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MINUTES

BOARD OF ADJUSTMENT

City of Burlington, NC

August 9, 2005

 

Members Present                                                      Members Absent

City:                                                                            City: 

Mr. Mike Gee, Vice Chairman                          Mr. H.E. “Ed” Wilson
Ms. Charlotte Straney                                                   Mrs. Margaret Stephens

Mrs. Joyce Lance                                                         Mrs. Mary Watson

Mr. Todd Smith

 

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

 

Mr. Mike Gee, Vice Chairman, called the meeting of the Board of Adjustment to order at 8:35 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. 

 

Vice Chairman Gee stated that normally they are a Board of 5 Members which allows for one negative vote but today they are a Board of 4 which requires a unanimous vote to grant approval on the cases today and if anyone would like to have their case tabled until September they can do that at the time their case is read.

 
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.

 
SWORN TESTIMONY

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.

 

 

 

 

 

 

 

 

 

 

CASE HEARD

CASE NO. 16-05  SPECIAL USE PERMIT:  SECTION 32.13.W - ZONING ORDINANCE (CHILD CARE FACILITY REQUIREMENTS)

Northside Church of Christ, 820 Harris Street, Burlington, NC

 

Vice Chairman Gee explained that there were only four Board Members present and that it would take a unanimous vote in order to approve the request and asked if they would like to continue or postpone the case until a full Board could be present?  Ms. Lynn Foyer a representative of the Church stated that they would like to continue.

EVIDENCE PRESENTED:

Mr. Joey Lea explained that the Northside Church of Christ is applying for a special use permit for a daycare facility to be located inside the Church. According to the site plan there is ample parking located on the side of the Church, a fenced in play area with a minimum 1,000 sq. ft. and this daycare does meet all of the general and specific requirements of the Ordinance.

 

Ms. Lynn Foyer of Northside Church of Christ explained that their congregation would like to open a daycare and shows the Board pictures of the Church’s property and stated that it will be operated through their outreach ministry for the community that needs a lot of positive reinforcement to help with parenting skills and to be able to reach out to this community through the ministry.  Vice Chairman Gee asked if they have received their certifications for the daycare yet?  Ms. Foyer stated they are in the process of getting the certifications along with the inspections but needed to have the special use permit first. Ms. Straney asked what the hours of operation would be? Ms. Foyer stated that the daycare would operate from 6:30 a.m. until 5:30 p.m.  Mr. Smith asked if that was Monday through Friday and if those hours would conflict with Church traffic? Ms. Foyer stated it would be Monday through Friday and that there would be no conflict with church activities.  Mr. Smith asked if there was plenty of parking? Ms. Foyer said that there is an adequate amount of parking.  Ms. Straney asked if there is a concern for lighting and if the daycare would run past 5:30? Ms. Foyer said that it would not.  Ms. Straney asked which entrance would be used for the daycare?  Ms. Foyer stated the handicap entrance is the one they would use. Ms. Straney asked if they would be using the metal steps on the other side for any reason.  Ms. Foyer stated that the metal steps lead to another level that leads up to the top sanctuary and will not be used by the daycare.  Ms. Straney asked if there would be extra fencing or a screen of some type since the play area is so close to the neighbor’s driveway?  Ms. Foyer stated that what is there is what is going to be used and she does not have a problem with the play area being that close to the driveway and neither does the adjoining property owners.  Ms. Foyer mentioned that the neighbors came over on Saturday and they foresee no problem with the daycare being there and that this is a good thing for their community. 

 

Vice Chairman Gee explains that this is an existing Church and they have vehicle circulation, which is not going to change. The door to be used is right next to the parking lot and Ms. Foyer said that they would be using the handicap entrance on the side of the building to load and unload the children.  Mr. Smith asked what that area of the building is used for now? Ms. Foyer said that it is the fellowship hall and the primary use will be for the daycare. 

 

DISCUSSION & FINDINGS OF FACT:  There being no further comments from the public, Vice Chairman Gee turned the meeting over to the Board for discussion.  Ms. Straney stated this meets all four requirements and that safety is not an issue, traffic patterns have not changes, there is adequate parking so there is not an ingress or egress issue and doesn’t seem that any special requirements are an issue here. 

 

Ms. Charlotte Straney 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 are that the neighbors do not object, there are no safety issues, the parking and traffic ingress and egress are already established and there is no endangerment to public health or safety.

