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    Minutes of 08/09/05 BOA Meeting [adopted]
MINUTES

Regular Meeting
Wake County Board of Adjustment
Tuesday, August 9, 2005
9:00 am, Room 700
Wake County Courthouse
316 Fayetteville Street Mall
Raleigh, North Carolina

Members Present (7): Mr. A. Thomas Anderson, Mr. James Compton, Mr. Art Odom, Mr. Ronald Raxter, Ms. Genevieve Sims, Mr. John Welch, Mr. Jeffrey Willis

Members Not Present (2): Mr. Myrick, Mr. Tim Sack

Staff Present (8): Ms. Melanie Wilson (Planning Director), Mr. Reginald Goodson (Land Development Administrator), Mr. Tim Clark (Long Range Planning Administrator), Ms. Brenda Coats (Planner II), Mr. Larry Morgan (Planner II), Ms. Celena Everette (Planner II), Mr. Joe Mangum (Planner I), Ms. Angel Kropf (Secretary to the Board)

County Attorney Present: Scott Warren (Deputy County Attorney)

IN RE MINUTES

Item 1, Call to Order: Chairman Raxter called the meeting to order at 9:07 a.m. with six (6) members present.

Item 2, Approval of Minutes of July 12, 2005 meeting. Database 'WC - FYI', View 'By Author', Document 'Minutes of 07/12/05 BOA Meeting [draft]' Vice Chairman Odom asked if there were any additions or corrections to the minutes. Ms. Sims made a motion that the Board adopt the minutes as written. Mr. Anderson seconded the motion. All members present voted aye. So ordered.

Chairman Raxter stated for the benefit of anyone in the audience who had not attended a meeting of the Wake County Board of Adjustment, that the meeting is a quasi-judicial proceeding. Anyone wishing to present testimony and/or evidence will be asked to come forward and be sworn or affirmed. The petitioner will be given the first opportunity to present testimony and/or evidence. Anyone wishing to speak in favor or opposition will present testimony and/or evidence. The petitioner will then be given an opportunity to respond.

Ms. Brenda Coats, Mr. Tim Clark, Mr. Larry Morgan, and Ms. Celena Everette were sworn/affirmed to present testimony for staff.

For the record, staff member Mr. Larry Morgan and Board members A. Thomas Anderson and Jack Welch were present on the site tour on Monday, August 8, 2005.

Item 3, BA SU-2035-05:

Petitioner: Sabrina Davis
Landowner: Stony Hill Baptist Church of Wake Forest, Inc.
PIN: 1811.02 68 1177 and 1811.02 58 8378
Location: Western side of Stony Hill Road, north of its intersection with Bud Morris Road
Zoned: R-40W
Land Area: 12.82 acres

Item No. 3 heard at the regular meeting of the Wake County Board of Adjustment held on Tuesday, August 9, 2005, was a Special Use Permit, Petition No. BA SU-2035-05. The petitioner is Sabrina Davis. The landowner is Stony Hill Baptist Church of Wake Forest, Inc. The property is located on the western side of Stony Hill Road, north of its intersection with Bud Morris Road. The following members of the Board heard and decided this petition: Mr. Raxter, Mr. Anderson, Mr. Odom, Ms. Sims, and Mr. Welch.

In this case the petitioner requests special use permit approval to allow for the construction of a 15,274 square foot accessory building with associated parking.

SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

Documentary Evidence: Staff report, PowerPoint slide presentation and videotaped presentation of the site; Special Use Permit Petition; Statement of Justification; Preliminary Special Use Permit Site Plans; Vicinity Map dated 07-27-05; eight photographs: (1) View to north at proposed access drive to site off of Bud Morris Road, (2) View to southeast from site toward intersection of Bud Morris Road and Stony Hill Road, (3) View to south from site across Bud Morris Road, (4) View toward northwest from site off of Bud Morris Road, (5) To the northeast at proposed access drive to site adjacent to Settlers Landing Court, (6) To the southeast at proposed access drive off of Bud Morris Road adjacent to Settlers Landing Court, (7) To the southwest across Bud Morris Road from site towards Settlers Landing Court, and (8) To the northwest at proposed access drive to site adjacent to Settlers Landing Court.

