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City of Burlington, NC

September 13, 2005




Members Present                                                                       Members Absent

City:                                                                                        City: 

Mr. H.E. “Ed” Wilson, Chairman                                              Mrs. Margaret Stephens
Mr. Mike Gee, Vice Chairman                                      Mr. Todd Smith

Mrs. Mary Watson

Ms. Charlotte Straney                                                            

Mrs. Joyce Lance                                                  



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


Chairman Ed Wilson, 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. 


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 the July 12, 2005 meeting and the August 9, 2005 meeting.  There being no changes Mike Gee made a motion to approve the minutes.  Mary Watson seconded the motion.  There being no discussion, the motion passed unanimously.











CASE NO. 20-05  VARIANCE:  SECTION 32.12.Z(5) - ZONING ORDINANCE (Maximum Sign Area Permitted in O&I District)

Westbrook Professional Center (Norman S. Regal), 1676 Westbrook Avenue, Burlington, NC



Mr. Joey Lea explained that the Dr. Norman S. Regal, owner of Westbrook Professional Center, is in the process of putting up signage for tenants within his development. The property is zoned O&I Office-Institutional which allows ¼ of the street frontage for signage for the entire property. The property has approximately 300 feet of street frontage and that would allow 75 square feet of total signage.  Mr. Lea stated that Dr. Regal has a plan for his tenants within the development who are asking for a variance of 75 square feet.

Dr. Norman S. Regal stated that he is the developer of Westbrook Professional Center and introduced Brad Harmon who is with Syntech of Burlington.  Dr. Regal stated that when he originally designed the building it was with front signage and said that right now there are small signs next to the doors and in order to stay within the ordinance they are 1 foot by 7 inches. The development has been open for a year and patients have been having a great deal of difficulty in being able to see the signs and there are a lot of older people that come into the buildings. Dr. Regal stated that Dr. Berliner is an OBGYN doctor who takes care of a lot of OB patients and Dr. Lowe is an Orthodontist who takes care of a lot of young drivers and what we are concerned about is with Dr. Berliner and in the case of emergencies they will not be able to see the signs.  Dr. Regal explained that the sign for A.G. Edwards is actually up which is an example of what we’d like to do. Dr. Regal said they are not asking to put anything on the street or change the character they are just asking to identify the different practices. There is one sign for each tenant. Most will have the upper sign but several will need the lower sign to identify which side to go to. Dr. Regal handed out examples of what he would like to have and stated they will all be the same type of lettering and believes this will really add to the development and help people understand where offices are located.  Chairman Wilson asked if all the signs are on the entranceways and if all face the interior of the property?  Dr. Regal stated that they are and basically there’s three entrances on one side and four on the other side so there are seven entrances that face each other and are not facing the street and way in the back there’s three entrances where A.G. Edwards is because they were allowed to put a sign up so the ones that you are seeing are the seven that face each other.  Dr. Regal explained that they have a stone sign at the entrance point that says Westbrook Professional Center and there is no individual identification for anyone on the street. This is all about once you get in and knowing where to go.  Ms. Charlotte Straney asked if he was going to leave the directory sign as is? Dr. Regal stated yes, and that there is just one rectangular directory sign as you enter that has everyone’s name with arrows indicating the direction, but it is once you get inside that it is very confusing because there are multiple doors to go into, especially with older folks. We’ve been here for a year and as we’ve grown we’ve heard more of the same complaints and when A.G. Edwards came in and put their sign up it created another level of confusion.  Dr. Regal stated that in several conversations with Mr. Harmon and Mr. Lea in trying to find a solution and what is being presented today is what they see as the best possible solution for customers and patients.  Ms. Straney stated that when she drove in, the directory sign at first was confusing but then I realized the little arrows were pointing to the different buildings and that I have fairly compromised vision myself and my problem was that the individual signs were gold letters on a black background but I had no trouble in identifying each office even as it is. If those signs were changed to black letters on a white background would that make any difference and are there any other alternatives than a variance?  Dr. Regal said he thinks it’s possible, but again it’s a little confusing with the A.G. Edwards sign in the back. We see a lot of patients there in a more compromised physical condition and it’s been an issue and I don’t know if changing those sign colors would make that much of a difference in directing people when they first come in, as to which way to go.  Ms. Straney asked if the building that does face the street where A.G. Edwards is, are the signs in compliance? Mr. Lea stated that to the best of his knowledge everything that is out there is in compliance. The issue is the total amount of square footage of signage that is allowed for the property which is only a total of 75 square feet by code. Mr. Lea asked Dr. Regal what the maximum amount of tenants was that he can have out there? Dr. Regal stated he can have 15. Mr. Lea stated that in an O&I District the largest sign you can have is a 32 square feet. How the signage is dispersed throughout the center is up to Dr. Regal and it’s not a placement problem it’s a square footage problem for identification of tenants for the public.  Mr. Mike Gee asked if the 75 square feet was for each tenant? Mr. Lea stated no it’s for the entire complex which would equal about 5 square feet per tenant.  Chairman Wilson asked if the signs could be facing the interior?  Mr. Lea stated that in an O&I District they could face the interior.  Chairman Wilson said for a variance they need to know the total square footage, if the total allowed is 75 square feet then we need to know the total needed to give us the difference in making a motion for the square footage of the variance.  Mr. Harmon stated they are looking at a total of 195 square feet. Mr. Lea stated that would be a variance request of 120 square feet of signage.  Ms. Straney asked if the entry signs that say Westbrook Professional Center are a part of what was already counted? Mr. Harmon said yes and that is the property’s identification sign and then we have the directory for finding the appropriate office once you get inside.  Mr. Harmon stated what they are asking for is a better way for clientele to get to their final destination and changing something to the white background with black lettering does improve visibility but does not ultimately get that person necessarily to where they need to go.  Ms. Straney asked if the directory is absolutely necessary because once you get in there you still have to kind of drive down and look at each individual door sign? Mr. Harmon stated that it is more for traffic flow than anything else. Dr. Regal stated the idea of the directory is to get people to the appropriate side of the development.  Mr. Harmon stated that it’s really not any different than pulling into a medical complex which is essentially what this is becoming with the exception of A.G. Edwards because when you pull into the hospital you have a main identification sign then a directional sign that points you toward the direction where you need to go and from that point you come to another sign for your final destination.  Dr. Regal stated that the intent of this versus a medical complex is that he really wants people to park right in front of the door which is advantageous for older patients and children from different sectors of the population. Mrs. Lance asked if since the A.G. Edwards sign had been installed has that become a visual solution for the tenants?  Dr. Regal said yes, but at one point there was a misunderstanding about the O&I District with having to face the street to get a sign. That’s when A.G. Edwards originally came in and there was clarification that signs can face the street as long as it falls within the square footage and it did, so this created continuity problems within the development.  Chairman Wilson stated that because the lot is deep is the reason for the orientation of the buildings on the lot and the reason they don’t face the street. Mr. Lea explained that the sign ordinance is not very conducive to this type of development that is narrow at the street. It wouldn’t be any different for any other district, the problem is the other districts allow more signs per street frontage than the O&I does.  Ms. Straney stated that because it is a narrow and deep piece of land the amount of signage allowed is a problem with the land.  Mr. Lea stated yes that is correct, because you have large enough land to develop as Dr. Regal did, but you don’t have enough to allow signage that would be compatible with the development.




