MINUTES
BOARD OF ADJUSTMENT
City of Burlington, NC
November 8, 2005
Members Present Members Absent
City: City:
Mr. H.E. “Ed” Wilson, Chairman Mr. Mike Gee, Vice Chairman
Ms. Joyce Lance Mr. Todd
Smith
Mrs. Mary Watson
Mrs. Margaret Stephens
Ms. Charlotte Straney
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 8:30 a.m. He
explained that the city representatives to the Board of Adjustment are
appointed by the City Council. 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.
After the City Applicant and the public have presented all evidence the
Board will then close the meeting to the public and discuss the case and vote,
during this time no more evidence shall be admitted nor any other arguments
made unless the Board wishes to ask the Applicant a question pertaining to the
evidence already presented. Anyone that
tries to make an argument or present any evidence at this time will be out of
order. the Chairperson may order any individuals who willfully interrupt,
disturb or disrupt to leave the meeting, failure to comply with this order is
punishable by imprisonment up to 6 months a fine of $250.00 or both. An affirmative four-fifths vote is required
to grant a variance, special use permit or an appeal.
DUE PUBLICATION
Mr. Joey Lea, Code Enforcement Officer with the City of
Burlington, advised that due notice and publication of this meeting of the
Board of Adjustment and matters to come before it had been made, and all
contiguous property owners were mailed a notice advising of this meeting.
Prior to testifying
before the Board, each party was sworn in or affirmed that the testimony they
were about to give was true to the best of their knowledge.
MINUTES
Chairman Wilson asked
if there were any changes to the minutes from the September 13, 2005 meeting
and the October 11, 2005 meeting. Mr.
Lea stated that the September 13, 2005 minutes were officially approved,
however, there were corrections made so they are being resubmitted for
re-approval. Ms. Charlotte Straney
stated that there is one word that needs to be corrected and that is on page 8
of the September Minutes 4th line from the bottom “once the
foundation way laid” should be “once the foundation was laid”. Ms. Straney stated that on the October 11th
Meeting under Members Present, it should be Todd Smith not Charlotte
Straney. Chairman Wilson asked if there
were any other corrections. There being
no further changes Mrs. Margaret Stephens made a motion to approve the
September 13, 2005 and the October 11, 2005 minutes with corrections. Ms. Straney seconded the motion. There being no
discussion, the motion passed unanimously.
CASE HEARD
CASE NO. 23-05 SPECIAL USE
PERMIT: SECTION 32.13.W - ZONING
ORDINANCE (Child Care Facility Requirements)
Ms. Lizzie
Bigelow (Loving Memories Daycare), 806 North Avenue, Burlington, NC
EVIDENCE PRESENTED:
Mr. Joey Lea explained that
Ms. Lizzie Bigelow, at 806 North Avenue, has submitted an application for a
Special Use Permit for an in-home child daycare to allow for the care for eight
children per shift. Ms. Bigelow does meet the requirements under Section 32.13
W of the Zoning Ordinance. There is
more than adequate fenced in play area and parking would be no more than what
is required for a single-family use.
Mr. Lea stated that he has not received any calls from adjoining
property owners about the daycare itself, but I do have information that needs
to be entered into the record. I
received a call last week from a gentleman who has family in the area and he
informed me that there is a registered sex offender living two doors down from
this location. I called Alamance County
Sheriff’s Department and they confirmed this information. I also checked the
North Carolina Sex Offender Registry and he is registered on the website. Mr. Lea stated that this information is
being entered into the record for information purposes only and cannot be used
as evidence in the decision that the Board has to make for this daycare. It is
only to acknowledge the fact that the City has knowledge of this
situation. Chairman Wilson asked if
there was anything in the Zoning Ordinance to prevent the daycare facility from
being located near a registered sex offender? Mr. Lea stated that due to the
nature of the proceedings of this hearing and
the Findings of Fact that the Board has to make, this information is
irrelevant and I enter it into the record for informational purposes only. I have contacted the Licensing Division of
the Department of Health and Human Services and asked what impact this could
have for State Licensing because part of the requirements of the Special Use
Permit is that she meet all of the requirements of the State. Mr. Lea stated
that I have a copy of an email from the Licensing Supervisor indicating that
although this is a situation, there is absolutely nothing to prevent them from
issuing a license for this daycare as long as Ms. Bigelow meets all local and
state requirements. Mrs. Joyce Lance
asked Mr. Lea if this has been discussed with Ms. Bigelow? Mr. Lea stated yes it has and she is aware
of it. Mrs. Lance asked Mr. Lea if Ms.
