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    Minutes of 4/8/2008 Board of Adjustment Meeting [adopted]
MINUTES

Regular Meeting
Wake County Board of Adjustment
Tuesday, April 8, 2008
9:00 am, Room 700
Wake County Courthouse
316 Fayetteville Street Mall
Raleigh, North Carolina

Members Present (7): Mr. Ronald Raxter (chairman), Mr. Art Odom (vice-chairman), Mr. Tim Sack, Mr. A. Thomas Anderson, Mr. Billy Myrick, Mr. Donald Mial, and Mr. Timothy Clark.

Members Not Present (2): Mr. James Compton and Mr. Terence Morrison.

Staff Present (4): Mr. Steven Finn (Land Development Administrator), Ms. Brenda Coats (Planner II), Mr. Matt Burton (clerk to the Board), and Mr. Russ O’Melia (Assistant Secretary to the Board).

County Attorney Present (2): Ms. Shelley Eason (Deputy County Attorney) and Mr. Bryan Batton (Assistant County Attorney).

Board of Commissioner Member Present (1): Ms. Lindy Brown

Item 1, Call to Order: Mr. Raxter called the meeting to order at 9:02 A.M. with six (6) members present (Mr. Anderson arrived at 9:45 AM.).

Item 2, Elections of Chair and Vice-Chair

Mr. Raxter turned the meeting over to Ms. Eason who opened the floor for nominations for chairman. Mr. Odom nominated Mr. Raxter to serve another term as chairman, and Mr. Myrick seconded the nomination. Hearing no opposition, no discussion, and no other names nominated, Mr. Raxter was unanimously approved 6-0 to serve another term as chairman. Ms. Eason then opened the floor for nominations for vice-chairman. Mr. Sack nominated Mr. Odom to serve another term as vice-chairman, and Mr. Myrick seconded the nomination. Hearing no opposition, no discussion, and no other names nominated, Mr. Odom was unanimously approved 6-0 to serve another term as vice-chairman. Ms. Eason turned the meeting over to Mr. Raxter.

Item 3, Swearing In of New Board Member

Mr. Raxter administered the oath of office to Mr. Clark as an alternate member on the board. Ms. Brown and the board members officially welcomed Mr. Clark to the board.

IN RE MINUTES

Item 4, Approval of Minutes of the March 11, 2008, Meeting:

Mr. Odom made a motion to approve the March 11 meeting minutes as written, and Mr. Myrick seconded. The motion carried unanimously.

Planning Department staff members Steven Finn and Brenda Coats were duly sworn. Mr. Raxter noted that only four regular members were present and assigned Mr. Mial as the fifth voting member for the hearing.

Item 5, BA-SU-2092-08

Petitioner: Michael Bridegum
Landowner: City of Raleigh
PIN: 1751.01 04 7213
Size: 1,462.55 acres
Location: The site is located on the northern side of Battle Bridge Road, north of its intersection with Brownfield Road.
Zoned: Residential-30 (R-30)
Land Use Classification: Special Area – City of Raleigh Long-Range Urban Services Area (LRUSA)

The petitioner is requesting special use permit approval to modify 3 of the conditions of approval for a previously approved special use for the City of Raleigh Firing Range.

SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

Documentary Evidence: Staff report, PowerPoint presentation, Site Plan map, Ortho Map, Zoning Map, relevant sections of the Unified Development Ordinance, and several panoramic videos of the property were shown and/or available.

Testimony: Ms. Coats, Planner II, entered the staff report for BA-SU-2092-08 into the record, and stated the petitioner’s name, zoning classification, and the nature of the special use request. Ms. Coats used a PowerPoint presentation to deliver the staff report and identify the location of the property on an Ortho and Zoning map.

Mr. Sack asked if the 20-foot berm showed in the picture was just in the rear, and Ms. Coats answered yes, and said there is a berm to the west where the live firing is, but none to the east. Mr. Clark asked if condition number five was being addressed or considered today, and Ms. Coats said no, although the initial approval did allow the closing time to be 10 P.M. and the zoning administrator at the time did authorize the extension of time to 11 P.M. She continued that the “future shared area” would not have to come back before the board as it is an allowed use within the zoning district. Mr. Myrick noted that the berm does not come all the way around the live firehouse. Ms. Coats said the petitioner would be raising the berm from 12 feet to 20 feet, and the board has the purview to request the petitioner to enclose completely the berm around the firehouse. Mr. Raxter noted for the record that Ms. Coats and Mr. Myrick did tour the site on April 7, 2008.