 

2)      that the use meets all required conditions and specifications

The Findings of Fact testified by the City are that all of these conditions are met by the local Ordinance and no specific conditions that have already been mentioned have to do with vehicle circulation, parking and loading is ok.

 

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 no one has objected and this will improve the property because of the necessity of the daycare in the area.

 

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 it has been established that they need to have a daycare and it is very common to have daycares in Churches in residential areas and this is in harmony with the area where it is to be located. 

 

Mrs. Joyce Lance seconded the motion. The Board voted unanimously to approve the motion on the findings of fact.

 

(AYES:  Gee, Lance, Smith, Straney)

(NOES:  none)

 

DECISION:

Ms. Charlotte Straney made a motion based on the previously stated Findings of Fact to approve the Special Use Permit for the Northside Church of Christ Daycare to be located at 820 Harris Street in Burlington, the applicant shall have approval by the State 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.  Mrs. Joyce Lance seconded the motion. The Board voted unanimously to approve the Special Use Permit.

 

(AYES:  Gee, Lance, Smith, Straney)

(NOES:  none)

 

 

 

 

 

 

 

CASE HEARD

CASE NO. 17-05  VARIANCE:  SECTION 32.4.A (12) & 32.3.F (5)  -  ZONING ORDINANCE (Uses in Multi-family and Side setbacks in R-6 District) (Jonathan Blake, 1449 East Maple Avenue, Burlington, NC)

 

EVIDENCE PRESENTED:

Mr. Joey Lea asked the Board to re-open Case #13-05 of Jonathan Blake requesting a sideyard setback variance. Mr. Lea stated that after being notified by one of the adjoining property owners it was discovered that we were given the wrong address for the variance location, which means that the Board actually gave a variance to the wrong property. Mr. Lea stated that because of that and other evidence that the board will hear I am recommending that Case #13-05 be re-opened. 

 

Mr. Todd Smith made a motion to re-open Case #13-05, Mrs. Lance seconded the motion.

The Board voted unanimously to re-open the Case.

 

(AYES:  Gee, Lance, Smith, Straney)

(NOES:  none)

 

Mr. Lea stated that the builders are in the process of constructing the house located at 1439 East Maple Avenue. In the original application it was recognized as 1433 East Maple Avenue and that was incorrect.  Mr. Lea explained that several weeks ago the property owner to the right of the property came to my office and that’s when it was discovered we were working with the wrong lot.  During the conversation several issues arose. In the original testimony it was stated that the City of Burlington was to some degree responsible for the setbacks being approved incorrectly. What actually happened is that the surveyor was wrong. The stakes were in and the strings were pulled when the Building Inspector did the inspection and it did show a 10-foot setback and that’s how it got approved. The neighbor’s had their own survey done and that’s when it was discovered there was a problem with the property line.  Mr. Lea stated that Mr. Blake had been trying to secure some property from the adjoining property owner to make his setback correct but it did not work out so that is why he came before the Board for a variance.  Mr. Lea asked the board to make the variance that was granted to J. Blake Builders on June 14, 2005, null and void due to the fact that the variance was granted to the wrong property.

 

Mrs. Lane made a motion to make the variance that J. Blake Builders had received on June 14, 2005 for 1433 East Maple Avenue null and void.  Mr. Todd Smith seconded the motion. The Board voted unanimously to null and void the variance that was granted to J. Blake Builders on June 14, 2005 for 1433 East Maple Avenue.

(AYES:  Gee, Lance, Smith, Straney)

(NOES:  none)

Vice Chairman Gee asked if there was anyone to represent J. Blake Builders. Mr. Dan Overby an Attorney with the Vernon Law Firm approached the bench and Vice Chairman Gee explained that there are only 4 members of the Board here today and this would require a unanimous vote to grant the variance and asked if he would like to proceed.  Mr. Overby stated that in speaking to his client they would like to have their case heard next month.

 

Vice Chairman Gee made a motion to table this case to the month of September.  Mrs. Lance seconded the motion.  The Board voted unanimously.

