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BOARD OF ADJUSTMENT
City of Burlington, NC
Mrs. Joyce Lance Mrs.
Mr. Todd Smith
Also present was Mr.
Joey Lea, Code Enforcement Officer for the City of Burlington.
Mr. Mike Gee, Vice
Chairman, called the meeting of the Board of Adjustment to order at 8:35 a.m. He
explained that the city representatives to the Board of Adjustment are
appointed by the City Council and the representatives of the Extraterritorial
jurisdiction were appointed by the County Commissioners. This is a quasi-judicial hearing. Everyone speaking before the Board should
state their name, sign the log on the podium, and swear or affirm that
everything they say is true to the best of their knowledge. Appeals of the Board’s decisions may be
taken to the Alamance County Superior Court.
The City will state their position because of their knowledge of the
case and the technical codes. The
applicant will state their case, and then anyone from the public may
speak. The Board will then close the
meeting to the public and discuss the case and vote.
Vice Chairman Gee stated that normally they are a Board of
5 Members which allows for one negative vote but today they are a Board of 4
which requires a unanimous vote to grant approval on the cases today and if
anyone would like to have their case tabled until September they can do that at
the time their case is read.
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.
Vice Chairman Gee explained that there were only four
Board Members present and that it would take a unanimous vote in order to
approve the request and asked if they would like to continue or postpone the
case until a full Board could be present?
Ms. Lynn Foyer a representative of the Church stated that they would
like to continue.
Mr. Joey Lea explained that
the Northside Church of Christ is applying for a special use permit for a
daycare facility to be located inside the Church. According to the site plan
there is ample parking located on the side of the Church, a fenced in play area
with a minimum 1,000 sq. ft. and this daycare does meet all of the general and
specific requirements of the Ordinance.
Ms. Lynn Foyer of Northside
Church of Christ explained that their congregation would like to open a daycare
and shows the Board pictures of the Church’s property and stated that it will
be operated through their outreach ministry for the community that needs a lot
of positive reinforcement to help with parenting skills and to be able to reach
out to this community through the ministry.
Vice Chairman Gee asked if they have received their certifications for
the daycare yet? Ms. Foyer stated they
are in the process of getting the certifications along with the inspections but
needed to have the special use permit first. Ms. Straney asked what the hours
of operation would be? Ms. Foyer stated that the daycare would operate from
6:30 a.m. until 5:30 p.m. Mr. Smith
asked if that was Monday through Friday and if those hours would conflict with
Church traffic? Ms. Foyer stated it would be Monday through Friday and that
there would be no conflict with church activities. Mr. Smith asked if there was plenty of parking? Ms. Foyer said
that there is an adequate amount of parking.
Ms. Straney asked if there is a concern for lighting and if the daycare
would run past 5:30? Ms. Foyer said that it would not. Ms. Straney asked which entrance would be
used for the daycare? Ms. Foyer stated
the handicap entrance is the one they would use. Ms. Straney asked if they
would be using the metal steps on the other side for any reason. Ms. Foyer stated that the metal steps lead
to another level that leads up to the top sanctuary and will not be used by the
daycare. Ms. Straney asked if there
would be extra fencing or a screen of some type since the play area is so close
to the neighbor’s driveway? Ms. Foyer
stated that what is there is what is going to be used and she does not have a
problem with the play area being that close to the driveway and neither does the
adjoining property owners. Ms. Foyer mentioned
that the neighbors came over on Saturday and they foresee no problem with the
daycare being there and that this is a good thing for their community.
Vice Chairman Gee explains
that this is an existing Church and they have vehicle circulation, which is not
going to change. The door to be used is right next to the parking lot and Ms.
Foyer said that they would be using the handicap entrance on the side of the
building to load and unload the children.
Mr. Smith asked what that area of the building is used for now? Ms.
Foyer said that it is the fellowship hall and the primary use will be for the
DISCUSSION & FINDINGS OF FACT: There being no further comments from the
public, Vice Chairman Gee turned the meeting over to the Board for discussion. Ms. Straney stated this meets all four
requirements and that safety is not an issue, traffic patterns have not
changes, there is adequate parking so there is not an ingress or egress issue
and doesn’t seem that any special requirements are an issue here.