Ms. Dawn Bryan, attorney for the City of Raleigh Police Department, Mr. Steven Miller of CLH Design, Deputy Chief Kent Scholar, Major Deb Brown, and Sergeant Rob Council came forward, and all except Ms. Bryan (who is an officer of the court) were duly sworn. Ms. Bryan gave a historical perspective of the property for the past 27 years when she has been the department’s attorney. She said this is an exciting time for collaboration between the city and the county as the Sheriff’s Department will be erecting a training facility out at the range. The city is also planning to build a new training facility in the future once funds are available. Law enforcement training has grown over the years as the department has increased from 200 officers to over 800 officers and with increased state training requirements. The area has also grown from a very rural area to a growing, more suburban area and full-time staff are now assigned to the range. All firearms training takes place at the range (day and evening) and all firing is done in a northerly direction, and a 24-foot berm at the end of the range, which exceeds national standards of a 20 foot berm.

She consulted the minutes from the original hearing in 1978 and she noted that it was discussed that a range house would be included in the range and be within the 1,000 foot rule, and it was built the same time the range was and continues in use today for classrooms, bathroom facilities, etc. The two buildings erected since then may not be within the 1,000 foot rule and are the live-fire house (added in 2001) and the firearms training facility, which allows officers to use simulated, life-size, videoscreens for training. She testified that these two facilities are a compatible use with the property. She added that there is also a driving pad and facility for allowing officers to practice all manner of driving skills necessary for their job, although it too is beyond the 1,000 foot rule.
The department maintains the fences, gates, and security systems, and security is always on high alert when the range is in use. She said there are a number of trees along the tree buffer, many on the right and left of the facility and a break in the middle, which may be the reason for that condition being out of compliance. She assured the board that there have been no trees in the middle in her 27 years with the department, the department did not cut them down, and this area may be used by the utilities or wastewater departments. She said the department held a community meeting where some neighbors expressed concern over the gap in the trees, not from a safety standpoint, but a sound buffer standpoint. She testified that raising the berm from 12 feet to 20 feet surrounding the range will satisfy both safety and a sound concerns. She concluded by addressing the weapons storage. Currently the department is allowed to store only ammunition, but not weapons. This restriction made sense in 1978 because it was more rural and not staffed, but now the department is staffed and has to carry firearms back and forth between the range and the armory. Storing firearms at the range would increase efficiency, and the available vault for storage is secure, large, and meets all regulatory agency requirements for safe storage. No concerns were raised at the community meeting about safety or security concerns about the weapons storage.

Mr. Steven Miller of CLH Design in Cary, NC came forward and addressed the each finding of fact. His firm found that since the range has been in operation, there have been no instances endangering public health or safety. R-30 Zoning Districts allow firing ranges and the site is in compliance with the standards of this zoning district’s uses, setbacks, and impervious surface coverage. He testified that modifications of the three conditions will not injure the value of adjoining properties because the use for which these conditions were written already exist on the site and have for almost thirty years. The catalyst for the requested modifications is to tie safety measures to national standards and to accommodate the need for a joint city/county law enforcement training facility adjacent to the existing firing range. The development will be consistent with the Wake County Land Use Plan. The parcel is not located within the adjacent neighborhood activity center.

Mr. Odom asked where the 1,000 foot rule came from. Mr. Miller said he did not know and could only guess it was for safety. Mr. Odom asked if there are any safety distances recommended for buildings on firing ranges. Mr. Miller said he has been advised that there are none. Mr. Myrick asked to what distance do the petitioners want the rule relaxed. Mr. Miller said they are not in the final design phase yet, they have not identified an exact number, and are asking for this condition to be modified and eliminated because they have assured safety measures will be put in place. Mr. Miller then read from condition number four. Mr. Sack asked if the 1,000 foot rule would be replaced by the proposed condition from which Mr. Miller just read. Ms. Coats said yes. Mr. Odom asked where the “applicable perimeter safety guidelines” appear and if they would appear in the special use permit. Mr. Miller answered that they are referenced in condition number three. Mr. Sack noted that at other ranges around the country, there are buildings outside the live fire area of the range and adequate safety measures are taken into consideration at these sites.

