MINUTES
BOARD OF ADJUSTMENT
City of Burlington, NC
April 12, 2005
Members Present Members Absent
City: City:
Mr. H.E. (Ed) Wilson, III, Chairman
Mr. Mike Gee, Vice
Chairman
Mrs. Mary Watson
Mrs. Margaret Stephens
Ms. Charlotte Straney
Mr. Todd Smith
Mr. Ed Lance
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 8:38 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.
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 March 8, 2005 meeting. There being no changes, Margaret Stephens
made a motion to approve the minutes and Charlotte Straney seconded the
motion. There being no discussion, the
motion passed unanimously.
CASE HEARD
CASE NO. 05-05 SPECIAL USE
PERMIT: SECTION 32.13.W - ZONING
ORDINANCE (CHILD CARE FACILITY REQUIREMENTS) (Walid
Nicola, 906 S. Main Street, Burlington, NC)
Chairman Wilson stated that Mrs. Stephens asked to be
excused from this case. Mr. Mike Gee
made a motion to excuse Mrs. Stephens from this case due to a conflict of
interest. Mrs. Mary Watson seconded the
motion. The Board voted unanimously to
excuse Mrs. Stephens from the case and invited Mr. Todd Smith an alternate
member to join them.
EVIDENCE PRESENTED:
Mr. Joey Lea explained that
Mr. Walid Nicola is applying for a Special Use Permit to operate a child care
facility at 906 S. Main Street and will care for up to 45 children. This plan
has been reviewed and approved by the Technical Review Committee and meets all
of the technical requirements of the ordinance. Mr. Lea stated that this particular daycare does not have to be
licensed by the State. There are several exceptions under State guidelines that
you can operate a daycare without a license. And that is if you have children
for 4 hours or less and a summer program operating no more than 4 consecutive
months which is what Mr. Nicola is proposing.
Mr. Lea said that the reason Mr. Nicola is here is because it states in
the Ordinance if you care for more than 6 children within a 24-hour period you
are a childcare facility. However, the activities that he is proposing he is
not recognized as a childcare facility by the State. Mr. Gee clarified that the facility cannot be opened for more
than 4 consecutive months and not be licensed by the state. Mr. Lea stated that he can have several
sessions going on at one time but neither one of them needs to be approved by
the state
Mr. Nicola explained that it
is based on each child being at the facility for less than 4 hours per day
except for a summer camp when they can be there all day but the summer camp can
only be 4 consecutive months which would run from June 6th to August
23rd. They will have a Mothers Morning Out program in the morning
and after school we’ll have children until about 5:30 or 6:00. All children
will be there for 4 hours or less.
Chairman Wilson asked if there will be children from the after school
program attending the “Mothers Morning Out”?
Mr. Nicola stated that because the Mothers Morning Out program is
typically ages a few months to 4 years old and after school will be
Kindergarten to 12 years old so they will not be there in the morning and
afternoon. Chairman Wilson asked if he
would be providing care for 45 children? Mr. Nicola stated that 45 is the
maximum allowed because of the lot size.
Chairman Wilson asked Mr. Nicola if he operates a facility now? Mr.
Nicola said no but he is a father of 2 children and his wife has been caring
for another child for the past 4 years. They heard about this business from a
former member of the Guilford County School Board who is running an after
school care program. Chairman Wilson
asked if this was going to be a new business for him? Mr. Nicola stated that it
would.
Mrs. Watson asked Mr. Nicola
if the amount of children allowed were according to the square footage of the
house or the lot size? Mr. Nicola said
the house would allow more than 45 children because the square footage of the
house is around 900 square feet. Mrs.
Watson asked if the fence encloses the entire backyard, Mr. Nicola stated there
is no fence. Ms. Straney stated that it
looked like there was a fence along the backside portion of the yard. Mr.
Nicola stated that it is an old fence that belongs to the adjacent property
owner. Mr. Lea reminded the Board that
this is not a state regulated use, and it is not a residential and that the lot
is zoned B-2 General Business. This is a commercial operation and Mr. Nicola is
fully aware of the fact that the house will have to be brought up to the
standards of the North Carolina State Building Codes for this particular use,
There are 2 standards that apply to determine the amount of children allowed
and that is the building code requirements and the Ordinance states your
allowed 100 per square feet of play area for each child. Those two things actually determine the
number of children allowed at one time in this building. Ms. Straney wanted to
make sure that Mr. Nicola would be required to have a fenced in area. Mr. Lea stated that if he were granted the
Special Use Permit then he would have the yard fenced in.
Mr. Gee added that according
to our Ordinance we have specific requirements for childcare facilities and Mr.
Lea has testified that your request does meet North Carolina State Standards
because you are not going to have to be licensed under the State
Regulations. Mr. Nicola stated that
even though he does not have to be licensed by the State that their standards
are going to be higher than what the State requires. Mr. Gee stated that the second requirement is that it meets
minimum open-air requirements and provides documentation testifying to the
Board of the lot area and how many children are allowed under that
requirement. Mr. Nicola testified that
that State Licensing requires 75 sq. ft. per child outside, and Burlington’s
Code requires 100 sq. ft. per child outside. The dimensions of the lot is .3
acres which is a little over 12,000 sq. ft. and he will have a little over 4500
sq. ft. fenced in play area. Mr. Gee
asked Mr. Nicola to explain the vehicle circulation around the property. Mr. Nicola explained that there is a parking
area on the southern portion of the lot, a 20-foot driveway with access to Main
Street on the western portion of the property.
Mr. Lea stated that Mr. Nicola indicated there was to be one-way traffic
that will be coming in from Sixth Street so the traffic on Sixth Street can
either leave Sixth Street and enter Sixth Street or they can enter on Sixth
Street and then go down the driveway and exit on Main Street. Mr. Todd Smith stated that it looks like
there is sidewalk on the side and wanted to know if that was a drop-off area. Mr. Nicola stated that the sidewalk on the
side and is actually for handicap access from the handicap space to the back
door of the property. Mr. Nicola said
if they park in the parking spaces then back out and leave on Sixth Street, for
example, if they want to pick up their child at the front door then they can
enter on Sixth Street and drive down to the front door, pick up the child there
or they can pick up their child where the fence intersects the building at the
back corner of the building. They can also pick up their child on Sixth Street
because there the street is real wide so there are three different places for
drop-off and pick-up areas. Chairman Wilson asked if all the traffic will enter
on Sixth Street, Mr. Nicola stated that all traffic will enter on Sixth Street
unless someone is interested in “backing out” onto Sixth Street. Chairman Wilson stated that there are 8
parking spaces and one of those spaces is a handicap parking space. Mr. Nicola
stated that’s right. Chairman Wilson said and there are 3 spaces along the
front of the house on the curb. Mr. Nicola stated that he cannot count those
because they are on the street. Mr. Gee asked Mr. Lea if according to the
requirements in the particular zoning if the parking was adequate for this
facility? Mr. Lea stated that it was.
Chairman Wilson asked how many employees would be hired? Mr. Nicola stated that he would have 2 or 3
employees there depending on how many children will be there. Chairman Wilson asked if that was a State
Requirement? Mr. Nicola said that’s actually the Childcare Licensing
Requirements and they are not required to follow them. Mr. Smith asked if there
was an Inspector that came out to check on unlicensed operations at all? Mr. Nicola stated not that he’s aware of. Ms. Straney asked what was occupied in the
building across the street? Mr. Nicola said that it was an apartment building
and stated that his father owns the house that is adjacent to it. Chairman Wilson asked if the activities of
the facility will be contained on that property and if anything at all will
spill over into a neighbors yard. Mr.