There being no further comments from the public, Chairman Wilson turned the meeting over to the Board for discussion.  Mr. Gee stated there is practical difficulty in carrying out the letter of the ordinance. The nature of the development makes it difficult to identify where the various professionals inside this complex are located and other practical difficulties causing potential problems with patients and emergency vehicles trying to get to various offices. It is in harmony with the intent of the ordinance as Mr. Lea testified even by granting 120 square feet in variance with 15 tenants that is less than 7 square feet per tenant and it does assure the safety and welfare because it makes it more easily identifiable for patients and emergency personnel.  Mrs. Lance stated that it enhances the safety and welfare.  



Mike Gee made a motion to approve a variance of 120 square feet for Dr. Norman Regal for the property located at 1676 Westbrook Avenue, Burlington, with the Findings of Fact being there is practical difficulty in carrying out the strict letter of the ordinance. The nature of the development makes it difficult to identify where the various professionals within the development are located and that there are potential issues with patients and emergency personnel not being able to identify the various offices in the development. The variance is in harmony with the general purpose and intent of the ordinance because it does have a minimal impact when looking at each individual entryway as testified by Mr. Lea assuming 15 tenants in the development which is less than 7 square feet per potential entryway according to the entire project. In granting the variance public safety and welfare have been assured because each office becomes more easily identifiable for patients and emergency personnel effectively creating a safer development than it currently is.  Mrs. Lance seconded the motion.  The Board voted unanimously to approve the variance.


(AYES:  Wilson, Gee, Lance, Straney, Watson)

(NOES:  none)

























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)



Mr. Joey Lea stated that Mr. Jonathan Blake of J. Blake Builders is in the process of building a house at 1439 East Maple Avenue.  Mr. Lea explained to the Board that this was brought to the Board at the last meeting due to the fact that a variance had been granted to an incorrect parcel due to an incorrect address. At that time the Board made the variance null and void so that the case could be reheard for the proper address and proper public notification could be made.  Mr. Lea explained that this is a side yard setback issue with the foundation of the house being too close to the property line. It was not discovered during the initial inspection because the surveyor had placed the pins and the strings were pulled when the inspector did his inspection and that did indicate there was 10 feet or more from the property line to the house which was testified to in the first hearing and ultimately a variance was granted. After that the actual adjoining property owner met with me and it was at the time I realized what had happened. I thought that the City made a mistake, but it was the surveyor who did not survey the property properly, so, Mr. Blake is here to request a variance for the property which is actually 1439 East Maple Avenue for the side setbacks.  Chairman Wilson asked, so the last time the Board granted a variance on the wrong address because they were given the wrong address but all of the details remain unchanged?  Mr. Lea stated yes that is correct and that number was based on what our records had shown. At this meeting he is seeking a variance on the correct address and all of the correct property owners have been notified.  Mr. Gee asked if any of the adjoining property owners have voiced any concerns?  Mr. Lea stated yes and they are here today and that Mr. Blake did try to acquire some land to move the property line so he could get his 10 foot setback but that did not materialize and the other option was to seek a variance at that point of construction. Chairman Wilson asked when the variance was granted?  Mr. Lea stated that the variance was granted  June 14th which was for the address of 1443 East Maple Avenue so the property owner to the right was not notified because according to our records it was the other lot, so this would have had to come back when it was discovered in order to send out proper notification.  Mrs. Lance asked, so this was a surveyor error not a City error? Mr. Lea stated that it appears that it was an issue with the surveyor and where the City was involved was from the actual address that was given to us on the application from Mr. Blake.  Ms. Straney asked if this has to be heard as an entirely new case?  Mr. Lea stated yes that is correct, because the original variance was made null and void at the last meeting.  Chairman Wilson asked Mr. Lea if the Board could refer to the case that was approved in June? Mr. Lea stated that they could.