Deputy Chief Sholar came forward and reiterated the department’s commitment to safety at the site and that their existing berms meet and the planned berms exceed national standards. Mr. Myrick expressed a concern that if an officer were firing in the live firehouse, and either slipped or misfired to the left, while unlikely, there is nothing to that side to prevent any accidents should the proposed buildings be erected in that direction. Chief Sholar said the inside of the live firehouse is constructed with rifle-rated steel with a plywood lining, so there is no chance of any bullets ricocheting out. Mr. Myrick asked how far away would the buildings have to be for the department to feel safe. Chief Sholar replied that the department was comfortable with any distance, especially with the presence of the horseshoe berm in place. He then showed some pictures of the live firehouse to the board.

Sergeant Rob Council, supervisor at the range, came forward and said that because the live firehouse is so well insulated, no berm is required, although the berm the department is planning to erect exceeds national standards. Mr. Myrick asked what weapons are used at the range. Chief Sholar said pistols, shotguns, and rifles, and targets on the berms are no more than 8-10 feet off of the ground. Mr. Myrick asked what was behind the berms with the targets. Sergeant Council said open fields are there, security has never been a problem at the range, and the staff always checks the secure areas before any firing is done.

Sergeant Council then spoke about the ammunition vault and said it is a Type Two Magazine, which has inch steel, lined with hardwood that is rated for explosive-type materials, yet the range would only be storing small-arms ammunition there. It meets the ATF standards for a Type Two Magazine and has a 24-hour alarm monitoring system wired into it. Mr. Sack asked if the weapons would be stored there as well, and Sergeant Council said yes. Mr. Myrick asked if the 1,000 foot rule was reduced to some given number, would that cause a hardship to the department’s plans. Chief Sholar and Ms. Bryan said the modification would bring them into compliance with what is there now and it would not cause a hardship.

Mr. William Balcom, of 7920 Old Balcom Road, Raleigh, came forward and was duly sworn. He testified that the firing of thousands of rounds of munitions, and the resulting noise, especially if there is to be no woods buffer, is a nuisance. He testified that no one’s interest is served in eliminating condition three, which the board put in place over thirty years ago. He suggested that the petitioner resubmit the request maintaining the 300 foot wooded buffer surrounding the firing range.

Mr. Myrick asked if he only had a concern with condition three. Mr. Balcom said yes. Mr. Raxter asked staff if there is a buffer requirement where this property is located. Ms. Coats said if this petition was coming before the board as a new use, then there would be a landscape buffer requirement. This is 1,500 acres that was originally heard by the board in 1978 and the only buffer requirement at that time was the one placed in the condition. Mr. Raxter asked if the petitioners needed approval to build the new structure on the firing range. Ms. Coats said yes, it requires staff approval only, and staff would look at the existing site, which is wooded, and does seem to meet the intent of the code in terms of the landscape requirement. Mr. Raxter asked for confirmation that neither the city nor the county can do anything new to the property in developing it that would cause it to infringe upon the buffer. Ms. Coats said that is correct. Mr. Sack asked the petitioner what the purpose is of eliminating the 300 foot buffer language from the existing condition. Ms. Bryan answered that the trees are not there now and have not been there in her 27 years. She said the site is in compliance except for this small area on the west side of the property. The petitioner’s understanding of the tree buffer was one of safety, which is why the range wants to raise the berm from 12 feet to 20 feet on that side of the property. The department’s contention is that berms muffle sound as well as trees and are safer than trees in stopping bullets. To the extent the tree buffer was intended to be a safety feature, the petitioners claim that they have satisfied any safety needs by raising the 12-foot berm to a 20-foot berm. The berm falls within an area used exclusively by the range, whereas the tree buffer area falls within the utilities usage.

Mr. Mial asked for clarification on taking the language out of condition three, and why the petitioner believes it is necessary. Chief Sholar said it would get the range in compliance with the small area on the west side adjacent to the open field. The tree buffer next to the creekbed would not be disturbed, and the department’s building plans do not involve this area nor would they encroach in this area. Ms. Bryan added that even in the 300-foot buffer, there area trees, but it is not a solid line of trees. There was some discussion by the board on the display map and the 1,000 foot lines. Mr. Raxter noted the black line is from the center of the range, not from the center of the live firehouse. Mr. Odom noted that the requirement states that the existing 300 foot buffer be maintained, not that they have to have a 300 foot buffer of trees. His opinion is that the trees help hide the facility rather than help with safety or sound, and would rather see a modification of the language to read that it is in compliance with the existing features as they exist today. Mr. Anderson the requirement of a buffer is a matter of aesthetics, and he would encourage a buffer screen of evergreen or oak trees. Chief Sholar added that the department planted trees along Battle Bridge Road to help buffer the driveway. To replace the building erected in 1978, the range would have to remove some trees around the parking lot area. Ms. Bryan also added that Mr. Balcom said the loss of some trees, in erecting a facility, was acceptable to him. Mr. Raxter asked Mr. Balcom if this was correct, and he responded yes.