Bigelow was aware of this prior to you speaking with her? Mr. Lea state that
she told me that she did not know about it until after she moved in. Mrs. Lance
asked Mr. Lea if she moved in planning to open a daycare? Mr. Lea said I’m not
aware of that and that she does rent the home and there is an Affidavit from
the property owner allowing her to operate the daycare in the home which is in
the file. Chairman Wilson stated that
Mr. Lea has testified that other requirements of Section 32.13.W regarding the fenced in area is at least 100
sq. ft. per child and her entire back yard is fenced in which exceeds the requirement
and parking requirements are no more than what would be required for a
single-family use. Chairman Wilson
asked if there were any general conditions this will not meet? Mr. Lea stated that as far as I am aware, it
does meet all of the requirements of the Ordinance. Mrs. Lance stated to Mr. Lea that this creates a moral dilemma
for the Board and I assume any action of the Board will not result in any legal
liability for either the State or for us personally. Mr. Lea said that the
Board is only obligated to make the Findings of Fact to the requirements of the
Ordinance for the use of the property. The fact that this situation exist is
certainly an issue that is why we are entering it into the record stating we
have knowledge of it being there in an effort to protect ourselves in the event
that something should happen. Mr. Lea
said the Church across the street currently has an afternoon daycare that was
there before this gentleman ever moved in to the area. Chairman Wilson asked Mr. Lea how many
children will she be keeping? Mr. Lea
explained that she is applying for 8 children per shift which is the most the
State will license an in-home daycare and that consist of 5 preschool and 3
school age children.
Ms. Lizzie Bigelow of Loving
Memories Daycare explained that she would like to get a permit to keep 8
children per shift. Chairman Wilson
asked Ms. Bigelow if she operates a daycare now? Ms. Bigelow stated yes and at
the same location. Chairman Wilson asked
if she was expanding and making the daycare larger? Ms. Bigelow stated yes. Chairman Wilson asked how many children are
in the daycare currently? Ms. Bigelow stated I have four on first shift and one
on second shift. Chairman Wilson asked
if Ms. Bigelow’s licensing would have to change? Mr. Lea stated that upon the
Board’s approval, her license will then change. Chairman Wilson asked Ms. Bigelow if she was aware of the
licensing procedures? Ms. Bigelow said yes.
Chairman Wilson explained to Ms. Bigelow that the Special Use Permit
will be void if she does not obtain the new license. Ms. Bigelow stated that
she understood. Chairman Wilson said that Mr. Lea testified that Ms. Bigelow’s
entire back yard is fenced in and it exceeds our codes for the children and
asked Ms. Bigelow how the vehicles will be dropping off and picking up the
children? Ms. Bigelow said that I have
two driveways right beside each other and there is plenty of room to park and
turn around without backing out into the street or parking on the street. Chairman Wilson asked how long she has
operated a daycare? Ms. Bigelow stated I received my license on June 22, 2005
and started operating August 26, 2005.
Chairman Wilson asked if she has any excessive exterior lighting on her
property? Ms. Bigelow stated, I have flood light on the side of the house. Chairman Wilson stated that Mr. Lea has
testified that there is a registered sex offender on her street and asked Ms.
Bigelow if she was aware of that? Ms.
Bigelow stated I am aware of it and I’m trying to take extra precautions by
keeping my front door locked at all times and when taking the kids outside I’m
always in the fenced in back yard with them.