Mr. Lawson Brown with Vernon, Vernon Wooten, Brown, Andrews, Garrett, PA in Burlington,  representing Mr. Jonathan Blake of J. Blake Builders, submitted an affidavit to the Board from Mr. Blake and asked the Board to look at the second exhibit which is a survey from Mr. Jones that was not finalized until March. Mr. Brown stated that looking at that survey, the portion of the house that is there now is 7.07 feet off of the line so we are asking a variance for a little less than 3 feet with the hardship that would justify in granting the variance.  Mr. Brown stated that the house is 13½ feet or more feet but certainly 10 feet off of the line at the back corner, so the variance is just for the front. The time table on this is that Mr. Blake had bought this property about a year before and also bought the property to the immediate back. When he got ready to build and was looking at the property, the far left side on the Maple Avenue side is the beginning of a curb cut that was a driveway that ran across Mr. Blake’s lot over to the Walter Boone property. So when Don, myself and Jon went out there that was a concern and a representative of the Boone family who is here today, was asked if she understood that her driveway went across the property and she said yes we understand that the driveway crosses over the property and there was no further discussion.  In February, Mr. Blake went into the Inspections Department at the City of Burlington and filled out a Building Permit Application. Mr. Blake believed that 1443 was the proper address and at some point subsequent to that the Inspections Department affirmed that it should have been 1439. At any event Mr. Blake had employed Mr. Jones who was his surveyor. The house was laid out by Mr. Jones so the footings were put where Mr. Jones indicated they should be. There was an issue about where the boundary line was. Mr. Blake has had some discussion with the Boone family trying to resolve the issue and that has been unresolved. In May, Mr. Blake applied for a variance and what he had in his file was a Building Permit that had 1443 on his application that came before the Board in June and that’s when it was voted that the hardship existed and no harm was being done to the public by granting the variance.  Mr. Brown explained that what has transpired subsequent to the Board granting the variance is the fact that it has been determined that improper notice was given because of the 1443 East Maple Avenue address and apparently the Boone family was not notified. The facts are that the hardships are more severe now than before because the Boone family erected a fence along that line based on the Board’s action in June. Mr. Blake framed the house and in July when there had appeared to be an issue, the Board voted to revoke it so that is what brings us back here now.  Mr. Brown stated that in June the evidence was already articulated that after the foundation was put in the surveyor had laid out the foundation of the house close to the property line under 10 feet as the exact dimensions are shown on the survey which is Exhibit B. The surveyor did lack in the survey, and this is a little bit of an odd shaped lot and it is angled toward Maple Avenue and not perpendicular to the street so that added to the confusion of this lot. Also there has been no new construction activity in that neighborhood for quite sometime and this is an improvement to the neighborhood and hopefully that is critical to your decision based on those issues. This is an MF-A property subject to R-6 requirements with a 10 foot side setbacks. The footing inspection has been approved by the Inspections Department with the City of Burlington, the foundation was approved and basically the house has been framed and ready for a framing inspection which cannot be completed until the variance is granted. This variance will not create a public issue and one other issue is that there are inconsistencies within the neighborhood. Mr. Brown submitted a copy of the tax map and stated that highlighted in orange is the house in question which is a white framed house that has some age on it. That house is two feet off of the property of Mr. Blake on the south side. Mr. Blake is considerably off of that line and on the other side where the Boone house is located is substantially further away. Mr. Blake also bought the house on Peace Lane which is 5 feet off of the property line and he’s building another house back there which is 15 feet off the property line. Mr. Brown stated that he is pointing these out for two reasons. One, to show that this is in harmony with what is there, and second to emphasize what he has done in laying out his house at this present location is to come considerably off of the line and it would not be appropriate, if the Boone house were 2 feet off of the line to grant a variance because we are talking about fire and safety issues and the issue would be whether this can be properly served for fire protection services and if you granted the variance here as you have in the past, the evidence is that something that would not create a hazard from the public safety standpoint.  Ms. Straney asked Mr. Brown if the lot that is orange, is the one as you face the front of Mr. Blake’s house it’s to the left of his house?  Mr. Brown said that the orange is Mr. Blake’s house.  Ms. Straney asked if the surveyor had not made a mistake and the original lines had been correct, would we be here today?  Mr. Brown stated that we would not be here had he done his job correctly.  Ms. Straney asked, so there would have been room with a correct survey to build this house with this footprint it just would have been moved over a little bit?  Mr. Brown said yes that is correct.  Ms. Straney said that when the variance request first came to the Board the foundation was already laid and based on the fact that the variance had been approved and everyone thought that everything was in line then construction progressed. Then it was discovered about the difference in the street address and construction was stopped.  Mr. Brown stated that is correct.  Chairman Wilson stated to Mr. Brown that the facts from the approval at the June meeting are the same facts that we are dealing with today and nothing has changed correct?  Mr. Brown said that is correct.  Mr. Gee stated that the only thing that has changed is the house is framed and the roof is on.  Chairman Wilson said that the construction is further along and obviously the address was wrong but we granted the variance before assuming a certain set of facts remain the same.