Testimony: Ms. Everette entered the staff report for BA SU-2035-05 into the record and stated that this is a request to allow for the construction of a 15,274 square foot accessory building with associated parking. The petitioner is Sabrina Davis. The landowner is Stony Hill Baptist Church of Wake Forest, Inc. The property is located on the western side of Stony Hill Road, north of its intersection with Bud Morris Road. The property is zoned Residential 40 Watershed and consists of two parcels with 12.82 acres. The site has road frontage on Stony Hill Road and Bud Morris Road. Access to the site will be off of Bud Morris Road. Staff would like to add a condition that the two lots be recombined. The facility will be used for yearly activities and eventually used for the main sanctuary. The use is consistent with the Land Use Plan. The site is required to have 57 parking spaces, and the site is showing 95 spaces. The site plan complies with all transitional bufferyards.

Mr. Jeff Crisp, 1906 South Main, Wake Forest, NC was properly sworn. He stated he was with Crowley & Associates, Inc. They were representing Stony Hill Baptist Church and were the site engineers for the project. He stated he wanted to talk about the transportation area. On the site, there is two proposed driveway entrances to the site. The original site had three, there was an entrance onto Stony Hill Drive. They are going to remove that, which will improve the traffic. They are going to shift an existing drive to line up with Settler's Drive. They plan on making the parking more delineated. They are also going to add some plantings and have some street buffers as well. They will be upgrading the site.

Mr. Crisp went over their stormwater management devices. He presented photos of the proposed building.

Mr. Welch stated the proposed parking was a dramatic improvement over what is currently on the site. He stated he knew there was some concern from the homeowners about the parking. He asked if the building committee had addressed the issue. Mr. Crisp stated they discussed it and they decided that the current plan was safer than having parking in the building and not be able to see it.

Mr. James Perrott was properly sworn. He stated he was a member of Stony Hill Baptist church and a life-long member of the community. He stated the area has changed considerably. It is one of the fastest growing areas of the county. The church has been there since 1884 and is part of the community. As a part of the community, it wishes to expand to provide facilities to people moving in. Part of the plans for the use of this facility would be emergency care in case of storms or hurricanes. The facility would provide immediate shelter. They are providing recreational facilities for the youth to maybe keep them off of the street. They are trying to grow with the community.

Chairman Raxter closed the public hearing.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF THE BOARD

The Board of Adjustment shall not approve a petition for a Special Use Permit unless it first reaches each of the following conclusions based on findings of fact supported by competent, substantial, and material evidence. The Board of Adjustment must make positive findings on the following findings of fact from Section 1-1-11 (C) of the Zoning Ordinance in order to approve or deny this special use request:

(1) The proposed development will not materially endanger the public health or safety.
(2) The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses.

(3) The proposed development will not substantially injure the value of adjoining property, or is a public necessity.
(4) The proposed development will be in harmony with the area in which it is located.
(5) The proposed development will be consistent with the Wake County Land Use Plan.
Recommendation

Staff recommends that, if the Board of Adjustment reaches positive conclusions on all the required findings, that it approve the request subject to the following conditions:
Motion

Mr. Welch made a motion that in the matter of BA SU-2035-05, the Board of Adjustment find and conclude that the petition does meet the requirements of 1-1-11(C) of the Wake County Zoning Ordinance and the special use permit be granted with the recommended staff conditions. Mr. Anderson seconded the motion. All voting members voted aye. So ordered.