Mrs. Mary Watson asked Ms. Bigelow if she was planning on having more
than 2 shifts? Ms. Bigelow stated I run first and second shifts and I don’t
plan on running a third shift. Mrs.
Margaret Stephens asked Ms. Bigelow if she was taking any precautions at all in
discussing this with the parents? Ms Bigelow stated I have been informing them
since I’ve been trying to get my special use permit and I tell them there is a
sexual predator in the neighborhood and will be keeping a special eye out for
the kids and do what I can to be safe. Mrs. Stephens asked, then you are
disclosing this to the parents? Ms. Bigelow stated yes. Chairman Wilson asked Ms. Bigelow if she had
discussed this with the Police Department. Ms. Bigelow stated that she had not.
Mrs. Lance asked Ms. Bigelow if she would have a problem if the special use
permit was for first and second shifts only? Ms. Bigelow stated that she would
not. Mr. Lea stated that it would be better to leave it open for all three
shifts in the event she opens up a third shift because if she does, she will
have to come back before the Board for an amendment to the Special Use
Permit. Mrs. Lance asked Ms. Bigelow
who helps her with the daycare? Ms. Bigelow stated that right now it is just
herself. Mrs. Lance asked what
arrangements she has in the event she becomes sick? Ms. Bigelow stated that my mother fills in for me and she is 64
years old. Mrs. Lance asked if she was the only relief? Ms. Bigelow said I also
have an aunt that would fill in and she is 54.
Mrs. Lance asked Ms. Bigelow what her reaction was when she was informed
about the registered sex offender living 2 doors away? Ms. Bigelow stated I
didn’t really have a reaction I just know I have to watch my children
better. Mrs. Lance asked if this was
the only location that can be considered for her daycare? Ms. Bigelow stated
that it was. Mrs. Lance said that Mr. Lea testified about the daycare that is
already in the neighborhood and I asked Ms. Bigelow for her reaction because
this is a moral dilemma that nothing is written in the law to prevent this and
I will try to have a positive attitude.
Ms. Straney stated that Ms. Bigelow’s driveway is actually a double
carport and asked if there is room for a car to completely pull in and be off
of the street? Ms. Bigelow stated that there is enough room even with the cars
parked there. Ms. Straney stated that
she did not see lights other than the big mercury light in the back yard and
asked Ms. Bigelow if there were more lights? Ms. Bigelow stated I have motion
lights in the front and back yards, but I do not have any lights in the
carport. Mrs. Lance asked if there
were floodlights on the side of her house? Ms. Bigelow said no, but I have
front porch lights. Mrs. Lance asked
what door the children will be using? Ms. Bigelow said the front door. Ms. Straney asked if it would be something
to consider adding a light on the carport?
Ms. Bigelow stated the light from the front porch shines where they get
out and they don’t have a problem seeing. The one child I have on second shift,
is always walked to the car, but I will get more lighting if I have to. Ms. Straney said I’m thinking as a precaution
in view of the neighborhood situation, but it might be worth it to add another
light. Mrs. Lance asked Ms. Bigelow
what her plans are as far as help when her business grows and if she would
consider a third shift? Ms. Bigelow said I don’t plan on working a third shift
but would like for it to be on my license just in case, but right now that is
not being considered and I don’t think I ever will. Mrs. Lance stated, my concern is that you have to sleep and if
you don’t have other adults in the house and someone that is dedicated to being
awake then there are obvious safety issues.
Chairman Wilson asked Mr. Lea if he was aware of any State regulations
that require an additional person on third shift? Mr. Lea stated I am not aware
of any but she would have to hire help because she knows that she cannot
operate all 3 shifts on her own. Ms.
Straney asked Ms. Bigelow if she knew the exact square footage of the fenced in
area? Ms. Bigelow said no. Mr. Lea
stated that it is more than twice the size that is required. I did a quick
measurement on the outside perimeter and there is well more than enough fenced
in area for the children.