Nicola explained that during the summer program they will take the children to
other recreational facilities. Chairman Wilson asked if it were intend to try
to use the street or any of the neighbor’s properties to conduct your business?
Mr. Nicola responded no. Chairman Wilson asked if there is a lighting issue and
if there was going to be any nighttime activities? Mr. Nicola stated that they
are going to operate the business during the daytime hours. Mr. Gee asked what the hours will be? Mr.
Nicola said the summer camp may be from 7:00 a.m. until 6:00 p.m. depending on
the parent’s schedules. The Mothers Morning Out will be from 8:30 a.m. until
12:30 p.m. for the first session and the next session would come in about 2:30
until 5:30. Ms. Straney asked if he was going to have a sign on Main Street and
asked Mr. Lea if that was actually required?
Mr. Lea stated no that is not required. Chairman Wilson asked Mr. Lea if
there was a requirement for screening or open spaces? Mr. Lea stated that only
the requirements under 32.13.W would apply which does not require
screening. Chairman Wilson asked if any
of the neighbors rejected the request? Mr. Lea stated that he did not hear
anything from any of the neighbors. Mr.
Gee asked Mr. Nicola if the use of this facility is in harmony with the area in
which it’s located? Mr. Nicola said he thinks it will be an improvement and
yes, it will be in harmony. Ms. Straney
asked how the house is being used right now and if someone is living in it? Mr.
Nicola said it used to be a residential house and Margaret Stephens sold it to
us on January 1st and it has been empty since then. It’s 86 years
old and they are not going to make any changes to the outside of the house. The
interior of the house has tall ceilings, a perfect floor plan that you can see
the back door from the front door so there is a straight hall and access is
very easy in and out of the building and has a nice school house look to it and
he believes the perfect property for a daycare. Mrs. Watson commented that Mr.
Nicola stated that his father owns the lot and house on Sixth Street and wanted
to know if they were living in it? Mr. Nicola said it is a rental property and
that his father owns this house too.
Ms. Straney wanted to know what kind of clientele lived in the
apartments across the street and wanted to know if they were elderly? Mr. Nicola stated that they drive cars and
that’s about the only thing he knew about them.
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 it is defined as a permitable activity
within a given zoned area as long as that activity meets the requirements of
our code and has been testified from Mr. Lea and the Technical Review Committee
that this Childcare Facility meets all of our specific codes and meets the
general codes of our Ordinance and Mr. Nicola explained his operation well
enough and is not required to obtain a State License for this type of
childcare. Mr. Gee added that he also
testified that it will not injure the value of adjoining property owners and
will be in harmony with the neighborhood and there has been no discussion
otherwise.
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 as testified by Mr. Lea and Mr. Nicola. There is no
material danger to the public health and safety of the children that will be
cared for in this facility and will meet the minimum requirements.
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
and Mr. Nicola and does meet North Carolina State Standards and that the
facility does not have to be licensed by the State of North Carolina. The evidence presented does indicate that it
meets the minimum lot area requirements and that there is at least 100 sq. ft.
per child in a play area. As we move
forward this permit is contingent upon fencing this area in as been testified
that it will be done.
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 he 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 in harmony with the area in which it is zoned and that this is an approved
use for this property under the City’s current zoning codes.
Todd Smith seconded the motion. The Board voted
unanimously to approve the motion on the findings of fact.
(AYES: Gee, Watson, Smith, Straney, Wilson)
(NOES: none)
Mr. Mike Gee made a
motion to approve the Special Use Permit for Nicola’s Childcare Facility to be
located at 906 South Main Street in Burlington, due to the previously stated
findings of fact contingent upon Mr. Nicola installing the fence 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. Mary Watson seconded the
motion. The Board voted unanimously to approve the Special Use Permit
(AYES: Gee, Watson, Smith, Straney, Wilson)
(NOES: none)
Mr. Smith stepped down and Mrs. Stephens came back to the
Board.
CASE HEARD
CASE NO. 06-05 SPECIAL USE
PERMIT (Amendment): SECTION 32.3.C(3)
& 32.9 -ZONING ORDINANCE (CHURCHES AND CONDOMINIUMS) (Harvest Hills Church of God, 3110 East Maple Avenue, Burlington, NC)
EVIDENCE PRESENTED:
Mr. Joey Lea testified to the Board that Harvest Hills
Church of God located at 3110 East Maple Avenue is proposing the construction
of a condominium complex upon their property and that this is an amendment to
the original Special Use Permit issued in February 1996 for the Church that is
located on this property that is one tract of land. There was an original plan in the packages which was submitted
and approved by the Technical Review Committee. This is the exact same plan but
has been altered due to the number of units that was reduced from 100 to 80 and
a slight alteration of the drive going in. This plan does have full support of
the Technical Review Committee and does meet all of the technical aspects of
the Zoning Ordinance. This is an
amendment to the original Special Use Permit because it is an addition to the
property that is occupied by the Church. Condominiums by Ordinance, located in
an R-15 district, require a Special Use Permit. Ms. Straney stated that the
original permit was just for the Church and anything added is an
amendment. Mr. Lea said that anytime
you alter the scope of the property under a Special Use Permit you have to
amend the Special Use Permit in order to allow that particular use or
addition. Mr. Gee asked if the
requirement met would fall under 32.3.C? Mr. Lea stated it requires the use of
condominiums to fall under MF-A which is Multi-family guidelines with the
exception of density. In this particular
case, density has to be 15,000 sq. ft. of land per unit. Regular multi-family
regulations would only be 3,000 sq. ft. of land per unit. All the other
requirements such as setbacks and parking go along with MF-A District will
apply to this development. Mr. Gee asked Mr. Lea if he is testifying that the
applicant meets those requirements? Mr.
Lea stated that he was and to calculate the actual density of this property you
would use the entire tract of land and that density would actually allow 109
units and they are only asking for 80 units. Chairman Wilson asked if the
Technical Review Committee reviewed vehicle circulation, parking, service
entrances, utilities, and if screening is required? Mr. Lea stated that the
Technical Review Committee has taken all of that into consideration and no
screening is required. Chairman Wilson stated so they meet all of the general
and specific requirements for our code?
Mr. Lea stated yes, that is correct.
Mr. Lea stated that it was recommended by the NCDOT that the entrance on
Maple be widened. The Church has agreed to widen that section and add a turn
lane with the assistance of DOT.
Mr. Walter L. Simmons, representing Harvest Hills Church
of God, stated that the goal of the Church is to provide a quiet, peaceful
neighborhood for senior citizens so they can enjoy the support of the Church
while living in a peaceful area.
Referring to the plans, Mr. Simmons stated that there is an internal
courtyard inside the building complex which is designed to provide a peaceful
area for folks that live there to enjoy the outside and be with each other and
enjoy their retirement. Senior citizens are usually retired and have worked all
their lives and want to have a place that is peaceful and quiet, not places
that will have a lot of hustle and bustle and traffic through neighborhoods.
