MINUTES
BOARD OF ADJUSTMENT
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.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.
DUE PUBLICATION
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.
MINUTES
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 HEARD
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)
EVIDENCE PRESENTED:
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.
DECISION:
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 HEARD
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.
EVIDENCE PRESENTED:
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)
MEETING ADJOURNED: 2:05 pm
___________________________________
Ed
Wilson, Chairman
___________________________________
Mary
Fanelli, Secretary