DISCUSSION & FINDINGS OF FACT: There being no comments from the public,
Chairman Wilson turned the meeting over to the Board for discussion. Chairman Wilson stated that it appears she
meets all of the guidelines and doesn’t appear to be any issues with the
general requirements for the permit. Mr. Wilson stated that I agree it is
disturbing for a sexual offender to live two doors down but is not aware of any
provisions for the Board to take to rectify that situation. A special use
permit is permitted by a matter of right if they meet the conditions of the
Ordinance that is defined by our City Council.
Chairman Wilson stated that he is not sure what the Board can do to
prevent an incident of a sexual nature but I am willing to discuss it. Mrs. Lance stated that the only positive
thing is that it is a registered sex offender. There are sex offenders out
there that aren’t registered and there is no law to back us up in any finding
if we let that prohibit the issuance of a special use permit. Of course we find
it disturbing but I understand that moral dilemmas do not enter into a decision
we make when we do not have the law to back us up. Mrs. Lance asked Mr. Lea when making the motion about public
safety, is it appropriate to include the information about the sexual
offender? Mr. Lea stated that public
safety in this situation refers to any adverse effect that this use may have on
the public, not necessarily what this particular situation has on the public
which is irrelevant to the use. Mr. Lea stated that you can include it as a
condition for her to take every step possible in protecting the children and
according to the State, as they told me that they were also of the same mindset
but basically she is taking sole responsibility for these children. Mrs. Straney said in spite of the situation,
as a society we try to give people second chances. We don’t know any details of
this particular situation and it may be a person that would never do anything
again and it is unfair to make the assumption that it’s a dangerous
situation. Mrs. Lance stated that being
in the nursing profession it is known in literature that sex offenders
re-offend. They are the most likely to re-offend more so than someone that
commits armed robbery or murder. There is no cure and it is a huge problem and
I would like to make it apart of the record that I was concerned when I asked
Ms. Bigelow her reaction and her statement was that she really didn’t have one
and that bothers me but Ms. Bigelow also said that she realized that she had to
watch her children closer. Mrs. Lance
stated I’m outraged not toward Ms. Bigelow but I realize we cannot prohibit this
use as said earlier.
DECISION:
Mrs. Joyce Lance 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 it has
been testified that the plans submitted are adequate for this permit to be
issued. There is already a daycare center in the community and this would be an
additional one and will not endanger public health or safety.
2)
that the use meets all required conditions
and specifications
The Findings of Fact that Ms.
Bigelow has testified to are the adequate fencing and that she exceeds the code
requirements for the number of children that she has. Mr. Lea testified the
area is more than twice the size it needs to be and she does have adequate
lighting with motion lights in the front and back and front porch lights where
the children will actually enter. Ms. Bigelow has a driveway that looks to be a
double driveway that she says vehicles can turn around if need be and there
will be no need for parking on the street and there have been no calls from the
adjoining property owners.
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 are that Ms.
Bigelow has four children on first shift and one child on second shift and has
the option to open a third shift if she wants, so there is necessary use for
childcare here with another childcare facility 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 are as Mr.
Lea testified he has spoken with the State and Ms. Bigelow has met her
licensing requirements and as long as she meets all of the Local and State
requirements then this business should not be a problem.
Mrs. Mary Watson seconded the motion. The Board voted
unanimously to approve the motion on the findings of fact.
(AYES: Wilson, Lance, Stephens, Watson, Straney)
(NOES: none)
DECISION:
Mrs. Joyce Lance made
a motion to approve the Special Use Permit for Loving Memories Daycare to be
located at 806 North Avenue, owned by Ms. Lizzie Bigelow due to the previously
stated Findings of Fact that the applicant be required to assure this Board and
the public that she will take every step possible as to assure the safety of
these children and she is assuming sole responsibility for their safety as a
matter of getting this special use permit and the applicant shall complete the
development in accordance to 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. Ms. Charlotte Straney seconded the motion.
The Board voted unanimously to approve the Special Use Permit.