Mrs. Danetta Boone Moore explained that she stays with her father who is the owner of the property during the weekend to take care of him and one day in February she noticed several surveyors out surveying 4 lots. They came at 9:00 and left about 5:00 and they kept coming back to the telephone pole. She noticed an SUV in the yard the next day who was a surveyor and the line went from where the pole was, 5-feet into her father’s land. That afternoon Mr. Blake and Mr. Lawson came out and walked all four lots and I noticed they were standing in the 5 feet section of their land so I approached them wanting to know what was going on and he said I’m going to build a house starting on this lot here which was beside my father’s.  Mrs. Moore stated that she informed her niece who will be purchasing the house from her grandfather who then contacted a surveyor who came down and the line was where the pole was, so her father knew exactly where his land was.  Mrs. Moore stated that she knows that it is not my driveway but we have used it all of our lives since he had the house.  Mrs. Moore stated that Mr. Blake said he didn’t know that his property line was 5 feet into our property so a few days later Mr. Brown showed up and that raised some red flags with me because I’ve never seen a lawyer come out and walk on land like that, so I told Mr. Blake that whenever it rains it runs down on our lot and he said that it could be fixed and never fixed it.  Mrs. Moore explained that her father had rails erected on his property and when Mr. Blake was clearing land they tore down the rails. When the family comes to visit they used to play on the rails. Mr. Blake never said I’m sorry, I’ll pay for it, put another fence up, nothing was said. The last surveyor that came out tore down part of the fence that’s in the back yard of the property and the other property owners complained and it’s still down. Who would build something and damage someone else’s property in the process and not fix it.  Mrs. Moore stated that she called a fence man to come out and fix the fence that same day and that Mr. Blake said that he needed 5 feet to make their lot legal and I told him no way. Mr. Gee asked Mrs. Moore if her issue was with the original survey of the property? Mrs. Moore stated yes.  Mr. Gee asked if she has seen the survey submitted to the City?  Mrs. Moore said no.  Mr. Gee asked if she was aware that it was an irregular shaped lot? Mrs. Moore said yes. Mr. Gee showed her on the survey the part she is concerned about and stated that it is less than 3 feet to square the lot off.  Mr. Gee asked if she disagreed to that being the actual footprint of the existing lot? Mrs. Moore said no I did not disagree. Mr. Gee stated that from her testimony maybe she considered some land that is her father’s but didn’t actually own it. Mrs. Moore stated that there is no problem with that, it’s the deception that stems back from the conversation I had with Mr. Blake and Mr. Brown.  Mr. Gee stated that he cannot speak for the builder but in making a broad assumption when a builder acquires the lot he has the right to use the lot to build whatever he chooses. Mrs. Moore stated she’s not against what he’s trying to build but not on her father’s property.  Mr. Gee stated he understands that but my guess is that he is trying to improve the property by building a comparable house there as to what’s in the neighborhood but do it as cost effectively as he could for himself as well, and there was room to the other side that he could’ve built further over but there may have been greater expense with building further on the other side and in an effort to comply with the City’s ordinance he had the property surveyed and acted on what was an inaccurate survey.  Mrs. Moore said that he knew where the property line was when he came in the first day and then came in the second day it moved 5 feet over so he knew approximately where it was. Chairman Wilson asked that with the fence up on the property line no one could contest that correct?  Mrs. Moore said yes, that is the property line and when they delivered the brick for his house they put it on my father’s property. Chairman Wilson said now that the property line has been identified with the fence do you object to him building the house where it is located?  Mrs. Moore said yes, if he’s going to build something by deception he should not be able to profit from it, that is why I object.  Chairman Wilson stated that they have to decide as a Board whether or not Mr. Blake tried to deceive you or someone about the 5 foot or if he relied on a surveyor, which by his affidavit, the surveyor made a mistake. Ms. Straney stated that we as a Board cannot determine whether it was deception or not, that’s not our position, and I can understand as a property owner how these things could affect you. The one thing everyone can agree on whether by deception or not that the first survey was incorrect. How that survey came to be wrong we don’t know and is not our issue. You have other issues that we can understand and appreciate where you are coming from but as a Board we have to look at straight facts and given that there was an incorrect survey and work progressed, that is where our discussion has to come from because we have to listen to the facts as presented and opinions cannot always count as much as you want them to. There was a big mistake made in the original survey which was the one event that kicked everything into motion and followed from there. So we cannot take into consideration what he may have or haven’t done correctly or incorrectly on the other lots if there was deception involved. If there is a real issue with the house where it is currently located that is something we can consider if it is too close to your line, but how it all came about except for the incorrect survey is not something we can consider as a Board.  Mrs. Moore stated that this is sitting on Maple Avenue where countless of people drive by and many people have stopped and said how can they do that? My contractor couldn’t do that, or I was denied this.  Chairman Wilson stated that he believes this house could’ve been built on this lot regardless, so if the survey hadn’t been incorrect you would have had a house built there anyway.  Mrs. Lance asked Mrs. Moore that in order for you to be pleased because you believe this was done in a deceptive way you want Mr. Blake to tear down everything he has done and start over? Mrs. Moore said no I want the right thing to be done. Why wouldn’t he contain the run-off?  Mrs. Lance asked Mrs. Moore, did I understand you to say in order for you to be pleased with this Board’s decision that because you believe that this was done in a deceptive manner that you want him to tear down what he has done so far and start over?  Mrs. Moore said yes. What do I tell my nephew and nieces if he is granted this variance that rules and regulations are not for everybody? What do I tell them and if they do anything then they will get police backup and will be right?  Mrs. Lance said that I know that you believe that Mr. Blake and his attorney both attempted to deceive you, however, as a Board Member, I don’t know that.  Mrs. Lance stated that you (Mrs. Moore) haven’t proven it and that puts me in a position of not being able to make a decision to tear down everything he has done. I hear your passion and understand your concerns but it sounds like there are bad feelings with Mr. Blake and his attorney but my position as a Board Member does not allow me to deal with that. I can only deal with the facts. Mr. Blake and his attorney have testified that they have not tried to deceive anybody and understanding all the concerns and the family history it is not proven to the Board. Ms. Straney asked Mrs. Moore if the variance is approved would it make you feel better or more comfortable with the situation if he were to do something to correct the run-off issue? Mrs. Moore said yes it would. 