This complex that is being proposed will not impact any streets in any other
neighborhoods, it will be accessed off of Maple Avenue and does not connect
with any other neighborhoods to add to the traffic patterns in those
areas. Mr. Simmons also stated that it
is a short walk from the Church to the dwellings and this will give those folks
there the ability to take part in the facility and programs that are offered.
Mr. Simmons added that the plan does meet the minimum standards and does exceed
those standards in several areas. We made changes to keep the complex in
compatibility with the surrounding neighborhood and certainly in harmony with
what the surroundings are. There are a
few things that we have done to exceed the requirements such as turn lanes by
NCDOT and in addition there will be a de-acceleration lane on the north bound
lane to turn in as well as the turning lane from the center if your heading
south. When the plans were submitted at
an earlier date, we were 30 feet from the closest property line and now there’s
152 feet from the nearest property line. Dumpsters on the site have been moved
to the other side of the complex, further away from any residential areas. Ms. Straney asked if the changes were
reflected here? Mr. Simmons stated that they were. Chairman Wilson asked if the changes were presented to Planning
and Zoning? Mr. Simmons stated yes, to
make it more compatible and a friendly atmosphere for the surrounding
neighborhoods. Mr. Simmons explained
that the density has been reduced by 20% and stated that this is the entire
project that there will be no additional buildings. Chairman Wilson asked Mr. Lea that if they try to add on more
buildings or more units above the 80 units would that require further action by
our Board? Mr. Lea stated that it would require another amendment to the
Special Use Permit. Mr. Gee asked if
the portion of the property that is sloped, would run-off impact the adjoining
neighborhood or will it be pushed back to the east side of the property? Mr. Simmons said that it will be pushed back
to the east side of the property so it will be handled to maintain compliance
with storm-water requirements within the City of Burlington. Mr. Simmons added that there will also be
fire hydrants along the lane that circulates the entire project and the lane is
20 feet wide. Chairman Wilson asked Mr. Simmons if he was an architect or
developer? Mr. Simmons stated that he is the Director of Engineering and
Inspections for the City of Greensboro.
Ms. Straney asked Mr. Simmons if he was the developer? Mr. Simmons
stated that no, he just represents the Church.
Mr. Gee asked Mr. Simmons about lighting on the property? Mr. Simmons
stated that all the lighting will be directed toward the internal portions of
the project and will shine down right on us and will not shine down on the
outlying areas. It is lower than any of the other areas to the south of that
area meaning there will be no lights focused in that direction whatsoever. In
fact, the lights will be shining down on the lower elevation level than those
homes. Chairman Wilson asked if there
would be signage for the facility? Mr.
Simmons stated there would be no other signs than what you see in the plans or
what is at Harvest Hills Church already.
Mrs. Stephens asked if the units were available to anyone or just
members of the Church? Mr. Simmons
stated that they are for Senior Citizens. The need of this kind of housing in
this area is part of the mission statement for Harvest Hills which is to
provide for folks that otherwise can’t and keep it in a manner to make it
affordable to them. Consequently, the Church itself takes on a larger
responsibility to the maintenance and upkeep. Mrs. Stephens asked if it was
going to be independent living with no health issues? Mr. Simmons replied these
are condominiums, therefore, it will be independent living with no health
issues. However, the Church is close enough that if people begin to need help
then the Church is there. Mrs. Stephens
asked if these would be individually purchased? Mr. Gee asked if the parking
was adequate for the number of residents that will be there? Mr. Simmons stated
that it is adequate for the same requirements you would have to meet for
Multi-family. Mrs. Stephens asked if
they are going to be leased or sold? Mr. Simmons said that if there’s anyone
that is not able to purchase one on their own then they will have the option to
finance through the Church to help them out so they can afford it. Mrs. Stephens
asked if this development would be recognized as a Senior Community? Mr.
Simmons said yes.
Mr. Jon Harris stated that he is representing a parcel of
the 18 residents who’s property adjoins and also some other residents of the
Shamrock Estates Community that was developed in the 1960’s. Mr. Harris asked the Board for a continuance
until the May meeting due to the short notice and notification received on this
matter. This has gone on for a few months and there are some changes to the
plans that have been made. The letter was dated April 4th which was
a Monday and he’s not sure when they were actually mailed. Mr. Harris stated
that he received it Thursday night upon arriving home from work about 7:30 p.m.
so this only gave him two business days to do any kind of work on this and
Friday was taken due to charity events so at this time he asked respectfully
for a continuance. Chairman Wilson stated that Mr. Harris said he represents
several other plats? Mr. Harris apologized
and stated that he is a neighbor of the Church, resident and his property is at
1620 Shamrock Drive right behind the Church’s property Chairman Wilson asked
how many people he is representing? Mr.
Harris said well I am one of 18 adjoining property owners. Chairman Wilson
asked if he is testifying and speaking on behalf of all the neighbors? Mr.
Harris stated that he is one of those representing the community and speaking
behalf of some for medical reasons and not being able not to attend today,
Again due to short notice. Chairman Wilson asked Mr. Lea if he could inform the
Board of what the requirements are for the letters being mailed. Mr. Lea stated that unfortunately we cannot
control the Post Office but the mailings have gone out about a week to a week
and a half ago. We are required only to post notification which there was
notice in the newspaper five days prior to the meeting. Also, a sign was posted
approximately two weeks prior to the meeting. Mr. Lea stated that legally and
technically there has been adequate notice for this hearing. Mr. Harris stated that there was a second
sign up there that has been recently taken down and was unaware that there was
another sign when this project was going through another avenue and at one time
he was told there were two signs up for a while. Mr. Lea stated that originally there were two signs up for the
original request that was for a rezoning and then the special use permit sign
went up in addition to that and the other two signs for the rezoning were
removed. Mr. Lea stated that the only
requirement is that we give public notice. We do the sign as a courtesy and are
required to do public notification within five days of the meeting and that was
in the newspaper last Thursday.
Chairman Wilson stated that it appears that legally the City has
provided all the public notice that is required. Mr. Lea informed the Board that there is a request to postpone or
continue the meeting and you will need to vote on whether or not to continue or
to postpone. Chairman Wilson asked Mr.
Simmons if he would like to address the issue to postpone? Mr. Simmons said he
would like to move forward if possible, of course you are the Board and it is
your decision. Mr. Gee asked how many
adjoining property owners there were? Mr. Lea stated that he believes there is
eighteen to twenty. Mr. Harris said there were 18 based on the prior request
for rezoning and the survey that the City of Burlington did. Mrs. Watson asked
if these were the ones that primarily live on Shamrock Drive? Mr. Harris said
no, if you look at the map there is surrounding property owners and by the
petition protest that was submitted by the neighbors that required the City to
go out and verify that and that identified the property owners. Mr. Harris
stated that he has a copy of that and it is not just on Shamrock Drive, it
surrounds the property. Even across the street there were two or three property
owners because they were within the 100 feet jurisdiction. Again, I understand
what is required to do but on Thursday, if you work for a living and don’t get
to read the paper until later at night, your talking only two business days to
be able to do any leg work. Mr. Gee
stated that he understands Mr. Harris’ concern but we also have to act on what
the City’s requirements are and it appears that the notice was issued. Mr. Gee
stated that he counted nine people here on behalf of the public who may be in
opposition, but the notice was received and I would consider this an open forum
and I make a motion to proceed with the hearing today. Mrs. Watson seconded the
motion. The vote was unanimous to
proceed.