Item 4, BA SU-2025-05:

Petitioner: Bass, Nixon, and Kennedy, Inc.
Landowner: Leon and Cleo White
PIN: 0891.01 25 7890, 0891.01 25 2700, 0891.01 16 8194, and 0891.01 25 4573
Location: western side of Willeva Drive, south of its intersection with Durham Road
Zoned: Residential 40 Watershed (R-40W)
Land Area: 15.76 acres

Item No. 4 heard at the regular meeting of the Wake County Board of Adjustment held on Tuesday, August 9, 2005, was a Special Use Permit, Petition No. BA SU-2025-05. The petitioner is Bass, Nixon, and Kennedy, Inc. The landowner is Leon and Cleo White. The property is located on the western side of Willeva Drive, south of its intersection with Durham Road. The following members of the Board heard and decided this petition: Chairman Raxter, Mr. Anderson, Mr. Odom, Ms. Sims, and Mr. Willis.

In this case the petitioner requests special use permit approval to construct a 14,728 square foot church for Mt. Bethel Worship Center with classrooms and associated parking.

SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

Documentary Evidence: Staff report, PowerPoint slide presentation and videotaped presentation of the site; Special Use Permit Petition dated 01-25-05; Statement of Justification; Preliminary Special Use Permit Site Plans dated 01-24-05; Vicinity Map dated 07-27-05; five photographs: (1) North view of site at proposed access drive off of Willeva Drive, (2) East view at site on left side off of Willeva Drive, (3) South view toward NC 98 from access drive to site off of Willeva Drive, (4) West view at site on right off of Willeva Drive, and (5) West view from NC 98 towards its intersection with Willeva Drive. Site is to the right.

Testimony: Ms. Everette entered the staff report for BA SU-2025-05 into the record and stated that this is a request to construct a 14,728 square foot church for Mt. Bethel Worship Center with classrooms and associated parking. The petitioner is Bass, Nixon, and Kennedy, Inc. The landowner is Leon and Cleo White and is zoned R-40W. The property is located on the western side of Willeva Drive, south of its intersection with Durham Road. The site has road frontage on Creedmoor Road, Durham Road, and Willeva Drive. Access to the site will be on Willeva Drive. The site consists of 15.76 acres and contains flood hazard soils and drainage features that require Watersupply Watershed Buffers. The site complies with those buffers. The site is located in a Non-Urban Area, Watersupply Watershed, Non Critical Area, partially in a neighborhood activity center, and partially in a neighborhood residential support area as shown on the Wake County Land Use Plan. The site plan complies with that Plan. The required number of parking spaces is 63, they are showing 200 spaces. The site complies with all required buffers.

Mr. Harry Mitchell, 10405 Ligon Mill Road, Wake Forest was properly sworn. They've been working with the church for the past two or three years. There was a site plan approved by the Board of Adjustment two or three years ago on another location. That site was in the R-80 Watershed, which limited them to a 6% impervious coverage. Even though they got the site plan approved, the parking was extremely limited by the 6% restriction and that was going to be a problem. Especially because the church was growing and on certain Sundays, the parking need would exceed the parking space. After looking for a few years, the church found this property about a mile from the existing facility. The church has outgrown their existing facility. They hope it is the first phase of the building campaign and hopefully they will be coming back to the Board of Adjustment for a sanctuary addition. Access is off of Willeva Drive, which a service road off of NC 98. There is a treeline buffer along NC 98 which will provide an additional buffer.

Ms. Sims asked about the state road maintenance ending before their driveway access. Mr. Mitchell stated that there was a sign to that affect on Willeva Drive. They will still go to NCDOT for their concurrence of the access. It is a service drive and are only three or four residents along Willeva. Ms. Sims asked if Mr. Mitchell anticipated any problems because it is a service drive. Mr. Mitchell answered that they did not. He stated they have spoken to NCDOT. NCDOT would prefer them to have access on the service drive rather than trying to make a connection to NC 98 or the access ramp to NC 50. Ms. Sims asked if his clients were aware of the situation. Mr. Mitchell answered that they were.