(AYES: Wilson, Lance, Stephens, Watson, Straney)
(NOES: none)
CASE HEARD
CASE NO. 24-05 SPECIAL USE
PERMIT: SECTION 32.13.T - ZONING ORDINANCE
(Recycling Facility Requirements)
Mr. Kent Coble – CSI Recycling, 1136 Cedar
Crest Drive, Burlington, NC
EVIDENCE PRESENTED:
Mr. Joey Lea explained that
Mr. Kent Coble with CSI Recycling has submitted an application for a Special
Use Permit to operate a recycling facility for the recycling of construction
and demolition debris at the location of 1136 Cedar Crest Drive which is the
old Hanford Brick location. The submitted site plan has had some minor
modifications. This plan has been before the Technical Review Committee (TRC)
and approved for it’s plan and development and as proper use of the
property. Mr. Lea stated, I have
received numerous phone calls from the general public in regards to the use of
the property. Most calls were inquisitive and I received a form letter signed
by two people that was addressed to the Mayor and City Council and as you know
this is considered hearsay evidence and I am presenting this for you to decide
whether or not you want to enter this into the record. Chairman Wilson stated, I will enter this
into the record. Mrs. Straney asked if
it was notarized? Mr. Lea stated no, it is only signed by two individuals from
Elon. Mr. Lea stated that there is also
a letter from the TRC in the package stating they have approved the plan. Chairman Wilson asked if there was anything
the TRC wanted to see get done? Mr. Lea said there was one suggestion to close
one of the entrances on the northern side of the property which was agreed to
and a concern about sprinklering the building itself but that issue was
resolved and it was not necessary at this time to do so. Chairman Wilson asked if the Fire Department
checked the fire codes? Mr. Lea stated that a representative from Fire
Department is on the committee and approved the plan. Chairman Wilson asked if transportation recommended one northern
access with a 25 ft. radius? Mr. Lea said yes and that has been completed. Chairman Wilson asked if Section 32.13.T of
the Ordinance as it refers to Recycling Facilities is to be applied to this
project? Mr. Lea stated yes it does but the first two sections do not apply in
this case because they deal with batteries and oils which is not apart of this
process and the third section is up to the Board to decide if they have
adequate screening and if not you can require more. Their site plan does
indicate that they have requested Recycling and Outdoor Storage. Outdoor
Storage in itself requires a special use permit, however, in an I-1 District as
part of the requirements you can have Outdoor Storage with proper opaque
screening and they will be supplying the screening. Chairman Wilson asked Mr. Lea if to his knowledge there will be
no batteries stored or recycled at this facility and there will be no motor oil
or grease stored or recycled there either?
Mr. Lea stated that this is construction and demolition debris that they
will bring in and remove recyclables such as certain metals, concretes and
woods and the remaining portion of the debris will be taken to a landfill. No
batteries or oils will be part of the process.
Ms. Straney asked if the items will just get sorted there? Mr. Lea
stated that some material will be stored for recycling. Chairman Wilson asked how long the materials
would be on-site before being removed?
Mr. Lea said he did not know and the owner can testify to that
issue. Chairman Wilson asked Mr. Lea if
vehicle circulation, ingress and egress to the property, traffic flow and
safety have been addressed by the TRC? Mr. Lea said yes there is a member from
NCDOT on the Committee and it has been reviewed and approved. Chairman Wilson
asked if there was ample parking, loading and unloading areas at the facility,
and if there was any adverse effect on adjoining property owners such as noise.
Mr. Lea stated that there was not.
