Special Use Permit which is the only thing they are waiting on and once she gets the permit she will send it to the State and then her State Consultant will come out to inspect her property. Chairman Wilson asked if she gets the Special Use Permit today and mails it to the State, will she go ahead with her plans for the fence?  Ms. Thompson replied that she would.  Mr. Mike Gee asked Ms. Thompson that in her opinion, if she obtains a Special Use Permit to operate a childcare facility, will it injure the value of her adjoining property owners?  She stated that she doesn’t believe so and hasn’t had any problems with any of the neighbors and they seem like they have been supportive of her and the lady across the street explained some things to her that if anything were to happen at all, to go ahead and call the police and tell them that she runs a daycare.  Chairman Wilson asked if she rented or owned the home? Ms. Thompson said that she is renting the home.  Chairman Wilson asked if she had enough parking in her driveway to handle the vehicle traffic? Ms. Thompson replied yes, she has plenty of parking in the driveway and there is also enough room to park on the side of the driveway and the police said they could park across the street if needed.  Mike Gee asked if there was adequate lighting for people at night who work the 2nd and 3rd shifts to be able to see?  Ms. Thompson said there are two big lights on the front porch right now and if she gets the permit she is going to get a street light for the back of the house from Duke Power.  Chairman Wilson stated that if they approve the Special Use Permit it will probably be approved contingent upon meeting all of the State Requirements and obtaining the State License but if she is unable to meet the State Requirements and unable to obtain their license then her Special Use Permit will not be any good and asked if she understood that, she said yes she understands.


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 stated that this is for a Special Use Permit and Mr. Lea testified that she meets all of the conditions required and with all the questions the Board asked it appears to be true.  The final motion would be to make it contingent upon her obtaining her State license and fencing her backyard.  Mrs. Stephens asked if the lighting would be a problem? Mr. Gee stated that she testified that she is going to obtain a permit and have Duke Power install a streetlight in the backyard.  Chairman Wilson stated that a Duke Power type pole light is very compatible so there is no concern and she has addressed the parking and vehicle circulation issues.



Mr. Mike Gee made a motion that the four required conditions for issuing a Special Use Permit in accordance with Section 32.13.B(1)(A) are met due to the following Findings of Fact:


1)      that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan submitted and approved.

The Findings of Fact is that it does meet the condition and as testified there is adequate parking on the property and there appears to be good access to the property. There is adequate lighting and a fence is to be put in place along with a backyard light.


2)      that the use meets all required conditions and specifications

The Findings of Fact is that the required conditions and specifications have been met as testified to by Mr. Lea that the plan has been reviewed and approved by the Technical Review committee


3)      that the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity

The Findings of Fact is that the applicant has testified that she does not feel that this use will endanger or negatively impact adjoining property owners and since nobody from the neighborhood is here to testify otherwise then that is believed  to be true.


4)      that the location and character of the use, if developed according to the plan as 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 Fact is that this is a residential neighborhood and this is an approved use for this property under the City’s current zoning codes. 


Mary Watson seconded the motion. The Board voted unanimously to approve the motion on the findings of fact.

(AYES:  Gee, Watson, Stephens, Wilson)

(NOES:  none)



Mr. Mike Gee made a motion to approve the Special Use Permit for Marilyn Thompson to be located at 404 South Ireland Street in Burlington, North Carolina, due to the previously stated findings of fact contingent upon Ms. Thompson meeting the minimum State Requirements of operating a daycare facility and also contingent upon the proposed fencing of the backyard to be put in place 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 or void, then this permit shall be void and of no effect.


This Special Use Permit is to allow Ms. Thompson to keep up to 8 children per shift for 3 shifts per day. 


Mrs. Watson seconded the motion. The Board voted unanimously to approve the Special Use Permit


(AYES:  Gee, Watson, Stephens, Wilson)

(NOES:  none)



































CASE NO. 03-05  VARIANCE:  SECTION 32.8.A(9) -ZONING ORDINANCE (AIRPORT HEIGHT RESTRICTIVE AREA) (Tom Lindley, Jr. – JTL Properties, LLC,  2260 South Church Street, Burlington, NC)


Chairman Wilson advised Mr. Lindley that normally they are a Board of 5 Members which allows for one negative vote and today they are a Board of 4 and that he has the option of rescheduling this hearing until next month when there can be a full Board of 5 Members and if he goes forward today then he would have to have a unanimous vote to grant the variance and asked if he wished to continue? Mr. Lindley stated that he wished to continue.



Mr. Joey Lea testified to the Board  that Mr. Tom Lindley owns property on South Church Street at Executive Park West and is proposing to place an 80 foot tower to be used for a high-speed Internet service. Because of the nature of the tower it is governed under the telecommunications tower restrictions of the ordinance. In this particular location it is within the airport height restrictive area and the tower height proposed will be approximately 13-feet too tall.  By using the map on the wall Mr. Lea explains to the Board a more exact location of where the tower will be.  Mr. Lea stated that the area in which Mr. Lindley wishes to place the tower is referenced as the Horizontal Zone which does not allow structures to be higher that 100 feet above the established elevation of the airport. The elevation of the airport is 617 feet above sea level allowing an overall height of structures to be no higher that 717 feet above sea level. Mr. Lindley’s tower, at 80 feet, with a ground elevation of 650 feet above sea level will be at a height of 730 feet above sea level which will be 13 feet too tall. Mr. Lea  stated that just across the street is the conical zone of the height restrictive area that allows for structures to be no higher that 150 feet above the established elevation of the airport which again, is 617 feet above sea level. The proposed tower would not need a height variance located in the conical zone which is jus across the street. Mr. Lindley is asking for a 13 foot variance in order to locate the tower on his property.   Mr. Lea also stated that part of the requirements of this application was that Mr. Lindley would get approval for his request from the FAA. Mr. Lea stated that he did not covey that information in a timely fashion to Mr. Lindley and that Mr. Lindley has been trying to get in touch with the FAA to get approval which he has not yet been able to obtain but it should be done within the next few day’s.  Mr. Lea proposed to the Board that they listen to all of the facts in the case although not having the information from the FAA as of yet to make a determination on whether or not to grant the variance based on what your about to hear and make it contingent upon a favorable recommendation from the FAA.  Mr. Lea stated that the ordinance requires the application to be accompanied with information from the FAA.  Mr. Mike Gee made a motion that due to a miscommunication with the City on the requirements of the FAA information not being here that the Board make an exception to go ahead and hear the case and any decision made should be pending approval or recommendation from the FAA. Margaret Stephens seconded the motion. The Board voted unanimously to go forward with the request contingent upon approval of the FAA.