 

(AYES:  Gee, Lance, Smith, Straney)

(NOES:  none)

CASE HEARD

CASE NO. 18-05  VARIANCE:  SECTION 32.4.B(5) - ZONING ORDINANCE (Side Setbacks in MF-A)

Thomas D. Weaver, 402 Chapel Hill Road, Burlington, NC

 

EVIDENCE PRESENTED:

Mr. Joey Lea explained that Mr. Weaver is in the process of buying a parcel of land on Chapel Hill Road that is zoned R-9. Mr. Weaver is proposing to develop a multi-family dwelling on the property that requires a density of 9,000 square feet of land per unit under MF-A guidelines and is required to have 25 foot side yards. That requirement would include anything that exists and the existing house is approximately 11.4 feet from the side lot line and requires a variance of 13.6 feet.   For the proposed building, Mr. Weaver  is requesting an 11½-foot variance on each side of the unit because it is proposed to be 13½ feet from the property line. All parking areas will be paved and all of the other conditions of the requirements for multi-family are being met. Mrs. Lance asked if this could be combined to be one variance? Mr. Lea stated that it could be one statement with two separate variances.  Mrs. Lance asked, so they need an 11½-foot variance on each side and a 13.6-foot variance to the left side of the existing house?  Mr. Lea stated that is correct. Ms. Straney stated that all buildings and accessories on any lot should not cover more than 25% of the total land area. Ms. Straney asked if that criteria was met with all the buildings on this land?  Mr. Lea stated they are well within that range and this is not a concern.   

 

Mr. Thomas Weaver asked how many Board Members there usually are? Vice Chairman Gee explained there are normally 5 Board Members to meet the requirement of a 4/5vote but in today’s meeting there are only 4 Board Members and they would need a unanimous vote to grant a variance and asked Mr. Weaver if he would like to continue, Mr. Weaver stated that he would like to proceed.

 

Mr. Weaver explained that he has two proposals. One is a back up plan if they don’t approve the variance of the 11.5 feet on each side and presented a few pictures of what he had done in 1992.  The unit that was built in 1992 has had absolutely no problems with neighbors.  Everything is met in particular with the setbacks. The existing house is 11.4 feet off of the property line, which is already there and this isn’t anything I created but I am asking the Board of Adjustment for a variance of 13.6 feet for the house. Mr. Weaver stated that he is proposing to build a triplex in the back and that there is plenty of room for parking. Mr. Weaver stated that he hasn’t had any problems on all four-rental properties that he has  further down the road. Ms. Straney stated that there are no ditches, creeks or power lines so it doesn’t sound like there’s a problem with the land. Mr. Weaver said for this particular building he just doesn’t have the side setbacks because of the existing house in proposal number 1. The property backs up to the Aquatics Center and it is 381 feet deep. Mr. Smith asked why not face them the other way toward the side of the yard similar to the units built in 1992?  Mr. Weaver said he did it this way because he was thinking that in years to come this property may be rezoned to R-6 and if that happens then I could fit more units in there.  Mr. Smith asked if it would meet the setbacks if set the other way?  Mr. Weaver said it would meet the setbacks but he cannot do anything with the other house because it’s already there.  Mr. Smith said if you put it sideways and change the zone you could put the second one back where this one is proposed.  Mr. Weaver stated that it’s a pretty big deal to get the property rezoned and doesn’t want to go through that right now.  Mr. Smith asked, just to make it clear, if you turn the building sideways do you think it will meet the setbacks?  Mr. Weaver stated that it would and I have another drawing if you want to take a look at it.  Vice Chairman Gee stated that the situation we are dealing with right now is that basically you just told us not to approve your plans because there are other alternatives that you could use to make the highest and best use of the land and achieve the same results.  Mr. Weaver stated that he’s straight and up front and puts everything out on the table.  Mr. Lea said the Board could consider the second option with a variance request to the existing structure.  Vice Chairman Gee explained to Mr. Weaver that what Mr. Lea said was that the Board will bring it into discussion and consider the existing structure but with the proposed building on option two it doesn’t have a variance necessity so we would not be voting on that at this point in time.  Mr. Weaver stated that the main reason why he wanted the building turned is because it backs up to the City Park and there will be patio’s on the back and it would give the people more privacy and if he has to put up a fence for privacy he will do that also.  He also stated that he thought he would be giving the other property owners on the sides more privacy.  Vice Chairman Gee asked if he would like to add anything to his testimony right now.  Mr. Weaver said that he meets all of the criteria but he’s just asking for the variance on the existing building at this time.  Ms. Straney stated that there is not a need to get a variance on the existing unless he’s improving the property because it’s a nonconforming structure. Mr. Lea stated that it’s not a nonconforming structure right now. It will be a nonconforming structure if he tries to develop it for multi-family. The property is conducive to multi-family development, however, with the structure being less than 25 feet from the property line the only way it could be developed for multi-family is if the variance was on the existing structure.  Ms. Straney stated that until and unless a specific proposal is brought to the Board for a variance, if one is needed for the additional development, there is no need to consider a variance for the existing structure.  Mr. Weaver said he can meet all of the requirements if he goes with proposal number two with the new structure not the existing structure, even though the proposed structure will meet all of the setback requirements he still must get a variance on the existing structure because he is building on that lot and the variance today is for the existing structure.  Ms. Straney said what she is trying to ask is can we approve that unless an entire package is brought to us? The only reason to approve a variance on the existing structure is if there is further development to the lot and doesn’t that have to be presented to the Board in a package?  Mr. Lea stated that he’s presenting that now and has another drawing.  Vice Chairman Gee asked Mr. Weaver to present the second drawing. Mr. Lea explained that there is nothing here that is different from what was advertised.  Mr. Weaver stated that the main thing to get approved is the variance on the existing house and that he has 40 feet of parking which is required. Ms. Straney asked if it should be a 25-foot setback where the parking is? Mr. Lea stated that it’s just on the building.  Mrs. Marjorie Dix and her husband Floyd live at 408 Chapel Hill Road and they don’t have any objections to this project but they want to understand what he is planning on doing. They have not been made aware of anything and it will affect their property.  Vice Chairman Gee asked them to approach the bench and he proceeded to explain what it is Mr. Weaver is proposing to do.  Mr. Dix asked if this was one story or two stories? Mr. Weaver stated it is one story.  Mr. & Mrs. Dix stated that the complex he built on Trail 2 was very nice and they really like them. Mr. & Mrs. Dix stated that they had no problems with the proposed development.