Chairman Wilson informed the meeting attendees that they
will proceed and asked if Mr. Harris had anything else to add. Mr. Harris said there were several items
that were changed that were not stated. For one thing, now they are condos,
before they were apartments or low-income housing or dwellings. These were
apartments and not to be sold so actually this is something new. The residents
did not know they were going to be condos. Also, the density was reduced by 20%
from 100% to 80%, however, on the proposed rezoning they were requesting prior
to this request were actually zoned off 21½ acres. Now what has happened is
they have opened it all up and it’s the entire piece of property that would go
back and be requested for special use and even though at this time they are
asking for 80 and thinks there would be some precedence that in the future
whether its 2, 5 or 10 years down the road that they come back and ask for
another amendment. Back in 1996 when the Church did ask for a Special Use
Permit there was no opposition. Who wouldn’t want a Church in their backyard.
Mr. Gee stated that the changes that Mr. Harris was unaware of are for today.
They seem to be explainable compared to what’s in the entire complaint. Mr.
Harris stated that they were, however, condos is a term that would allow you
for insinuating property lines which allow the properties to be sold, and
apartments cannot be sold. That would be an issue because once people get in
there and they are sold to them you don’t have any jurisdiction over them. In
the sheer density of the units, unfortunately, it is not projected on the
screen like it was presented in the last meeting, but the sheer density of the
entire piece of property over 37½ acres is basically wedged and forced into the
narrowest piece of property. While they did move the setbacks, your talking
about the corner of the building, not the setbacks to the parking lot, spacers,
sidewalks, lighting and in looking at the map it almost reduces that in half.
Basically coming from the zoning of R-15 to the apartments that are now condos.
Before it was noted by the Business Journal that this was on seven acres and
now by reducing it by 20% looks like it’s on six acres. So the sheer density factor
is still there. Mr. Harris stated that
he has met with the Church on several different occasions, even after the City
Council denied their request and one of their issues was the sheer density of
the project as well as traffic and some other things. Mr. Harris stated that
there were some favorable changes made but again the sheer density and the
100-year flood zone does not mean this area in the back cannot be used. It’s a
small portion of that in the 100-year flood zone as well as the surrounding property.
So for us as a community it is hard to endorse this when it really feels like
if there’s a project that we could endorse and be favorable to it would be
spread out a little and not make it so dense.
Mr. Harris stated that there are a lot of Senior Citizens who are 60+
years old that still work and they certainly won’t be sitting around looking at
the outdoors so there will be some traffic issues as noted by the City
Council. The Department of Highways has
looked at the project, however, their jurisdiction ends within the
right-of-way. Mr. Harris stated that
there is a gentleman who is also concerned that is not here today, but he has
six acres adjoining the property. He and his wife moved here from California in
a densely wooded area and he has some concerns with the close proximity of that
and the traffic coming in. Mr. Lea
stated that the gentleman that Mr. Harris is speaking about did come in and
speak to him. He looked at the plan and his only statement was that he was
concerned and made no reference to whether he was for it or against it or any
problems that he had and was not sure if he was going to be attending the
meeting. Mr. Harris referred to the map stating that parcel 6338 is the Smith’s
who could not be here today which is a house, 6337 is a dwelling by Ms. Helen
Stokes who is in attendance, 6335 is myself, 6334 are the Treads which are here
and 6333 no longer has a house there, because back in the ’80’s it was
destroyed by a fire so it’s joined by a dwelling that Dean and Bennie Hall own
and that was the gentleman that came in to see Mr. Lea. Mr. Harris spoke to Mr.
Hall last night and said that when he came in on Friday he could only look at
the map and couldn’t get a copy of it because it had to pass through someone
else before he could receive a copy.
Mr. Lea stated that there were some legal issues due to the evidentiary
hearing through discussion with our City Attorney it was determined that
although he had the plan there he could reviewed it in his office. It was
determined that the evidence should not be made public until the Board itself
has had adequate time to receive and review the evidence and did indicate to
Mr. Hall that he would be more than happy to mail him a copy once that did
occur which unfortunately didn’t occur until yesterday. Mr. Gee asked Mr. Harris what exactly is
your concern about vehicle circulation and traffic? Mr. Harris said the adjoining property owners directly across the
street who is Mr. Garner and is not here today but attended the last meeting
has a first hand account and witness to the traffic that is moving right there
that comes from the Church. The widening in the street would actually widen on
his property so there are many issues with the traffic such as entering and
exiting, and the lady beside him also has sat in her living room and watched
traffic come out and all the near misses that have happened because when your
coming from the south your coming over a hill and there is an entrance further
down the road going into another complex which is right above the NC 49 sign.
It gets pretty congested there and older people do not drive that well Their
senses are impaired and decreased so as people come out and leave slowly,
traffic is coming over the hill at 45 mph. Mr. Harris stated that there are
many issues with exiting and entering.
Another gentleman down the road which is not an adjoining property owner
but his driveway which is a long driveway is off of Maple Avenue has issues
with the amount of vehicles leaving and the amount of time for those vehicles
to leave and exit during Church hours.
Chairman Wilson asked if the turning lanes do exist right now? Mr.
Harris stated that they did not. Chairman Wilson stated the DOT recommended the
turning lane to alleviate some of the traffic problems as well as widen the
entrance into the existing Church driveway.
Mr. Harris stated he doesn’t believe that it’s a wider entrance. They
will be using the existing entrance and that the road itself is wider. Mr. Simmons, representing the church, stated
that the existing entrance is already a good size and the proposed changes for
the traffic patterns will both benefit the folks across the street as well as
this project, because there were no turning lanes or any de-acceleration lane.
It will be divided and that’s one reason why the traffic pattern is that way
today. If you turn either way onto Maple Avenue there will be oncoming traffic.
So with the turning lane it will oppose traffic on the other side of the
street. Chairman Wilson asked Mr.
Simmons or Mr. Harris if they know of any DOT recommendations that have not
been applied to this plan? Mr. Simmons stated no. Mr. Harris said he didn’t
think so other than a stop light that DOT says is all they can do right
now. Mr. Gee asked Mr. Harris if this
was discussed at prior meetings? Mr. Harris stated that it was and wasn’t sure
if it stated it in the minutes that Mr. Johnson has, but their concerns were
density, traffic and the neighborhood as well. Mr. Gee explained that the items
they have to consider will be gone through with Mr. Simmons as well. We have to
make a judgment based on testimony and any professional recommendations that
are made that are recorded in this testimony and in trying to make a
determination on traffic and vehicle circulation it appears that the North
Carolina Department of Transportation has implemented some recommendations that
will lead to a court right into this approval.
Mr. Gee stated that he understands their concern and it does appear that
it has been addressed at least in some form or fashion. Mr. Harris stated that
this is actually not a change. This was on the previous plan that was submitted
to the City Council. Mr. Gee said that he thought Mr. Harris said that at a
prior meeting his had not been included. Mr. Harris said not on the turning
lane, the turning lane was there prior, Mr. Simmons stated that they recognized
a need for that and it really is a need for southbound traffic. Mr. Gee asked
that DOT then recommended a de-acceleration lane for the northbound traffic as well?