Chairman Wilson said these are general conditions for the record and I’m
going through them and also want to know about the service entrance, refuse and
service areas with particular reference to ingress and egress of the service
areas and is this the same as the main entrance? Mr. Lea stated that they are
primarily the entrances and exits that were already there and used by Hanford
Brick. The one enhancement is that all of the drives, driveways, and parking
for vehicular traffic have to be paved which is a requirement of the District,
whereas before only the area near the office was paved with the rest being
gravel. This is on the plan as submitted and has not been completed as of
yet. Mrs. Watson asked if the facility
would be utilized for materials within Alamance County only? Mr. Lea said I
have no idea where the materials will come from. Chairman Wilson asked if there were any additional utilities
being added to this property? Mr. Lea said the infrastructure is already
there. Chairman Wilson asked Mr. Lea if
signs and lighting, with reference to glare, traffic, safety, economic effect,
were in general compatibility? Mr. Lea stated that as far as he knows
everything is adequate. Chairman Wilson
asked Mr. Lea if open spaces were required for this use? Mr. Lea said no and in
this particular instance, because of the type of use, the landscaping
requirements did not come into effect. However, on the plan they are adding a
considerable amount of buffering with the trees which again is not required but
they are doing this as a part of their screening. Chairman Wilson asked Mr. Lea if he believes that the
compatibility issue is being met with adjacent properties and other properties
in the area? Mr. Lea stated yes that is my belief.
Mr. Charles Bateman, an attorney
representing the neighbors and others asked Chairman Wilson if he could cross
examine Mr. Lea? Chairman Wilson said yes. Mr. Bateman asked Mr. Lea that in
his testifying about landscaping you stated that this requirement did not have
be met. Is that correct? Mr. Lea said yes, that is correct. Mr. Bateman stated
that this is a Planned Industrial District and asked on what basis do you make
an assumption that the landscaping requirements do not have to be met? Mr. Lea
stated that under the provisions of the Landscaping Ordinance, every use has a
classification by number. If the number of the use of the property does not
change by more than two, it does not have to adhere to the provision of the
Ordinance. Mr. Lea said that this use classification did not change. Mr. Bateman asked if the brickyard use was a
use allowed in an I-1 district? Mr. Lea said that now that use would also
require some sort of special use permit or conditional rezoning because we do
not have a classification for brickyards.
Mr. Bateman asked how long it has been since it has operated as a
brickyard? Mr. Lea stated I’m not one
hundred percent sure but do know that General Shell Brick bought out Hanford
and believes General Shell has been gone about a year. Mr. Bateman commented that it has not been a
brickyard for at least a year, and asked Mr. Lea if there a non-conforming use
limit in the zoning? Mr. Lea stated that if the actual use of the property
changes, then the non-conformity ceases to exist. Mr. Bateman said that if the
use ceases to exist for a certain period of time is it your understanding the
property looses it’s Grandfather status? Mr. Lea stated yes, Mr. Bateman asked,
and what period of time would that be? Mr. Lea said that it is non-conforming
and for a nonconforming use of land it is thirty days. Mr. Bateman asked if it was fair to say than
this particular property must be viewed as any future use now be required to
meet all the standards of the I-1 District? Mr. Lea said yes that is correct.
Mr. Bateman asked, in the I-1 District do the landscaping requirements have to
be met? Mr. Lea said yes they do. Mr. Bateman asked if they were being met by
the proposed applicant? Mr. Lea said yes they are. Mr. Bateman asked Mr. Lea if he had personally examined the
requirements and are testifying that they do meet all the requirements for
landscaping? Mr. Lea said yes. Mr.
Bateman asked Mr. Lea if he testified that there will be no adverse impact on
adjacent properties? Mr. Lea stated based on my knowledge of the use of the property
yes. Mr. Bateman asked if that is viewed as a personal opinion? Mr. Lea said
yes.