 

DISCUSSION & FINDINGS OF FACT:  There being no further comments from the public, Vice Chairman Gee turned the meeting over to the Board for discussion.  Vice Chairman Gee stated that it appears that with the proposal the Board is looking at there are practical difficulties in way of carrying out the strict letter of the Ordinance, Mr. Weaver did not create the situation with the existing home that is on the property that he bought and if it was not for him wanting to develop his property then it wouldn’t be in noncompliance. In order for him to maximize the use of his property it does carry out the intent of the Ordinance granting the variance.  The public safety and welfare have not been jeopardized if granted.  Ms. Straney stated that the hardship is the existing house is too close to the property line and it is not a land problem.

 

DECISION:

Mrs. Joyce Lance made a motion to grant a variance to Thomas D. Weaver for the property located at 402 Chapel Hill Road and this variance be for 13.6 feet on the left side of the existing dwelling on the conditions that have been met listed below:

 

1)      there are practical difficulties or unnecessary hardships in carrying out the strict letter of the Ordinance;

2)      the finding of fact is the existing dwelling was there before it was purchased by Mr. Weaver and it’s footprint on the lot is of no fault of Mr. Weaver who inherited it through purchase;

3)      the variance is in harmony with the general purpose and intent of the Ordinance and preserves it’s spirit, the finding of fact is that neighbors that are here are aware of Mr. Weaver’s building ethics and quality of his buildings and agree that he does a good job in everyway;

4)      granting the variance the public safety and welfare have been assured and substantial justice has been served, the finding of fact that the neighbors have also testified that he does an excellent job with the driveways and there is not problem with the safety and welfare of the public.

 

Ms. Charlotte Straney seconded the motion.  The Board voted unanimously to approve the motion on the findings of fact.

 

(AYES:  Gee, Lance, Smith, Straney)

(NOES:  none)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CASE HEARD

CASE NO. 19-05  SPECIAL USE PERMIT:  SECTION 32.13.W - ZONING ORDINANCE (CHILD CARE FACILITY REQUIREMENTS)

Hazel Summers (Tender Love & Care), 316 Trail Four, Burlington, NC

 

Mr. Lea stated that he does not know the status of the applicant and suggests the Board postpone this case.

 

Vice Chairman Gee made a motion to table Case No. 19-05 until September.

 

Mr. Smith seconded the motion.  The Board voted unanimously to table Case No. 19-05 until September. 

 

(AYES:  Gee, Lance, Smith, Straney)

(NOES:  none)

 

 

 

MEETING ADJOURNED:  9:35 am 

 

 

 

 

                                                                                    ___________________________________

                                                                                    Mike Gee, Vice Chairman

 

 

 

                                                                                    ___________________________________

                                                                                    Mary Fanelli, Secretary