Mr. Simmons stated they were going to incorporate that into it as well. It’s on
the Church’s property anyway as you come in, so now this will allow traffic to
get out of the movement lanes of the northbound traffic and then the southbound
lane you will turn. Mr. Harris asked if
the northbound de-acceleration lane was on this map. Mr. Simmons stated that it
doesn’t show it well on the diagram, which will be attached to the plan when
submitted. Mr. Harris said that it was
a concern of not only his but to the Council Members who had many concerns as
well in a professional opinion in regards to money or someone that comes along
that has talked to several property and real estate appraisers stating there is
no way that the construction of this will increase our value of our property,
Nobody told him that it would, in fact, they did say that if it would do
anything, they don’t see how it would increase, it would decrease. Mr. Harris said he does not know the cost of
these but figured that the prior project had some relevance and was at $600 for
rental so it is a little bit lower income even if it’s HUD or funded by another
agency. There are a lot of issues with lower income, the size of these as
opposed to the size of these lots which are at least ½ acre lots and other
property owners have 6 acres on each side of the Church property. Mr. Harris stated that Mr. Lane just
purchased bricks for a $300,000 house to be built, so the average costs of the
houses in our neighborhood is about $270,000 and when you take in the golf
course which is about 100 acres, it increases to over $300,000 and you would
include this property because he’s an adjoining property owner. So money does
factor into this and that would be a professional opinion. Chairman Wilson asked Mr. Harris if he was
familiar with all of the different requirements for this special use
permit? Mr. Harris stated that he was
not. Chairman Wilson stated to Mr. Harris that the Zoning Ordinance allows the
different special use permits in areas that they are not zoned for and if the
applicant can meet all of the conditions then it’s an approved use. Which means
it’s allowed in that zoning district. That’s what we are trying to determine,
if it does meet all the requirements. It has been in front of a Technical Review
Committee and it has been testified that it does meet all of those
requirements. Mr. Harris asked if this
was the previous plan the Technical Review Committee approved and passed on.
Chairman Wilson stated that Mr. Lea who represents the City has already
testified that it does meet all of the requirements. Chairman Wilson stated to
Mr. Harris that it would be helpful if you know of the requirements that it
does not meet. Mr. Gee stated that is what the Board has to determine is
whether or not the use meets the requirements. What you were just testifying
about as far as property value goes, is the effect on the adjacent property and
that is somewhat a subjective statement. Mrs. Stephens could possibly have some
input to the effect it may have on adjacent property values during Board
discussion time but not being completely familiar with the project, even the
$600 net proposal whenever this was made, mortgage rates have been in a
historic low and we’re talking about elderly individuals that could still have
a unit in the $95,000 - $100,000 price range. I would imagine that those
numbers would be higher now than when the plans were originally submitted
because mortgage rates have subsequently gone up unless we had someone to tell
us there was a negative impact from the property value standpoint and I don’t
know if we can take a subjective opinion into consideration. Mr. Harris stated that one issue would be
900 sq. ft. of living space as opposed to 3,000 sq. ft. which is what he owns
and he does not believe that will increase the value of his house. Mr. Gee stated that the other side of this
is to consider something like the Wakefield Development where there is a
mixed-use facility where there will be anything from apartments and condos to
multi-million dollar homes. Mr. Harris stated that there is not any
multi-million dollar homes here. Mr. Gee said he understood that, he was just
giving him an idea of another area of development. Ms. Straney asked if anyone knew of the proposed selling price of
the condos? Mr. Simmons stated it will
be determined on how much it will cost to build the entire project and the
Church’s goal is to provide these at minimal cost as possible. Mr. Harris
stated that another fact is that since conception and the building of the Church
there has been property damage due to high winds, rains and during the time of
construction the same laws that are being proposed here is to protect the
adjoining property owners from damage and Mr. Dean Hall’s house was flooded and
that was due to run-off and mud slides. Mr. Harris stated that basically with
the amount of run-off I don’t think that the statute has changed much that it
would protect the property owners. Every property owner that was mentioned on
our side, so to speak, has a direct result of increased flooding and water-flow
and run-off. Mr. Simmons stated this
property as it sits, is on a lower elevation than the adjacent properties. Mr. Harris states he believes that is
correct, but by looking at it there are some trees and a cleared space but
looking at the landscape requirements and what they are proposing, it looks
like everything right up to us would be clear-cut. The amount of imperious
property that is going to be generated by this all drains for I believe Mr.
Walker. Mrs. Ralph Johnson who leased the golf course from Mr. Walker is the
adjoining property owner who in 1966 developed this community and public golf
course and the water run-off does flow to the course and into streams and ponds
that are connected with the course. The property crosses Shamrock Drive across
the dam which is a lower point than what this property sits on so it will be
increased because the water has to go somewhere. It will follow the least
resistant path and understands that after following requirements somewhere
along the line, with the legitimate concerns of the neighbors that we would
openly agree and confirm another use of it but there is a little bit too much
density. Ms. Straney stated that they
are actually not building as densely as they could according to the Ordinances.
Mr. Lea replied that they are allowed to build 109 units and they are only
building 80. Mr. Harris stated that they could come back at a future time and
ask for an amendment to allow them to build that number in the future. Ms.
Straney stated that is true but they will have to come back before this Board.
Mr. Harris stated that’s right but as long as they met the requirements as laid
out by Mr. Wilson it sounds like they would.
Ms. Straney said I don’t think you can guess what the results would be.
Mr. Harris said that’s right I was just saying as long as they met the
requirements. Ms. Straney stated that they would still have to go through this
process of us asking a lot of questions and giving testimony so it would be a
thorough process before an amendment could be approved. Ms. Straney if the land recently been
rezoned? Mr. Lea stated that this plan
was presented for a rezoning for a Conditional-Residential use to allow
apartments. Originally they had sectioned off a portion of the property to
abide by the density under the conditions for rezoning by a R-9 density which
determined the number of units that they had and if this had gone through, a
portion of the property to the left side that had the apartments at that time would
have been rezoned Conditional-Residential. It was approved by the Technical
Review Committee and had a recommendation of approval from the Planning and
Zoning Commission. City Council denied
it due to the concerns of the neighbors. In this particular incidence the
density now goes back to the R-15 and incorporates the entire parcel of
land. Mr. Lea Stated that these are two
totally different processes, as you know, that is why you are hearing reference
of the City Council because it was before them through a rezoning request. Mr. Harris stated that the R-9 was proposed
with conditions. Mr. Lea stated that with Conditional-Residential you go with
R-9 density or R-9 requirements. In this particular case you have to go with
R-15 requirements so they cannot be regular apartments they have to be either
condominiums or townhouses. Condos can be sold or leased and there is no land
ownerships associated with condos. Mr. Le Stated that all aspects of the
ordinance have to be met in this particular case and under conditional they
could’ve requested the density be changed by moving it further back to be less
or they could’ve requested anything under conditional if staff and council were
to approve it. However, in this case they cannot deviate the ordinance in any instance.
Every aspect of the ordinance needs to be met in order to develop this property
with a multi-family development. Chairman Wilson asked again if Mr. Lea was
testifying that they have met all of those conditions? Mr. Lea replied that is
correct. Ms. Straney asked if she
understood Mr. Simmons to say one change from the original plan is that now all
the construction was further away from adjoining property lines than it was
originally? Mr. Simmons Stated that
they were. Mr. Lea said that the MF-A requirement setback would allow that
building to be as close as 30 feet to the property line. Mr. Harris said he believes that Mr. Simmons
was referring to the property lines on Shamrock Drive because if you look on Mr.