Chairman Raxter closed the public hearing.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF THE BOARD

The Board of Adjustment shall not approve a petition for a Special Use Permit unless it first reaches each of the following conclusions based on findings of fact supported by competent, substantial, and material evidence. The Board of Adjustment must make positive findings on the following findings of fact from Section 1-1-11 (C) of the Zoning Ordinance in order to approve or deny this special use request:

(1) The proposed development will not materially endanger the public health or safety.
(2) The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses.

(3) The proposed development will not substantially injure the value of adjoining property, or is a public necessity.
(4) The proposed development will be in harmony with the area in which it is located.
(5) The proposed development will be consistent with the Wake County Land Use Plan.

Recommendation

Staff recommends that, if the Board of Adjustment reaches positive conclusions on all the required findings, that it approve the request subject to the following conditions:
Motion

Ms. Sims made a motion that in the matter of BA SU-2025-05, the Board of Adjustment find and conclude that the petition does meet the requirements of 1-1-11(C) of the Wake County Zoning Ordinance and the special use permit be granted with the recommended staff conditions. Mr. Willis seconded the motion. All voting members voted aye. So ordered.

Item 5, BA SU-2034-05:

Petitioner: Connie Hoyes
Landowner: Nottowa Nursery, Inc
PIN: 0733.04 72 2135, 0733.04 72 1870
Location: northeastern quadrant of the intersection of NC Highway 55 and Old Jenks Road
Zoned: Conditional Use Heavy Commercial (CU-HC), Conditional Use Highway District (CU-HD), and Residential-40 Watershed (R-40W)
Land Area: 17.29 acres

Item No. 5 heard at the regular meeting of the Wake County Board of Adjustment held on Tuesday, August 9, 2005, was a Special Use Permit, Petition No. BA SU-2034-05. The petitioner is Connie Hoyes. The landowner is Nottowa Nursery, Inc. The property is located on the northeastern quadrant of the intersection of NC Highway 55 and Old Jenks Road. The following members of the Board heard and decided this petition: Chairman Raxter, Mr. Anderson, Mr. Compton, Mr. Odom, and Ms. Sims.

In this case the petitioner requests special use permit approval to allow for the operation of a landscape contractor business with associated truck/equipment parking, plant storage areas and miscellaneous structures.

SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

Documentary Evidence: Staff report, PowerPoint slide presentation and videotaped presentation of the site; Special Use Permit Petition dated 05-23-05; Statement of Justification; Preliminary Special Use Permit Site Plans dated 03-08-05; Vicinity Map dated 07-19-05; twelve photographs: (1) To the northwest at proposed access drive on east side of site off of Oak Ridge Drive, (2) To the north across Oak Ridge Drive from the site, (3) To the east from site towards the intersection of Oak Ridge Drive and Holt Road, (4) To the south at proposed access drive off of Oak Ridge Drive, (5) To the north at south side of site off of Holt Road, (6) To the northeast at existing entrance to site off of Holt Road, (7) To the south across Holt Road from the site (8) To the west from existing access drive off of Holt Road, (9) To the north from existing access drive off of NC 55, (10) to the east toward site off of NC 55, (11) To the south from existing access drive to site off of NC 55, and (12) To the west across NC 55 from the site.

