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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.mHe explained that the city representatives to the Board of Adjustment are appointed by the City Council and the representatives of the Extraterritorial jurisdiction were appointed by the County Commissioners.  This is a quasi-judicial hearing.  Everyone speaking before the Board should state their name, sign the log on the podium, and swear or affirm that everything they say is true to the best of their knowledge.  Appeals of the Board’s decisions may be taken to the Alamance County Superior Court.  The City will state their position because of their knowledge of the case and the technical codes.  The applicant will state their case, and then anyone from the public may speak.  The Board will then close the meeting to the public and discuss the case and vote.  An affirmative four-fifths vote is required in order to grant a variance, a special use permit, or an appeal.


Mr. Joey Lea, Code Enforcement Officer with the City of Burlington, advised that due notice and publication of this meeting of the Board of Adjustment and matters to come before it had been made, and all contiguous property owners were mailed a notice advising of this meeting.


Prior to testifying before the Board, each party was sworn in or affirmed that the testimony they were about to give was true to the best of their knowledge.



Chairman Wilson asked if there were any changes to the minutes from 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.






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.



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. 



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 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)



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: 


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


  1. 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.    


  1. 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.


  1. 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)







                                                                                    Ed Wilson, Chairman




                                                                                    Mary Fanelli, Secretary