Ewing’s property line it’s 41 foot and that did not move. Mr. Lea stated that setback could actually
be 25 feet. Mr. Lea said the one that is 150 feet could be 30 feet. Mr. Gee asked if Mr. Lea if fencing and screening
was not necessary. Mr. Lea stated that it is not required, however, they are
indicating some landscape buffering to the property lines on Shamrock Drive.
Incidentally this development does not even have to meet the landscaping
requirements, so they are adding more landscaping than what is required. Mr.
Harris stated that another point would be talking about the density of 6 acres
with 80 units which now will be owned like these houses are owned that are on
at least ½ acre with many greater than that. Mr. Harris stated that he is not
sure what it comes out to, but, it is dense and not consistent with the
neighborhood. Mr. Lea stated that is not how the density is figured and
multi-family by nature is usually more units per ground surface than
single-family. Mr. Harris stated yes,
that’s exactly right we are not a multi-family neighborhood so that would be
another point.
Mr. Stuart stated that his property adjoins the Church
property on Shamrock Drive and he is retired from Highway Patrol with 36 years
and knows about traffic and this intersection at 45 mph and said drivers will
be running 55 mph or better and is a dangerous place already. Mr. Stuart stated
that he had the opportunity in previous years going to this kind of housing,
serving papers and picking up driver’s licenses and tags and serving warrants,
and in 6 months time he can visualize what this will be. Ms. Straney asked what
kind of warrants? Mr. Stuart said any
kind of warrants, someone who didn’t go to court. When you violate the law they
take a warrant out on you. If you don’t come to court they send a warrant out
for you, they give the Highway Patrol the warrant because they are the ones
that have to d the arrest. A revocation is where your insurance expires or your
tags are expired, then they go out and get the tags or the driver’s license and
you have to go to these places, and I’ve been to many, many of those
places. Chairman Wilson said that Mr.
Stuart’s saying that in his opinion that this will occur at this property. Ms. Straney asked Mr. Stuart if that is
still the issue when you have to go a community that is totally Senior
Citizens? Mr. Stuart said the way he understood it was that they were going to
sell these places and I think they have to pay $100.00 down and the taxpayers
pay another $500/month. After someone buys it they can have anyone in there that
they want to. What would keep them from having a dozen people living there with
them? Ms. Straney said that they stated
that the Churches goal is to restrict this to Senior Citizens. It’s their goal
apparently to provide a community that’s safe away from the main road for
Senior Citizens. Mr. Stuart said if I
buy one and I’m a Senior Citizen can’t I invite or have anyone living with me
that I want to? Chairman Wilson said we
cannot control if someone purchases a property what they may do, they have to
live within the laws of the community, as long as they did that then their
actions would be legal. Mr. Stuart
stated that’s the reason why I said I could visualize what it will be like in 6
months time. If it’s going to be like all other places that I’ve visited in
those 36 years. Chairman Wilson asked if the community would be taking on
neighborhood covenants that they may present?
Mr. Simmons stated that they would. Chairman Wilson said so the
neighborhood will have restrictive covenants applied with it so you’ll have
some control through the court system not through the City because we cannot
enforce those kinds of things. Mrs.
Stephens asked Mr. Simmons if they would be built with handicap specifications? Mr. Simmons stated that 16 units will be fully
accessible and the remainder of the units will be convertible to accessible use
knowing the population that we’re probably going to have there they will be
ready for that need. That’s the reason you see all the homes are only one-story
so that it’s easy to have accessible.
Mr. James T. Johnson stated that he lives at 1837 Shamrock
Drive and owns an additional adjacent lot. The church property doesn’t touch my
property I am closer to the entrance of Shamrock Golf Course but on Shamrock
Drive Mr. Johnson stated that he had heard this and had questions as a member
of the Planning & Zoning Commission. As an Extraterritorial Member I was
not able to vote on it at the Planning & Zoning level and I want to make
sure that you have a full perspective related or not to this particular
application a change of City Council’s actions that was discussed over two
meetings on March 1st and continued over to March 8th,
when two more hours were spent on this with the Council. At that time it was
before the Council on a somewhat similar map with the modifications discussed
by Mr. Harris earlier as a Conditional Zoning request. Mr. Johnson stated that
he believes that the Technical Review was based on this package because your
application only came within the past month as he understood, it certainly
didn’t come before City Council on the 8th as a modification to
their special use, which if I may offer a view on that it seems to me that it’s
in a run around City Council who denied this rezoning request to go to a
special use alteration for something so greatly different than the original
special use which was to build a church on an R-15 parcel of land. Now I
understand this morning, which I only found out about this at 9:30 last evening
so I certainly didn’t have time to prepare. This was heard by City Council at
length and concerns were expressed. I have a copy of the minutes if you want to
include them in the record if it’s appropriate. To me this seems like no more
time wants to be spent on it and I can’t believe that you would strongly say
that. My impression of the City Council meeting when they denied it was that
the Church was going to get back with the neighborhood and try to work things
out and when Jon Harris who is our representative went around and got a valid
protest petition for the City Council it contained 75% out of 18 of the
landowners around the perimeter who signed the protest petition for the
Conditional Rezoning. At that point they were going to rent those units and
that was a matter of public record suddenly they are selling these units which
means the Church isn’t going to exercise control over this Church related
special use modification. They are selling “between the walls”. If they were
renting it I would feel more comfortable with it because by renting they would
have some control because as a landowner you can stipulate who rents it and
what they do to it and how they take care of it, but selling these condos off
is a totally different thing and it’s not even close as the original special
use of building a Church in R-15 which is how this property is zoned and we are
West Burlington and it was actually stated at the Council meeting that if this
were not a Church bringing this before the Council we wouldn’t have had this
long of discussion we would’ve refused it. In other words they get special
consideration because of the entity. I’m just very disappointed in this whole
process. Mr. Johnson Stated that Jon Harris went after the City Council Meeting
and had a meeting with the Pastor and his answer was, well, we really haven’t
discussed it, I’ll get back with you and the next time Jon Harris was gotten
back to was getting a letter in the mail last Thursday evening with this
different tact to achieving the same thing. In addition, it had worsened which
I’ll ad verbally because that’s not on any of these plans, and that is selling
the units. So I just wanted to express our concerns for this whole process.
It’s overstepping an amendment to a special use permit to build a church, to
build apartments and sell them and loose control of the same piece of
property. Chairman Wilson asked Mr.
Johnson if he first said you did not think the current plan went through
Technical Review? Mr. Johnson said yes, that is correct. In the month of March,
because there are subsequent changes to the whole thing and from what I hear
from you, there’s a much less stringent process here because they are selling
apartments and that the Church was going to have control over this and I asked
how and you said they will have restrictive covenants but I haven’t heard
anything of what the covenants are going to be. Can you specify that to give us
some level of comfort from this shock.
Mr. Simmons responded that they had a discussion among themselves and if
the community were prepared to do this would they rather see them leased or
owned by the Church? We’d be glad to accommodate that and we’ll put that in
whatever fashion you would like to have it.