Mrs. Dana Bunker grandchild of Mr. Boone, stated that she and her husband own the house and the reason I am here is to present the facts. Once the foundation was laid, Mr. Blake had noticed the survey was wrong and I had a surveyor come out and survey the land. Mrs. Bunker submitted a copy to the Board.   Chairman Wilson asked Mrs. Bunker if she had her survey done after the foundation was built. Mrs. Bunker stated yes and everything happened so quickly and I tried to get the survey done sooner, however, the first surveyor didn’t show up and before I had done all of this I called Mr. Lea and asked how can something like this get approved with the side setback? Chairman Wilson asked, so that at that point Mr. Lea was looking at the incorrect survey and wasn’t aware of it, so Mr. Lea and the City were correct in that order because they also believed the survey was correct?  Mrs. Bunker said exactly, it was the first survey.  Chairman Wilson asked, at that point the property was in compliance? Mrs. Bunker said yes in the beginning.  Mr. Lea stated that the only contact I had with Mrs. Bunker was after the variance was granted. She called and asked how he could build it and I said that they got a variance.  Mrs. Lance asked Mrs. Bunker if she contacted Mr. Lea after the June 14, 2005 meeting?  Mrs. Bunker said yes it was before the end of August that she called and that was when they were putting up the foundation and they said it had to be a 10-foot setback.  Mrs. Bunker said that after speaking with Mr. Lea and noticing there was a problem Mr. Blake said that he would correct the problem and at that time there was another surveyor that came out and told me that they needed 5 feet to be in compliance. Chairman Wilson asked if the foundation was already there before he requested and received the variance.  Mrs. Bunker said yes.  Mrs. Lance asked, prior to the construction of this home you all used this as a driveway correct?  Mrs. Bunker said yes, we don’t have a problem with the house being built there it is how close and the fact that for him to build that house and noticing that he would have to put a truck in our yard, that’s the reason why you have a variance to protect the other persons house and land and with my grandfather being elderly it is an issue.  Mr. Gee stated that according to your testimony Mr. Blake had a second surveyor come out that agreed to what your surveyor had said. Mrs. Bunker said yes, Gary Bolding. Mr. Gee said that’s when he stopped construction and applied for a variance.  Mrs. Bunker said he had the surveyor out and then he came to me and they told him look at what’s going on with the yard. With 5 feet in we don’t even have grass anymore, so that’s when we expressed our concerns and said they just do not have enough room. After that they hadn’t heard anything and that’s when she noticed that he is continuing to build the house and then she found out a variance was granted.  Mrs. Lance said so Mrs. Bunker, I’ll ask you the same question that I asked your Aunt. In order for you to be pleased with the outcome of this hearing are you desiring Mr. Blake tear down everything that he has done and move the house? Mrs. Bunker said yes, I would like what’s right to be done but I have more facts to show the Board.  Mr. Gee stated that at the point of the foundation the builder already has $40,000 - $50,000 invested in that house at that point and time, which is a very significant amount of money, now, Mrs. Bunker, if Mr. Blake were to tear the house down and slide the house over about 2-3 feet is that going to make a significant difference on your property?  Mrs. Bunker said yes it will because we are just squished together and even with the fence, a fire truck cannot go between them. We compromised grass, we can’t even have grass in our yard because of the closeness in the side yard setbacks.  Mr. Gee asked Mrs. Bunker if he moves his house would it make a significant impact on her property?  She said it will not make a significant impact but it will make an impact.  Mr. Gee asked Mr. Blake how much money he had advanced on this construction at this point and time?  Mr. Blake said tens of thousands of dollars.  Mr. Gee stated that  the additional 5 feet would be to square his lot up, at the point where he needs the variance he will have an additional 2.93 feet. The surveyor was trying to square the lot up not to adversely come into your property. Mrs. Lance stated to Mrs. Moore and Mrs. Bunker what she wants to convey is that this quasi-judicial objective Board does not have the emotional investment in this that you have. The Board can only look at what they have before them and has to accept these facts as they have been presented under oath as the truth.  Mrs. Lance explained that as a citizen of this county she has a hard time expecting a builder to spend less than $100,000 in tearing down and starting over which will be more than the house will probably sell for, but to be asked to do that as a citizen of this county I cannot in good faith do that. I couldn’t do that if you were in Mr. Blake’s situation or anybody and that is looking from a fair and objective viewpoint because I do not have the emotional investment in this, but I want to make sure you understand that and not feel badly about it, but we don’t have the power to fix that and it seems a bit unreasonable to expect him to spend all of this money for less than 3 feet. If we were talking 50 feet or 100 feet or more, but less than 3 feet, it is just not that much room, or grass.  Mrs. Bunker explained that she understands but thinks the pictures and the effect that the closeness in the yard and the reason the construction is at the point it is now is because I did not receive proper notice. Because the wrong address was written down which is no fault of mine but when