Mr. Clark asked if there was any reason this special use could not be tied to a site plan. Ms. Coats answered it could be tied to a site plan, but it is not because the conditions of a previous approval are being considered for change, and no proposed building is being considered by the board today.

Mr. Julian Balcom, of 3021 Hickory Tree Place, Raleigh, came forward and was duly sworn. Mr. [Julian] Balcom also rose in opposition to the petitioner’s request and after acknowledging the city’s efforts to be aware of safety issues, he said that more trees are better. To the west of the property is a new community that will be impacted more severely by the noise and firing from the range. He said that he would like to see a sentence added to condition three that requires the trees be left alone, unless they need to be cut down for some specific, useful purpose.

Mr. Raxter asked the petitioner if they would be agreeable to changing the wording in this condition to read, in draft, the existing woods be maintained, but that the petitioner be allowed to develop whatever ancillary buildings are necessary to support the firing range. Ms. Bryan said the petitioner would accept this change.

Mr. Raxter read aloud from condition three with the suggested, alternative language for sentence one:

That the approximately three hundred feet of existing woods surrounding the
firing range be maintained provided that structures to support the existing
firing range are permitted.

Mr. Myrick said from his site visit, there appeared to be adequate tree buffers on the north, east, and southern sides, but not as much on the west side. It is important to keep as much landscaping in the area as we can. If some Leland Cyprus trees were planted in the gap, that would help with the sound greatly.

Ms. Eason asked if it would be acceptable for the board to vote that should the petitioner and the neighbors work out an acceptable solution, that it could be incorporated by action of the staff instead of having to come back to the board at a future point. Mr. Raxter said yes. Ms. Eason said to the extent that the board can incorporate into condition three that it is subject to staff approval of the details, she believes that would be appropriate. Mr. Raxter reminded the petitioner of the suggested wording that the range maintains the existing woods provided that the petitioner can build support structures. If the petitioner and the opposition cannot come to agreement, then the issue can come back before the board at some future point.

BOARD DISCUSSION
There was no further discussion

MOTION

Mr. Odom made a motion that in the matter of BA-SU-2092-08, the board find and conclude that the petition does meet the requirements of Article 19-23 of the Wake County UDO and that the special use permit be granted with the recommended staff conditions, and that condition number three meet staff approval upon negotiated items with the modifications made by the chairman to condition number three and that any details implementing the modifications be approved by the staff. Mr. Sack seconded the motion.

Mr. Myrick asked if the petitioner needs to maintain what they have today at the site. Mr. Raxter said yes, but they will need to improve the tree-screening buffer on the western side of the property. Both parties will have to agree to the negotiated items or the matter will come back before the board at some future point.

All voting members voted in the affirmative. This resulted in a 5-0 unanimous vote to approve BA-SU-2092-08. The special use permit was granted with the staff conditions and as recommended in the motion. So ordered.

ORDER

This matter came before the Wake County Board of Adjustment sitting in regular session on April 8, 2008, upon a petition from the City of Raleigh to modify three conditions of the 1978 Special Use Permit for the City of Raleigh Police Firing range, PIN: 1751.01 04 7213, a 1,462.55 acre site is located on the northern side of Battle Bridge Road, north of its intersection with Brownfield Road zoned Residential-30 (R-30). The 1978 approval for the City to operate a Police firing range contained eleven conditions. The City requested this hearing in order to modify or eliminate conditions 3, 4 and 11 of the 1978 approval in order to accommodate expansion related to the proposed joint Sheriff’s Department and Raleigh Police Department use of the property.