Chairman Wilson stated that it doesn’t matter to this Board whether they
are sold or leased. The Church is allowed to do either but to be a good
neighbor and if the neighborhood would prefer that then that’s a stipulation
you are willing to make and we cannot make that a condition to the special use
permit. Chairman Wilson said that they
are allowed to have whatever neighborhood covenants they choose to have. Mr.
Lea stated that covenants have to be under a condominium association so they
will have to come up with an association that will be responsible for the
upkeep of the condominiums with whatever restrictions they decide on within the
legal limits. Mr. Johnson stated that
means a great deal to him but he cannot speak on behalf of the others. Mrs. Stephens said that she wanted to
clarify that she thought the reason that there was so much objection to all of
this with the Planning & Zoning and the Council was because it was supposed
to be an apartment complex. Mr. Lea stated that the Planning & Zoning
Commission recommended approval to the project and City Council turned it down.
Chairman Wilson said that Planning & the Technical Review Committee has
approved this plan before us today. Mr. Lea stated that he did not say that
this plan was approved by Technical Review specifically. What I said was the
original plan was approved by the Technical Review Committee and this is the
exact same plan with the two modifications of dropping off the one unit and
altering the drive that comes back to the main entrance. those two
modifications were not enough to go back through the Technical Review Committee
because the infrastructure and everything was the exact same so it still has
full support of the Technical Review Committee. Mr. Johnson said however, the
plan that went through Planning & Zoning was for rental units controlled by
the Church. I sat on that Commission and that to me is another major change in
the overall approach to this project. Mr. Lea stated that they can do that
there but they cannot do that here because
you cannot have apartments in an R-15. There are only two ways you can
do multi-family in R-15 and that is under conditional which was denied or a
special use permit. Mr. Johnson asked if Planning & Zoning was involved in
the special use permit process at all?
Mr. Lea stated that they were not. Ms. Straney said that her
understanding is that the request to rezone, and the process for that, is
Planning & Zoning and then to City Council who denied the request, So in
order to do anything, changes to a church property requires a special use
whether it had been rezoned or not. Mr.
Lea stated as far as an amendment that’s correct. Ms. Straney said so even if your to be rezoned the Church still
has to come and get a special use permit to build anything because it’s an
addition to their property and churches by Ordinance require a special use permit.
Mr. Lea stated that he did not attend the City Council meeting, however, Kurt Pearson who is our Assistant Planning
Director attended and my understanding is that under the request of the
conditional rezoning they were going to be required to come back to get an
amendment to the special use permit so what you are saying is exactly
right. Mr. Johnson said that it seems
to me that it was a waste of time to go before City Council and Planning &
Zoning and they were turned down and normally you have a year before you can
reapply and then the very next month submitted anyway with denial from the City
Council. Mr. Johnson stated that he has a copy of the minutes if you’d like to
include them as evidence. Mr. Gee stated
that this is a completely different hearing and the minutes of the City Council
would have been related to a conditional rezoning request which does not have
the same requirements that a special use permit has. Mr. Johnson said that he said if it had been approved by the City
Council this would’ve been their next step.
Ms. Straney said it’s not that it’s a next step it’s a different
entity. Mr. Lea stated that’s why it
would have had to come back after the Council, the Council by their scope of
authority could not amend the special use permit. Mr. Johnson said I know that, it is one of your duties. Mrs. Stephens asked Mr. Johnson if he could
explain to her why he doesn’t want this project? Mr. Johnson said he’s concerned
for the health, safety and morale to the surrounding area to this project
especially with the sales feature that they added there was a concern by the
neighborhood. Before, certainly because of the density and a number of other
things that happened, the sales feature I find very disturbing in terms of
health, safety and morale of our area and values and I don’t think it’s in
constant with existing uses. It specifically concerns me that it was not
already brought up at City Council. Mr.
Todd Smith, Board member, stated that in looking at this one issue we do have
some compatibility with property in the area as you continue North within a ½
mile there is another similar town home development that has had an affect on
Highway 49 as well. Mr. Johnson says on both sides you have it and that’s added
to Highway 49 traffic. Mr. Smith said
yes that’s right but from the Board’s standpoint I haven’t heard anything
otherwise that indicated that this project is not compatible given a similar
project within basically a stone’s throw of this project. Mr. Johnson states I guess it’s in which
direction you look at it. Number one, compatibility with the zoning of the
piece of property itself, it’s zoned R-15 with a special use permit. The
special use permit does not change the zoning, it’s R-15 which is like West
Burlington and we at Shamrock Golf Course are a higher zoning that’s directly
South in terms of zoning. I’m not sure
it’s compatible with those facts, now you can say there’s condos closer into
Burlington, quite a few, and once again the traffic problem was discussed in
length at City Council by a fireman who is not here, and the only reason why
I’m here is that I was called at 9:30 last night. Apparently the special use
permit sign is yellow like the zoning sign so after a few months of passing it
I didn’t even read it and since I do not touch
I did not get a letter but got called by a neighbor who did get a letter
last night. So my sidebar concern was I know you considered, we only asked for
a month so this could be looked at a little further. This is off the cup and I
didn’t sleep last night because of this. What’s the rush? Ms. Straney said that if the Church is
nearest to their goal of supplying decent housing for Senior Citizens I’m
guessing there would be less traffic than if not Senior Citizens but your going
to have fewer people driving if you have people that are handicapped and then
your going to have a number of people who don’t drive at all. I don’t think
it’s going to be like an apartment complex like the British Colony. This isn’t
like that, when you have younger people you have a lot of traffic, partying and
all of that, we can’t control that, they adhere to their admission but it
appears that there honest and sincere mission is to provide Senior Citizen
housing. They are going to be homeowners, not renters and I would think that
they would have a more defined ownership philosophically where they live, their
going to take care of the property, there will be a homeowners association or
whatever the proper term is. Mr. Straney stated that people who live there are
going to be older people. Yes some might be working but basically there is
going to be less traffic than it would be if it would have been a different
population. Mr. Johnson stated I don’t believe the assumptions is that people
60 and older drive less is correct. I’m a geographer by training and a retired
Army Officer. I don’t know if we have data one way or the other on that. This
is my 60th year and I know since retirement that I’ve driven 5 times
as much as prior to that year when I had to be at an office every day. I make
more trips now than prior to retirement, so I’m not even sure that less traffic
is valid with Senior Citizens. Chairman
Wilson asked Mr. Lea what would happen if they fell out of compliance with one
of the requirements? Mr. Lea stated that they would be made to bring it back
into compliance. If any of the requirements are not met then the special use
permit would be null and void. Chairman Wilson said they would have to stop
construction then? Mr. Lea stated that they would have to stop construction and
anything that is not finished would become nonconforming and that requirement
is stated in the Ordinance. They also have two years to start construction and
if they don’t start in that two years then their special use permit would be
null and void, however, the special use permit for the Church would remain in
tact. Chairman Wilson asked if there were any other instances where this permit
could be voided? Mr. Lea stated that in
reference to some of the testimony that was given, there are State Requirements
when you disturb more than an acre of land and you are required to incorporate
erosion control so all of those will be guidelines that are governed by the
state to be applied and adhered to and if those get out of hand those problems
can be addressed by State Requirements and also has to be approved by our City
Engineering staff. Chairman Wilson asked if there was anyone else who would
like to address this matter? Mr. Harris
stated that is no correct about Senior
Citizens driving less. It creates an influx of guests that would be driving and
surely good people would keep good company and is sure that it will offset
that. Mr. Harris stated that he would like to present are a copy of the
previous results of the zoning petition. Chairman Wilson asked Mr. Lea to
clarify what the rules are for a petition coming before this Board. Mr. Lea said that you’ll have to determine
petitions in light of the type of hearing that your in as being hearsay
evidence and you’ll have to decide on whether or not to enter them into the
record, also it is my opinion on anything that came out of the City Council
hearing, any documents or any testimony or anything said during that hearing
which is a different hearing is irrelevant to this and I think everything that
was said there has been brought out here so whichever aspects of that you can
ascertain as facts or as hearsay, but if he’s going to present you with
documentation from that case then the Board would need to decide on whether or
not to accept it and as you know it is hearsay evidence and you cannot or
should not use that as a determination to your decision. Chairman Wilson said to Mr. Harris that the
petition was already discussed and doesn’t see a reason to accept that as
official evidence because it considered as hearsay anyway. Mr. Harris stated that I’m bringing that up
because these are the top leaders of our community so their professional
opinion is taken into consideration. Chairman
Wilson said yes you are exactly right and they also have the recourse to change
the zoning requirements to disallow neighborhoods like this at anytime. They
have not changed the zoning requirements to do that so therefore the only thing
we can base our opinions on is the Zoning Ordinance as it stands today. Mr.