(AYES:  Gee, Watson, Stephens, Wilson)

(NOES:  none)



Mr. Lea stated again that 717 feet above sea level is the cap for the height in this area and the other area is 767 feet above sea level. There is a 50-foot difference between the two areas and the proposed location is within a couple hundred feet from where it would have given him that extra 50 feet as indicated on the diagram that was in the Board Members packets.  Mike Gee asked if the distances in the height restrictions will ever change?  Mr. Lea stated that there would be changes made to the airport that will extend part of that particular area but right now it is a set area. 


Mr. Dan Danieley, Executive Director of the Airport Authority explained that the drawing he brought with him today is showing the future runway extension so what is in place will be for 6,500 ft. of runway to be completed by 2008 and there are some height changes that can happen as he shows the Board on the large map on the wall but that any future runway changes will not effect this particular property.  Mr. Danieley explained that a few feet off would not impede the airport traffic at all.  Mr. Danieley said that when Mr. Lea contacted him and said he failed to give word to Mr. Lindley about the FAA endorsement, Mr. Danieley called the FAA to help expedite the situation and they are trying to get that information. However, it will take some time and he explained to them that the gentleman from the FAA who signs the letters said that there wouldn’t be any problem with that and in good faith there isn’t anything to worry about.


Mr. Lindley explained that he owns the property and has a particular tenant in this office complex who is in the business of providing Internet service and currently they are providing Internet service through a wired medium through telephone lines and they would like to offer this to be more competitive in the market to offer wireless because so many things are going wireless these days. Engineering studies that this tenant has accomplished, say they have a minimum of an 80 ft. tower that would be required to get the signal up over the trees. Mr. Lindley stated that they have researched towers, their locations, and he meets the setbacks and have met with the neighbors but there is one neighbor who is elderly and in a retirement home and her son who is handling it is out of town most of the time. All of the other neighbors don’t have a problem with it.  This is not a large cell phone tower monopole, it is similar to the tower out back of this building and you want be able to put radios on the top to get the Internet signal out to customers.  Mr. Lea stated that the actual final decision on this tower will be based upon what the City Council decides because this property will have to go before the Planning & Zoning Commission for recommendation to be rezoned for conditional zoning and then go to City Council for final approval. The process today is not approving the tower, it is granting the variance for the height of the tower.


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 stated that they just dealt with the same type of situation and approved that tower and this one is a little easier to prove because it is right on the edge and the Airport Authority has no problem with this at all and assuming the FAA has no problem with it either then there is no reason that we should have any problem.  Mr. Gee stated that Mr. Danieley’s testimony that the public safety is not being compromised does appear to preserve the spirit of the ordinance and promote the safety issues.  Chairman Wilson said that it also appears to be in harmony with the area and that the trees are taller than the proposed tower. It has been stated that the hardship is the topography of the land with low lying areas on Church Street and that there is a need for the height of the tower and that the tenant located here has an extreme amount of telephone lines that they have provided. It would be impractical for that tenant to move someplace else because the hardship was not created by the landowner.  Mr. Gee asked Mr. Lindley if there was any other place on his property that would meet all the setbacks? Mr. Lindley said no and Mr. Lea stated that they went through that extensively because they wanted to put the tower directly behind the building where his tenant is located but it is too close to residential property and the setback has to be twice the height of the tower from residential property. Where they want to put it now meets all of the requirements except for the height.  Mr. Mike Gee agrees with the stated hardship of the applicant because the property is sitting as such there is no other feasible location and he did not create the outlay of the property and he didn’t create the hardship.  


DECISION:  Mike Gee made a motion to grant the 13-foot variance to Section 32.8.A(9) Airport Height Restrictive Areas to JTL Properties, LLC.  The findings of facts in this case are that there are practical difficulties in the way of carrying out the strict letter of the ordinance that being that the proposed location does sit in a low lying area on South Church Street and the topography of the location presents the hardship because there are no other places that this tower could be placed. It is in harmony with the general purpose of the intent of the ordinance and it does assure that the public safety has been maintained and in granting the variance according to the testimony of Dan Danieley that public safety and welfare have been assured because this is clearly within 100 feet of an area which would allow this height with no problems and will not interfere with any air traffic. In addition, this variance is contingent upon all FAA approvals being obtained.


Mary Watson seconded the motion.

The Board voted unanimously to approve the Variance.


(AYES:  Gee, Watson, Stephens, Wilson)

(NOES:  none)





                                                                                    Ed Wilson, Chairman




                                                                                    Mary Fanelli, Secretary