I found out that I didn’t receive proper notice I went to see Mr. Lea and asked if notices were sent out because I never received one being an adjoining property owner and Mr. Lea said no Mr. Blake is building on this property at 1443 which is the Isley house and he said that your telling me that he’s not building on that property and I said no it is the property right beside of us. Then Mr. Lea stated that Mr. Blake the builder told him that he owned the Isley house, but the court system’s records haven’t been updated to indicate it. At that point Mr. Lea said well we have a situation on our hands, and your telling me that Mr. Blake does not own the Isley house, and I said no, and I explained that I called the realtor to find out if Mr. Blake owned the house and they said no he didn’t own the house.  Mrs. Bunker stated that is relevant because that directly affects the notice and makes me feel that notice was not sent to our address intentionally, because then the Board would see a house that is being built perfectly constructed and construction is too far along to turn back and Mr. Lea should be able to testify to that conversation that we had about Mr. Blake telling him that he owns the Isley house and the reason that it showed up being the Isley house is because the tax records do not get updated frequently in the system. That was the conversation that transpired and I just wanted the people to know the facts and that is what happened.  Mrs. Lance said thank you and I appreciate that and I can tell you that I have been on this Board for a little over 2 years but has a close family member that sat on the Board for more than 7 years and I do not know of any intentional mistakes that the Inspections Department Office has made, any deception and certainly I have never known Mr. Lea to do anything that is outside of the law. That is my personal experience.  Mrs. Bunker said I’m not saying that.  Mrs. Lance said I’m sorry that you feel that this is added to your burden because if I thought those types of things were happening I would not be serving on this Board.  Mrs. Bunker explained that Mr. Lea didn’t do anything wrong but wanted them to be aware of what was said to him.  Mrs. Lance said people make mistakes. It is not deception, it’s human error.  Chairman Wilson said even though you didn’t receive notice and therefore you didn’t have the opportunity to present your side of things, at the last meeting we approved this variance based on the facts that are still the same today. The foundation and construction was already at this point and located at the 2.93 feet in violation from the property line. None of those facts have changed and even though we were dealing with an incorrect address written on the paper we still dealt with the facts from the lot and do recognize that you didn’t have the opportunity to contest those which you are being given the opportunity today and those facts have not changed. We approved it once before in good faith in accordance with our ordinance so any deception whether intentionally or not would’ve changed  the way we viewed that case at that time.  Mrs. Bunker asked that when a surveyor makes the mistake are they not held responsible to go back and correct it and that it’s automatically assumed if you lay something down on an estate regardless of what state your in it’s going to fly? Chairman Wilson said this is not the first foundation mistake that has come before the Board. There have been numerous ones that were created by different people including the City, Surveyors as well as Builders who interpret those wrong. More often than not we have granted those variances for that and some more severe than this one and what we have to evaluate is the best alternative as to tearing down a complete piece of construction versus allowing it to continue where it is. We are here to be impartial and that is how we are trying to make our decision.  Ms. Straney stated that the question you raised is something that I wanted to say if for some reason the variance were not approved to me the fault is with the surveyor and along that line of thinking to me the builder should not bear the burden of the cost but he should have to go back to the surveyor whose mistake caused all of this. Mr. Gee stated that all of the original circumstances are the same except for the fact that Mrs. Bunker did not receive proper notification and I want to address that by bringing the applicant back and ask a direct question to Mr. Blake reminding him what he affirmed in telling us is true and that he has submitted an affidavit into evidence. The most substantial difference in this variance request from the first one is that there was improper notification and my question to Mr. Blake is did you willfully deceive the City with providing them an invalid address so the neighboring property owners would not be notified of your variance request? Mr. Blake said absolutely not.  Mrs. Lance asked Mr. Blake if you did not intentionally deceive the City in this instance have you ever in the past deceived the City in your building projects? Mr. Blake said no I have not.  Mrs. Bunker asked Mr. Lea if he recalled when she came to his office and they had a conversation and he told her that the builder Mr. Blake said he owned the Isley house and that’s who he bought it from and the reason it did not show up was because it takes so long for the records to be updated and that’s what Mr. Blake told you. Mr. Lea stated that in the initial variance request I was given the information with the address and when I looked it up, and I do not remember the owner’s name and I am assuming we are talking about the Isley’s, I did notice a discrepancy in the tax records because it came up a name other than Jonathan Blake so I called Jon and asked him if he purchased that property because the tax records did not show that he had, which is not highly unusual because the tax records do not change sometimes for years and he did say he purchased it from the Isley’s or from whom ever I said owned the property. That was the verification that I was dealing with to ensue that I the right property based on tax records and that’s what Mrs. Bunker has alluded to here. Mr. Lea stated that he did call Mr. Blake and verified that he had purchased that property. I was satisfied at that point that we were working with the proper property based on the address that was given by the city, which was wrong and that was determined through a conversation that I had with Mr. Brown as to who actually gave the address. Mr. Lea stated that he is almost certain that in a conversation with Mr. Blake that he stated that he was given that address when he closed on the property. We work off of tax maps and 1443 was the number that was actually given because we had the lot that Mr. Blake is building on addressed as 1443 which was incorrect, so when the Permit Clerk issued the Permit she went back to the property based on the map, block, and lot number that was given and issued 1443 which was wrong in the book and that’s how the address was given. Mr. Gee asked, so the lot that is currently being built upon was an Isley property as well? Mr. Lea stated no, because the 1443 on the computerized records showed that it was the lot to the left and this lot came up 1443 which is exactly what it is. Chairman Wilson asked, so the mistake in the address could be attributed to faulty records which has been testified here today? Mr. Lea said that is correct. Chairman Wilson asked Mr. Lea if in Mr. Blake’s telephone conversation that he deceived you in any way?  Mr. Lea said no.  Mrs. Lance asked Mr. Lea if notification of adjoining property owners is not a State Law or Statute? Mr. Lea stated no not for this particular type of hearing it is a policy. Mrs. Bunker stated that she just wanted that point added because she felt it was pertinent that Mr. Blake said he actually bought the house from the Isley’s and that really shocked me as well as Mr. Lea and I wanted the Board to see what was actually pulled and that the main reason was because they didn’t receive notice.  Mr. Brown stated that he would like to say that the testimony of Mr. Lea certainly bears out the fact that the address was a mistake by the Inspections Department, secondly the testimony of Mrs. Moore and Mrs. Bunker indicates that when construction began there was an issue with the property line of 5 feet and they have now put a fence on the property line so it’s more precise as to where they say it is and thirdly, Mr. Blake has stated that clearly it was nothing on his part to deceive them in acts, words, deeds, by him or the agency. I haven’t built my credibility here for 30 years based on trying to deceive people, clearly, property owners, or anybody else and Mr. Blake would not do that either and he has built enough of these houses to know the law of the land