Ms. Charlotte Straney made a motion that the four required
conditions for issuing a Special Use Permit in accordance with Section
32.13.B(1)(A) are met due to the following Findings of Fact:
that the use will not materially endanger the
public health or safety if located where proposed and developed according to
the plan submitted and approved.
The Findings of Fact are that the
neighbors do not object, there are no safety issues, the parking and traffic
ingress and egress are already established and there is no endangerment to
public health or safety.
that the use meets all required conditions
The Findings of Fact testified by
the City are that all of these conditions are met by the local Ordinance and no
specific conditions that have already been mentioned have to do with vehicle
circulation, parking and loading is ok.
that the use will not substantially injure the
value of adjoining or abutting property or that the use is a public necessity
The Findings of Fact is that no
one has objected and this will improve the property because of the necessity of
the daycare in the area.
that the location and character of the use, if
developed according to the plan as submitted and approved, will be in harmony
with the area in which it is to be located and in general conformity with the
plan of development of Burlington and it’s environs.
The Findings of Fact is that it
has been established that they need to have a daycare and it is very common to
have daycares in Churches in residential areas and this is in harmony with the
area where it is to be located.
Mrs. Joyce Lance seconded the motion. The Board voted
unanimously to approve the motion on the findings of fact.
(AYES: Gee, Lance, Smith, Straney)
Ms. Charlotte Straney
made a motion based on the previously stated Findings of Fact to approve the
Special Use Permit for the Northside Church of Christ Daycare to be located at
820 Harris Street in Burlington, the applicant shall have approval by the State
and if any of the conditions affixed hereto or any part thereof shall be held
invalid or void, then this permit shall be void and of no effect. Mrs. Joyce Lance seconded the motion. The
Board voted unanimously to approve the Special Use Permit.
Mr. Joey Lea asked the Board to re-open Case #13-05 of
Jonathan Blake requesting a sideyard setback variance. Mr. Lea stated that
after being notified by one of the adjoining property owners it was discovered
that we were given the wrong address for the variance location, which means
that the Board actually gave a variance to the wrong property. Mr. Lea stated
that because of that and other evidence that the board will hear I am
recommending that Case #13-05 be re-opened.
Mr. Todd Smith made a motion to re-open Case #13-05, Mrs.
Lance seconded the motion.
The Board voted unanimously to re-open the Case.
Mr. Lea stated that the builders are in the process of
constructing the house located at 1439 East Maple Avenue. In the original
application it was recognized as 1433 East Maple Avenue and that was
incorrect. Mr. Lea explained that
several weeks ago the property owner to the right of the property came to my
office and that’s when it was discovered we were working with the wrong
lot. During the conversation several
issues arose. In the original testimony it was stated that the City of
Burlington was to some degree responsible for the setbacks being approved
incorrectly. What actually happened is that the surveyor was wrong. The stakes
were in and the strings were pulled when the Building Inspector did the
inspection and it did show a 10-foot setback and that’s how it got approved.
The neighbor’s had their own survey done and that’s when it was discovered
there was a problem with the property line.
Mr. Lea stated that Mr. Blake had been trying to secure some property
from the adjoining property owner to make his setback correct but it did not
work out so that is why he came before the Board for a variance. Mr. Lea asked the board to make the variance
that was granted to J. Blake Builders on June 14, 2005, null and void due to
the fact that the variance was granted to the wrong property.
Mrs. Lane made a motion to make the variance that J. Blake
Builders had received on June 14, 2005 for 1433 East Maple Avenue null and
void. Mr. Todd Smith seconded the
motion. The Board voted unanimously to null and void the variance that was
granted to J. Blake Builders on June 14, 2005 for 1433 East Maple Avenue.
Vice Chairman Gee asked if there was anyone to represent
J. Blake Builders. Mr. Dan Overby an Attorney with the Vernon Law Firm
approached the bench and Vice Chairman Gee explained that there are only 4
members of the Board here today and this would require a unanimous vote to
grant the variance and asked if he would like to proceed. Mr. Overby stated that in speaking to his
client they would like to have their case heard next month.