Ms. Ramona O’Briant
representing Kent & Brenda Coble and CSI Recycling asked if before
presenting their evidence they could deal with a procedural matter because I
have received information that the folks who are concerned about this project
have obtained legal council to seek a delay in the Board’s decision and I would
prefer not to be in a position to present our evidence if the matter is to be
delayed. Ms. O’Briant stated that we
object to any tabling of the matter but understand that the opposition will
seek to delay it and we would like that issue dealt with before putting on our
evidence. Chairman Wilson asked if at
this time there was a request to table this matter until next month? Mr. Bateman stated that we as opponents do
intend to seek a delay of presenting further testimony. As you know, one of the
key elements in any request for a special use permit is a finding that there
will be no adverse economic impact on adjacent properties. As the Board knows,
this issue of adverse impact value of adjacent properties is an issue that is
technical in nature and one that by the Courts have said mere opinion in
landowners will not support that, which leads us to the inevitable task of
having a late date and time, when obviously they’ve had months to prepare and
fix their time to make up their permit and we have retained an expert who is in
the process of making an economic evaluation of the impact of this particular
use on the surrounding properties and that is a very detailed study as you
might imagine and one that cannot be obtained in a few days time, but we have
been assured that we could have this economic impact witness available with the
supporting documentation at the next monthly meeting of the Board, so yes, we
will be asking the Board to delay it’s decision and delay the close of
testimony until next month which would allow us then to provide what we believe
this Board needs and that is an expert opinion from an unbiased source relating
to economic impact which is the use on the adjacent properties. This is a long
way of saying yes, we are going to ask for a continuance. Ms. O’Briant said I would prefer a called
meeting sooner than the next scheduled meeting because my client has invested
quite a bit of money already and has contracts pending, and I would also like
to speak to our objection in any delay. This matter was submitted to the TRC
with application being filed on September 28, 2005. The first article ran in
the newspaper on September 29th and there has been at least one
subsequent article. There has been a television report, notices from the
Planning Department, and I believe there has been adequate opportunity for
anybody that was opposed to this project to seek council and seek any expert
testimony that they might want to seek. My client should not be held
accountable for the fact that they did not seek council until recently when
they knew that this project was out there and what it would entail, so we would
object to a continuance. If the Board is inclined to continue the matter we
would like it to be sooner than the next monthly meeting if at all
possible. Chairman Wilson stated that
this is a volunteer Board and we do not get paid. We serve as a duty to serve
our community and I do not know if the Board would be willing to hold a special
meeting to hear this but we’ll discuss that.
Mr. Lea stated you need to decide based on the merits of whether you
want to postpone this or not as opposed to straight out postponing it. Also in
all fairness it would be better for the Board to consider a called
meeting. Chairman Wilson stated that
procedurally we have gotten off track. Typically you present your evidence then
the applicant presents it’s evidence, then the public is allowed to speak and
the meeting is adjourned and obviously there is a lot of people here today that
want to speak, but we need to hear the applicant’s evidence before the public
can speak so we need to deal with the issue of tabling this before anyone else
speaks. Mrs. Lance said if we choose to
table the issue then Mr. Lea highly recommends the Board make every attempt to
make a special meeting. Mr. Lea said yes that is my recommendation. Chairman Wilson said in order to have a
special meeting then we need to allow the community to gather their evidence
and we cannot have a meeting before they are ready because there would be a
motion to table the issue again. Mr.
Lea stated that it is a matter of fact of whether they will be ready. They are
not ready now, will they be ready then? We can get a meeting together in
probably less than two weeks. Mrs.
Lance stated, so we don’t have to address that issue today when we are looking
at tabling the issue We are sort of left at whenever they are ready. We cannot
schedule the meeting because they are not ready. Mr. Lea stated that is true,
you must decide if they have had adequate time to be prepared and if they have,
then obviously you should hear the meeting. If you don’t think they’ve had
adequate time then you need to consider postponing the meeting because in the
interest of time this does hinge on the sale of this property in getting the
special use permit that the Board consider a meeting at it’s earliest possible
date. Ms. O’Briant stated we have
complied with all of the time requirements on applications for both the TRC and
the Board of Adjustment As I said before, the public has been aware of this
project for well over a month and could have made arrangements to have
testimony heard today if they had chosen to do that. Chairman Wilson stated, I respect that statement but typically we
see this a lot when the public comes in to oppose something, the public is not
prepared to deal with these issues with any evidence at all stating they don’t
want this in their neighborhood but in this case, the public, or a
representative from the public has actually hired an attorney and intend to
oppose this and in my opinion that is more of an effort than what typically
comes before the Board and I’m inclined to grant the delay and allow them to
gather the evidence that they need. Ms.