FINDINGS OF FACT

1. Condition #3 of the 1978 Special Use Permit states “that the three hundred feet of woods completely surrounding the firing range be maintained so long as the firing range is to be used by the City of Raleigh.”
2. The proposed modification will state ‘That the existing firing range meet all applicable national, state and local guidelines governing perimeter security for outdoor firing ranges.’
3. Some of the width of the existing buffer on the west side of the existing firing range is not 300’ wide.
4. The proposed modification of this condition will reflect current national, state and local guidelines that determine effective and safe perimeter security for firing ranges.
5. The “blue sky range” with no roof or baffles will have a 20-foot tall berm as a safety feature. The existing 289-foot long berm in the direction of fire is 24-foot tall and exceeds these standards.
6. The proposed modification to Condition #3 of the 1978 Special use permit will not materially endanger the public health or safety; will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use; will not substantially injure the value of adjoining property; will not substantially injure the value of adjoining property, and is a public necessity; and is in harmony with the area in which it is located.
7. As a condition to the modification of Condition #3, additional plantings should be made on the west side of the firing range to buffer sound.
8. Condition #4 of the 1978 Special Use Permit states “that no other buildings or use be made of the property . . . for a distance of one thousand feet in any direction from the firing range. . .”
9. The minutes from the 1978 Board of Adjustment meeting discussed that a range house would be included in the range within the 1,000 foot .
10. A range house was built the same time the range was and continues in use today for classrooms, bathroom facilities, etc.
11. The two buildings erected since 1978, the live-fire house (added in 2001) and the firearms training facility, which allows officers to use simulated, life-size, videoscreens for training are within the 1,000 foot limit but are compatible uses to the firing range.
12. The proposed modification will state: ‘Provided that the firing range meets the safety guidelines as set forth by Condition #3, additional buildings and uses may be approved for the areas adjacent to the firing range as long as these uses are compatible with the existing firing range and training facility and are developed in a manner consistent with maintaining a safe perimeter around the existing firing range. The height of berms shall be not less than 20-feet in height in the direction of line of fire per national safety guidelines.
13. The proposed modification to Condition #3 of the 1978 Special use permit will not materially endanger the public health or safety; will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use; will not substantially injure the value of adjoining property; will not substantially injure the value of adjoining property, and is a public necessity; and is in harmony with the area in which it is located.
14. Condition #11 of the 1978 Special Use Permit states “that no weapons be stored at the firing range when it is not in use.”
15. Ammunition is currently stored on the site in a Type Two Magazine, which has inch steel lining with hardwood that is rated for explosive-type materials. It meets the ATF standards for a Type Two Magazine and has a 24-hour alarm monitoring system wired into it.
16. The City proposes to store weapons in the magazine in order to keep from having to transport them to the firing range for each training exercise.
17. The proposed modification to Condition # 11 will not materially endanger the public health or safety; will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use; will not substantially injure the value of adjoining property; will not substantially injure the value of adjoining property, and is a public necessity; and is in harmony with the area in which it is located.

CONCLUSIONS OF LAW

The proposed modifications to conditions ## 3, 4, and 11 of the 1978 Special use permit will not materially endanger the public health or safety; will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use; will not substantially injure the value of adjoining property; will not substantially injure the value of adjoining property, and is a public necessity; and is in harmony with the area in which it is located. IT IS THEREFORE ORDERED:

1. That condition #11 of the 1978 Special Use Permit shall be amended to read as follows: “ That the storage of weapons and associated ammunition be allowed at the firing range as long as the weapons are stored in a manner that meets the City of Raleigh Police Department’s safety and security guidelines.”
2. That Condition #4 of the 1978 Special Use Permit shall be amended to read as follows: “Provided that the firing range meets the safety guidelines as set forth by Condition #3, additional buildings and uses may be approved for the areas adjacent to the firing range as long as these uses are compatible with the existing firing range and training facility and are developed in a manner consistent with maintaining a safe perimeter around the existing firing range. The height of berms shall be not less than 20-feet in height in the direction of line of fire per national safety guidelines.”
3. That condition #3 of the 1978 Special Use Permit shall be amended to read as follows: “That the existing firing range meet all applicable national, state and local guidelines governing perimeter security for outdoor firing ranges. Provided, however that the City preserve a wooded buffer around the actual firing range to the extent feasible, and that the City plant additional noise buffering trees on the west side of the firing range, and that the proposed additional planting plan be made available to opponents who appeared at the hearing for their review and approval.
4. The petitioner must record the notarized form pertaining to the Order of the Board in the Wake County Register of Deeds and return a copy to the Current Planning Section of the Planning Department.
5. The proposed modifications be made to the site and a final zoning site inspection to verify site plan compliance must be performed by the Zoning Administrator within 90 days from the recording of the Order of the Board. ITEM 6, NEW BUSINESS

There was none.

ITEM 7, OLD BUSINESS

There was none.

Hearing no additional business, the meeting was adjourned at 10:51 A.M.