Vice Chairman Gee made a motion to table this case to the
month of September. Mrs. Lance seconded
the motion. The Board voted
Mr. Joey Lea explained that
Mr. Weaver is in the process of buying a parcel of land on Chapel Hill Road
that is zoned R-9. Mr. Weaver is proposing to develop a multi-family dwelling
on the property that requires a density of 9,000 square feet of land per unit
under MF-A guidelines and is required to have 25 foot side yards. That
requirement would include anything that exists and the existing house is
approximately 11.4 feet from the side lot line and requires a variance of 13.6
feet. For the proposed building, Mr.
Weaver is requesting an 11½-foot
variance on each side of the unit because it is proposed to be 13½ feet from
the property line. All parking areas will be paved and all of the other
conditions of the requirements for multi-family are being met. Mrs. Lance asked
if this could be combined to be one variance? Mr. Lea stated that it could be
one statement with two separate variances.
Mrs. Lance asked, so they need an 11½-foot variance on each side and a
13.6-foot variance to the left side of the existing house? Mr. Lea stated that is correct. Ms. Straney
stated that all buildings and accessories on any lot should not cover more than
25% of the total land area. Ms. Straney asked if that criteria was met with all
the buildings on this land? Mr. Lea
stated they are well within that range and this is not a concern.
Mr. Thomas Weaver asked how
many Board Members there usually are? Vice Chairman Gee explained there are
normally 5 Board Members to meet the requirement of a 4/5vote but
in today’s meeting there are only 4 Board Members and they would need a
unanimous vote to grant a variance and asked Mr. Weaver if he would like to
continue, Mr. Weaver stated that he would like to proceed.
Mr. Weaver explained that he
has two proposals. One is a back up plan if they don’t approve the variance of
the 11.5 feet on each side and presented a few pictures of what he had done in
1992. The unit that was built in 1992
has had absolutely no problems with neighbors.
Everything is met in particular with the setbacks. The existing house is
11.4 feet off of the property line, which is already there and this isn’t
anything I created but I am asking the Board of Adjustment for a variance of
13.6 feet for the house. Mr. Weaver stated that he is proposing to build a
triplex in the back and that there is plenty of room for parking. Mr. Weaver
stated that he hasn’t had any problems on all four-rental properties that he
has further down the road. Ms. Straney
stated that there are no ditches, creeks or power lines so it doesn’t sound
like there’s a problem with the land. Mr. Weaver said for this particular
building he just doesn’t have the side setbacks because of the existing house
in proposal number 1. The property backs up to the Aquatics Center and it is
381 feet deep. Mr. Smith asked why not face them the other way toward the side
of the yard similar to the units built in 1992? Mr. Weaver said he did it this way because he was thinking that
in years to come this property may be rezoned to R-6 and if that happens then I
could fit more units in there. Mr.
Smith asked if it would meet the setbacks if set the other way? Mr. Weaver said it would meet the setbacks
but he cannot do anything with the other house because it’s already there. Mr. Smith said if you put it sideways and
change the zone you could put the second one back where this one is
proposed. Mr. Weaver stated that it’s a
pretty big deal to get the property rezoned and doesn’t want to go through that
right now. Mr. Smith asked, just to
make it clear, if you turn the building sideways do you think it will meet the
setbacks? Mr. Weaver stated that it
would and I have another drawing if you want to take a look at it. Vice Chairman Gee stated that the situation
we are dealing with right now is that basically you just told us not to approve
your plans because there are other alternatives that you could use to make the
highest and best use of the land and achieve the same results. Mr. Weaver stated that he’s straight and up
front and puts everything out on the table.
Mr. Lea said the Board could consider the second option with a variance
request to the existing structure. Vice
Chairman Gee explained to Mr. Weaver that what Mr. Lea said was that the Board
will bring it into discussion and consider the existing structure but with the
proposed building on option two it doesn’t have a variance necessity so we
would not be voting on that at this point in time. Mr. Weaver stated that the main reason why he wanted the building
turned is because it backs up to the City Park and there will be patio’s on the
back and it would give the people more privacy and if he has to put up a fence
for privacy he will do that also. He
also stated that he thought he would be giving the other property owners on the
sides more privacy. Vice Chairman Gee
asked if he would like to add anything to his testimony right now. Mr. Weaver said that he meets all of the
criteria but he’s just asking for the variance on the existing building at this
time. Ms. Straney stated that there is
not a need to get a variance on the existing unless he’s improving the property
because it’s a nonconforming structure. Mr. Lea stated that it’s not a
nonconforming structure right now. It will be a nonconforming structure if he
tries to develop it for multi-family. The property is conducive to multi-family
development, however, with the structure being less than 25 feet from the
property line the only way it could be developed for multi-family is if the
variance was on the existing structure.