O’Briant stated, I understand this is different from what is normally dealt
with, but they have had over a month and could have hired an attorney a month
ago rather than just recently and it is my understanding that they just hired
an attorney within the past several days, so they made a decision not to get
ready earlier and they’ve known about the project for some time so if you are
inclined to grant a delay than I would request that it not be for a full
month. Mrs. Lance asked to clarify that
they have known about this project since September 29th. Ms.
O’Briant stated that is when it was first in the paper and then the letters
that you see are referenced to the articles in the newspaper which is the
letter that prompted the television report as well. They have been aware of
this for some time and now it has been submitted to Fox 8. Chairman Wilson
stated that neither of the letters have any dates on them. Ms. O’Briant stated
we’ve had a copy of the letter for over a week so it was sometime before
that. Mrs. Lance stated, I don’t see a
month being a lot of time for people to organize, get together in one month’s
time and hire an attorney to represent them in 30 days. I don’t see that as a
long period of time. If it were 90 days maybe, but I think these things take a
while and with all respect to your position it’s hard to get enough people
together to plan a wedding let alone something that is going to impact their
pocketbooks and their quality of life so I tend to not be concerned about
it. Chairman Wilson asked Ms. O’Briant
if she would like to add anything? Ms. O’Briant stated that she would like to
comment that we indicated that they have already attained an expert so they are
not going to have to go out and find somebody.
Chairman Wilson asked Mr. Bateman if he knew when his expert would be
available with his evidence? Mr. Bateman said obviously I would rather schedule
it to the December meeting because if we try to do something before then we
fall into the Thanksgiving Holiday and that could present a problem with
everyone trying to get together and I cannot really see five or six days making
a difference. In any event we need at least three weeks to have everything put
together to go over the investigation. Besides I hardly see it worthwhile in
trying to interfere with the Thanksgiving Holiday. Ms. O’Briant asked when the next meeting is scheduled? Chairman
Wilson said that it is the second Tuesday of December. Ms. O’Briant said that
would be Five weeks from now and not four weeks. Chairman Wilson stated that in
addition to scheduling a special meeting we have to be sure we have a quorum
because we are sitting today with one regular member that is absent but it is
typically challenging for everyone on the Board to find another date in the
month to meet. Mrs. Lance asked Ms. O’Briant what the hardship is for her
clients in continuing this for a month other than the financial impact? I
understand the opponents position and I don’t have a problem with that. Ms.
O’Briant explained they have a contract that expires at the end of December and
if we would come back here on December 13th which is five weeks from
today and if there is another continuance sought it would create a significant
issue for my client. So if we could meet in three weeks that would allow us
some time too. Chairman Wilson stated that a second continuance would again
have to be approved by this Board and we might be less likely to approve that
at a December meeting. Chairman Wilson
explained, I cannot meet in November because my schedule is packed. The
Vice-Chairman can sit for me. Mrs. Lance stated, I cannot commit to a special
meeting. Mrs. Stephens said I think they should leave it at the regular time to
agree with some of the Holiday comments that have been made. I will be gone the
entire week and totally unavailable the week of Thanksgiving.
DECISION: Chairman Wilson made a motion to grant a
continuance until the next regularly scheduled meeting being held December 13,
2005 to hear Case #24-05 application of a Special Use Permit by Kent Coble of
CSI Recycling, Mrs. Margaret Stephens seconded the motion.
(AYES: Wilson, Lance, Stephens, Straney)
(NOES: Watson)
Chairman Wilson stated that
the motion carries with 4 final and 1 negative vote this meeting has been
tabled until the December 13, 2005 meeting.
MEETING ADJOURNED: 9:40 am
___________________________________
Ed
Wilson, Chairman
___________________________________
Mary
Fanelli, Secretary