Harris said again the concerns that I mentioned were the congestion, density
and neighborhood concerns as well.
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 special use permit application meets all of the
requirements as has been testified by Mr. Lea and based on Technical Review and
by Mr. Simmons based on the applicant that everybody intends to uphold those
requirements. We’ve gone through and confirmed that ourselves as the Board
heard testimony of several of the neighbors and their opinions of traffic flow
and property value and in general the use of the property. Mrs. Stephens stated what she sees is a
condominium project which was an apartment complex and thinks that either way
with this particular situation there’s probably some insight to the maintenance
issue that as a condo project that’s control and the protection of that
community and you’ve got the absent owners of those condos who are actually
controlling the continual maintenance which is something important in an
apartment complex when you have one person that owns that project and this
particular situation where there’s a Church and then there’s an owner you will
just assume that this person who owns it and not own the parcel of land that it
will be very difficult to sell. Mrs. Stephens stated that I think the
maintenance issues that the neighbors are concerned about and then you’ve got
the condominium project that has to be a homeowners association where each
owner is a participant and it appears to me that they met more than what is
required. The traffic issue can be
controlled and with DOT’s input, there’s a few other things that need to be
considered such as parking, lighting and I have a problem seeing where there’s
a problem. Mr. Gee says he agrees and
thinks that with the testimony that has been heard today on behalf of the
applicant and then in opposition to the applicant that looking into those
requirements for a special use that all four have been met. There’s a problem
that the two groups couldn’t discuss this problem before this meeting occurred
and they are going to think that the neighbors had someone there to tell their
concerns about traffic. Other issues alleviated in density issues that were
addressed as well as potential uses of the condominiums being for sale or for
lease had been resolved prior to coming to this meeting. However, we can’t
control that as part of this Board when it comes to enforcing stuff it does
appear that they have met and exceeded the requirements for a special use
amendment. Mrs. Stephens stated that if
in fact the property was zoned R-15 with the amount of units they have in there
would actually add more density in the front and then you would have at least
two cars per home so your traffic flow would be heavier and your density would
be heavier. Ms. Straney asked if you
were saying this was not owned by the Church and just a parcel of land and
there were already apartments on there you could say if a developer came in and
developed it all in R-15 then you would have individual control of the
property. Mrs. Stephens stated that she
doesn’t know if they are in a position to limit individual use there, that’s
controlled by your city government. Mr. Gee stated that should be controlled by
your Zoning Ordinance for an allowed use. Chairman Wilson stated that it also
appears that since the last time this was in front of the City Council that the
Church has tried to take in to account the complaints from the neighborhood in
an attempt to be a good neighbor, not that there required to do that. Ms. Straney comments that she understands
the frustration of being notified by short notice and understands not knowing
the processes of rezoning that involves City Council and a special use which
involves this group and understands the traffic concerns because I lives right
off of 62 right behind Home Depot and led the fight against that because of
some of the same concerns the people have. It was very frustrating but growth
is going to happen and that’s kind of what she had been told and most of you
would rather there be nothing there for the rest of your lives and into the
next Century but that is definitely not going to happen. Ms. Straney stated
that she has been in their shoes and it’s tough but seems to her that this
logic is probably one of the better things they can have there if they’re going
to have to have something there it could be more dense or a different kind of
population.
Mr. Gee 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. Mr. Gee
combined the firs two:
- 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 use meets all required
conditions and specifications. In regards to vehicle circulation there
has been testimony on the concerns of vehicle circulation but it appears
the applicant has consulted the North Carolina Department of
Transportation and they have implemented a northbound de-acceleration lane
in addition to a southbound turning lane to solve and support this
development. No impact is cause by
the drives because the internal lanes do not connect to any other
neighborhood. In regards to
parking the parking as testified by Mr. Lea Of the City meets all
requirements and the adjacent property I feel has been addressed because
the density for this project has been reduced by at least 20% from the
original proposal and based on topography it appears that most of the
run-off will occur on the east side of the property and it has been
testified that the property actually sits lower than the adjoining property
of where run-off had been voiced a concern. In regards to service
entrances and areas it has been testified by the applicant in a response
to concerns voiced by the community that the dumpsters have been moved to
the completely opposite side of the property and will have no effect on
adjoining properties. Utilities
are all accessible to each property and screening as testified by Mr. Lea
is not required on this property, however, the applicant has indicated
there will be landscaping provided. In regards to signs and lighting the
only sign that will be on the property already exists and the lighting has
been testified that it will be directed inward to producing measurable
impact on neighbors and ensure safety of the residents. Mr. Gee stated that with regard open
spaces it has been testified that the minimum requirement is 10% of the
land be available as usable space and there is more land available and
compatibility as discussed among the Board is that there are similar
projects in the adjoining area that would indicate compatibility with this
property.
- 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 as testified today
are that with the changes made in the proposed use will not substantially
injure the value of the adjoining property owners.
- 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 as testified
today are that the requirements specified in the Ordinance regarding
compatibility in harmony with existing neighborhoods and that there are
similar use developments within this same development.
Mrs. Stephens seconded
the motion.
(AYES: Gee, Wilson, Watson, Straney, Stephens)
(NOES: none)
DECISION: Mr. Gee made a motion to amend the special
use permit for Harvest Hills Church located at 3110 East Maple Avenue with the
previously stated findings of facts and the applicant shall complete the
development in accordance with the plans submitted and approved by this Board
and if any conditions affixed hereto or in apart thereof shall be held invalid
or void then this permit shall be void and of no effect.
Ms. Charlotte Straney
seconded the motion.
The Board voted
unanimously to approve the amended Special Use permit.
(AYES: Gee, Wilson, Watson, Stephens, Straney)
(NOES: none)
MEETING ADJOURNED: 11:05 am
___________________________________
Ed
Wilson, Chairman
___________________________________
Mary
Fanelli, Secretary