Ms. Straney stated that until and unless a specific proposal is brought
to the Board for a variance, if one is needed for the additional development,
there is no need to consider a variance for the existing structure. Mr. Weaver said he can meet all of the
requirements if he goes with proposal number two with the new structure not the
existing structure, even though the proposed structure will meet all of the
setback requirements he still must get a variance on the existing structure
because he is building on that lot and the variance today is for the existing
structure. Ms. Straney said what she is
trying to ask is can we approve that unless an entire package is brought to us?
The only reason to approve a variance on the existing structure is if there is
further development to the lot and doesn’t that have to be presented to the
Board in a package? Mr. Lea stated that
he’s presenting that now and has another drawing. Vice Chairman Gee asked Mr. Weaver to present the second drawing.
Mr. Lea explained that there is nothing here that is different from what was
advertised. Mr. Weaver stated that the
main thing to get approved is the variance on the existing house and that he
has 40 feet of parking which is required. Ms. Straney asked if it should be a
25-foot setback where the parking is? Mr. Lea stated that it’s just on the
building. Mrs. Marjorie Dix and her
husband Floyd live at 408 Chapel Hill Road and they don’t have any objections
to this project but they want to understand what he is planning on doing. They
have not been made aware of anything and it will affect their property. Vice Chairman Gee asked them to approach the
bench and he proceeded to explain what it is Mr. Weaver is proposing to
do. Mr. Dix asked if this was one story
or two stories? Mr. Weaver stated it is one story. Mr. & Mrs. Dix stated that the complex he built on Trail 2
was very nice and they really like them. Mr. & Mrs. Dix stated that they
had no problems with the proposed development.
DISCUSSION & FINDINGS OF FACT: There being no further comments from the
public, Vice Chairman Gee turned the meeting over to the Board for
discussion. Vice Chairman Gee stated
that it appears that with the proposal the Board is looking at there are
practical difficulties in way of carrying out the strict letter of the
Ordinance, Mr. Weaver did not create the situation with the existing home that
is on the property that he bought and if it was not for him wanting to develop
his property then it wouldn’t be in noncompliance. In order for him to maximize
the use of his property it does carry out the intent of the Ordinance granting
the variance. The public safety and
welfare have not been jeopardized if granted.
Ms. Straney stated that the hardship is the existing house is too close
to the property line and it is not a land problem.
Mrs. Joyce Lance made
a motion to grant a variance to Thomas D. Weaver for the property located at
402 Chapel Hill Road and this variance be for 13.6 feet on the left side of the
existing dwelling on the conditions that have been met listed below:
are practical difficulties or unnecessary hardships in carrying out the strict
letter of the Ordinance;
finding of fact is the existing dwelling was there before it was purchased by
Mr. Weaver and it’s footprint on the lot is of no fault of Mr. Weaver who
inherited it through purchase;
variance is in harmony with the general purpose and intent of the Ordinance and
preserves it’s spirit, the finding of fact is that neighbors that are here are
aware of Mr. Weaver’s building ethics and quality of his buildings and agree
that he does a good job in everyway;
the variance the public safety and welfare have been assured and substantial
justice has been served, the finding of fact that the neighbors have also
testified that he does an excellent job with the driveways and there is not
problem with the safety and welfare of the public.
Ms. Charlotte Straney seconded the motion. The Board voted unanimously to approve the
motion on the findings of fact.
Mr. Lea stated that he does not know the status of the
applicant and suggests the Board postpone this case.
Vice Chairman Gee made a motion to table Case No. 19-05
Mr. Smith seconded the motion. The Board voted unanimously to table Case No. 19-05 until
MEETING ADJOURNED: 9:35 am
Gee, Vice Chairman