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 they have heard a lot of testimony in this case but have not heard anything that changes the facts for which we approved this variance originally and there are a lot of emotional issues with this case that I think the Builder and the other property owners can work out and there are other remedies to work it out through a means other than this Board and would recommend approval simply because the facts have not changed and this was approved before.  Mr. Gee stated that Mrs. Bunker actually confirmed the testimony of the prior case plus the applicant with her testimony in that once a surveyor who was hired on her behalf presented the fact there was an irregularity with the setback that Mr. Blake did have another surveyor come in and confirm that it was wrong and that led to our original variance request. The testimony that we heard that there may have been deception in giving the wrong property address so that proper notification to adjoining property owners couldn’t be given as testified by Mr. Blake that he did not do that and given that it is sworn testimony I feel that we have to accept that as presented.  Mr. Gee also said that what it boils down to is a chain of events including this Board granting the variance originally contributing to the hardship that is already in place, and as Mr. Brown has testified he believes that the construction of this house is in harmony with the existing neighborhood, the house is a similar size in nature, there are irregularities in the setbacks along Maple Avenue and I do think it meets the intent of the ordinance as far as safety goes, given the pictorial evidence that we have and there seems to be adequate space on either side to allow access for fire, police or any other emergency services and it does assure public safety.  Mrs. Lance stated that when you compare it to any case that we’ve had here, we have to look at the facts, the surveys, the footprint of the house and for us the actual address of the property is not pertinent in this case. Although the law does not state that adjoining property owners need to be notified once the mistake was uncovered then the adjoining property owner was notified but I think the end result could not be different because the facts remain the same. The survey, the footprint and the adjoining property owner has demarcated the line as they see it with a fence that has been erected since all of this started, so I don’t feel that I have any other option than to approve the variance as requested.  Ms. Straney stated that she does have a concern with the hardship issue. The hardship is not the land the hardship to me is an incorrect survey of the land, which is not Mr. Blake’s fault, and even though construction is very far along even at the point of the first hearing the foundation was laid which was a substantial outlay of money and finances and that is not something that we are supposed to consider as a Board on a variance. The hardship has to be a land issue and there are no creeks, or ditches or other things like that involved. I’m not sure I was on the Board the morning that this case was heard before and most of you know from before that I frequently vote against variances because of my understanding of what we’re supposed to do. I have a real problem with this because I think it is the survey, it does not have much to do with the street address. It’s unfortunate that people were not individually notified before, but to me we are still down to hardship and one of the three tests of whether there are practical difficulties or unnecessary hardships is if the property owner complies with the provisions of the ordinance the property owner can secure no reasonable return from or make no reasonable use of his property. If the survey had been correct and the footprint of the house had been located differently where it could easily have complied with the ordinance then he can make use of the property.  Ms. Straney stated that she does agree that the hardship is not his action; it is the surveyor’s.  Chairman Wilson adds that there have been precedents set by this Board that we have approved other variances at the foundation phase for improper survey’s and those mistakes have always been most of the time done by other parties other than the builder, so, whether it was a surveyor, or a City issue or improper records we have granted variances before because of mistakes in surveys and that is a precedent by the Board.  Ms. Straney stated she does know they have approved variances when there have been a few inches difference when the City Inspectors have gone out, but cannot recall surveys. 



Mr. Mike Gee made a motion to grant a variance of 2.93 feet to be applied to the footprint as presented in the survey by Mr. Jonathan Blake for the property located at 1439 East Maple Avenue, Burlington.  The Findings of Fact are that there are practical difficulties in carrying out the strict letter of the ordinance and Mr. Blake did not create the situation that he is in. He acted in good faith based on a survey that was prepared, presented and approved to the City of Burlington. We approved a variance originally based on this assumption and further Findings of Fact today by evidence presented by Mrs. Dana Bunker that confirm the fact that once Mr. Blake realized he had a problem with his side setback he brought another surveyor in to correct the problem and brought it before our Board to receive a variance.  Mr. Gee stated that because there was improper notification of adjoining property owners, an additional hardship was created in that Mr. Blake had to stop construction again. This Board contributed to that hardship in previously granting the variance. At this point the house is framed, wrapped and roofed and would be impractical in his opinion to ask Mr. Blake to tear the house down and move it 2.93 feet. In granting this variance it will be in harmony with the general purpose and intent of the ordinance given the inconsistency of the neighborhood that it is surrounded by considering setbacks as well as the fact that the house is in similar size to adjoining properties. There is adequate distance between all the adjoining residents to allow for fire, police and other emergency services that contribute to the fact that granting a variance will ensure the public safety and welfare.


Mrs. Joyce Lance seconded the motion. 


(AYES:  Wilson, Gee, Lance, Watson)

(NOES:  Straney)


Chairman Wilson stated that Mr. Blake has been granted his variance with a vote of 4 in favor and 1 against but it does carry and explained to Mrs. Bunker and Mrs. Moore that they have a right to appeal this decision to Superior Court within 30 days and you will receive a copy of the minutes.













CASE NO. 19-05  SPECIAL USE PERMIT:  SECTION 32.13.W - ZONING ORDINANCE (Child Care Facility Requirements)

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



Mr. Joey Lea explained that Mrs. Summers at 316 Trail Four, Tender Love & Care Daycare is applying for a Special Use Permit to allow her to care for 8 children per shift. The site plan that has been submitted is indication that upon our Inspection that she does meet all of the conditions of the ordinance. Mr. Lea explained that he has received several phone calls from area neighbors and no one has spoken in opposition to the daycare.  Mr. Lea explained that individuals with in-home daycares have to have approval for a Special Use Permit prior to being licensed from the State.  Ms. Straney stated that our regulation allows up to 8 per shift.  Mr. Lea said depending upon the nature of the daycare it can be anywhere up to 500 it’s just that the State only allows in-home daycare to be 8 per shift, 5 school-age and 3 preschool age anything other than that is a daycare center, which is a different classification.


Mrs. Hazel Summers explained that she lives at 316 Trail Four and explained that her driveway is 115 feet long. The drop off area is in the back where there is a night light and the side door is where the parent’s come in. The fence is located in the backyard and is 40 feet deep and 39 feet wide which is 1560 square feet. Mr. Gee asks if the driveway length gives plenty of vehicle circulation for parents dropping off and picking up the children? Mrs. Summers said yes.  Mr. Gee asked if she has plenty of parking and loading space? Mrs. Summers said yes.  Mr. Gee stated that she doesn’t need to have anything screened and that she does have a fence on one side and a light and asked if that would illuminate the back yard as well? Mrs. Summer said yes and there is lighting in the front too for parents coming in and out at night. The night light is also in the back yard.  Mr. Gee stated that Mr. Lea also testified that Mrs. Summers meets all of the specific requirements for Special Use Permit for the City of Burlington and asked Mrs. Summers if she had been approved contingently by the State also? Mrs. Summers said that she has. Mr. Gee asked Mrs. Summers if she feels as though she will injure the value of adjoining property owners? Mrs. Summers said no sir.  Mr. Gee asked Mrs. Summer if she believes she will be in harmony with the neighborhood? Mrs. Summers said yes and for 15 years she’s been taking care of children.  Mrs. Watson asked how many children she will be taking care of? Mrs. Summers stated that she would be taking care of 8 on first shift and 8 on second shift. Chairman Wilson asked if there would be any children on 3rd shift?  Mrs. Summers stated no the hours are from 6:30 am till 3:00 and then 3:00 till 11:00.  Chairman Wilson asked if she was the only person providing the care? Mrs. Summers stated that she is the only owner, but does have an assistant.  Ms. Straney stated that it looks like a very narrow driveway and asked if there was enough room for someone to turn around in or do they have to back out? Mrs. Summers stated that in the back yard there is plenty of room for people to turn around in but I do see some of them backing out onto the road.  Mrs. Lance asked if the lights in the front were solar powered or electric lights? Mrs. Summers said they were purchased through Duke Power because whenever a light goes out or something goes wrong with them she has to call Duke Power to come fix them. 





DISCUSSION & FINDINGS OF FACT:  There being no further comments from the public, Chairman Wilson turned the meeting over to the Board for discussion.  Mr. Gee stated that it meets all of the conditions of the City. It won’t materially endanger the public health or safety and there’s adequate circulation for vehicles, lighting, screening and it meets all required conditions. This will not injure the value of adjoining property because it is an approved residential use of the house and it will be in harmony in the area.  Mrs. Lance stated I agree.  



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 there is adequate vehicle circulation, adequate parking, adequate lighting and all the general conditions that would apply to this facility have been met.


2)      that the use meets all required conditions and specifications

The Findings of Fact as testified by Mr. Lea is this use does meet all conditions of the ordinance of the City of Burlington.


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 this is an approved use in a residential dwelling and therefore will not injure the value of adjoining property.


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 according to the testimony of Mrs. Summers that nothing out of the ordinary will take place at this facility that would be a detriment to the surrounding area. 


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


(AYES:  Wilson, Gee, Lance, Straney, Watson)

(NOES:  none)



Mr. Mike Gee made a motion to approve the Special Use Permit for Tender Love & Care Daycare to be located at 316 Trail Four, due to the previously stated Findings of Fact and that 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:  Wilson, Gee, Lance, Watson, Straney)

(NOES:  none)









                                                                                    Ed Wilson, Chairman





                                                                                    Mary Fanelli, Secretary