Testimony: Ms. Coats entered the staff report for BA SU-2034-05 into the record and stated that this is a request to allow for the operation of a landscape contractor business with associated truck/equipment parking, plant storage areas and miscellaneous structures. The petitioner is Connie Hoyes. The landowner is Nottowa Nursery, Inc. The address of the property is 1900 NC Highway 55. The property has three zoning classifications: Conditional Use Heavy Commercial (CU-HC), Conditional Use Highway District (CU-HD), and Residential-40 Watershed (R-40W). The property is located on the northeastern quadrant of the intersection of NC Highway 55 and Old Jenks Road. There are no floodsoils on the property. There is a pond located on the property. The site plan shows the existing retail nursery and garden center located in the Conditional Use Heavy Commercial and a portion of the Conditional Use Highway District property. There are no new proposed buildings to be located on the property with this use. There is an existing manager's residence that is located off of Holt Road. Access to that is off of Holt Road. There is a plant storage area, proposed truck and equipment parking area, and there is a proposed an additional access drive for this proposed use off of Oak Ridge Drive. The Board of Adjustment approved, on October 10th, 1989 the Special Use request for the existing nursery and retail garden center that is located on a portion of this property. There are two parcels that make up the entire property that has the three separate zonings on it. The property is located within the Town of Cary's Short Range Urban Services Area. It is located within a neighborhood activity center as shown on the Southwest Wake Area Land Use Plan. Impervious surface coverage on the property: Highway District is 30% without onsite retention, Residential-40 Watershed requires stormwater management in excess of 12%. There is 14.74% impervious surface coverage proposed for the site. Stormwater management devices will be required. 18 parking spaces are required for the proposed use. This is based on one space for every two employees plus one space for every truck that is to be stored on the property. There is no additional parking shown for the employees. There is just a truck area parking shown. 10 foot bufferyards are required along the right of ways of Holt Road, Oak Ridge Drive, and NC Highway 55. The remaining perimeter of the property requires a 50 foot buffer. All buffers are shown on the site plan with the exception of the required 50 foot buffer adjacent to the Residential-40 Watershed section of the property.

Ms. Coats stated that a neighborhood activity center should contain shopping services, recreation and small scale office and institutional uses needed to meet the day-to-day needs of the neighborhood. The landscaping contractor business use is considered an industrial use, which is classified as a community wide, rather than a neighborhood wide use. Therefore, the proposed use is not consistent with the Southwest Wake Area Land Use Plan. Staff is recommending denial of the Special Use request. The proposed landscaping contractor use is also not one of the listed uses that was placed as one of the conditions on the conditional use rezoning. It is not a use that would be allowed. They were issued a violation notice that they were operating without the appropriate permits. Staff went out and issued a violation notice. They have filed a rezoning application. They pulled the rezoning because it was not consistent with the Land Use Plan and they proceeded with the Special Use request.

Ms. Sims asked how long they have been operating the landscaping business. Ms. Coats answered that staff was not sure. It was not in any of the original approvals. Ms. Sims asked if it has been in any of the aerial views. Ms. Coats answered that it had not.

Mr. Warren stated this case isn't very clear. There is an issue as to whether the landscaping contracting use is actually that or if it is more of an incidental use to the existing retail garden center and nursery. If there is a close enough nexus that you consider this to be a bona fide farm purpose or an incidental bona fide farm purpose, then even though it is before this board, it would be exempt from county zoning altogether. Another issue is: can supplies that are grown on site be dropped off as part of a horticultural activity versus installation. Mr. Warren stated he felt staff was literal with the interpretation and the applicant was very generous with the interpretation.

Mr. Willis asked about the Special Use Permit and the rezoning application. Ms. Coats answered that they received a Special Use permit for the retail garden center. It is a legal use that is existing. The landscape contracting business is what has been placed there is what is before the board. Mr. Willis asked if they complied with the violation notice sent to them. Ms. Coats answered that they have removed the silo and the debris that was on the property. Whether or not they have continued to use it, she stated she didn't believe the trucks were still parked there, but she wasn't sure.

Ms. Sims asked about the bufferyards not being in compliance. Ms. Coats showed the board on the site plan where the noncompliance area was. Mr. Compton asked if they owned both pieces of property. Ms. Coats answered that they did. Ms. Sims asked if it was recombined into one lot and that is why there is two separate zonings. Ms. Coats answered that there still were two separate parcels.

Mr. Jason Barron, 434 Fayetteville Street Mall, Raleigh was properly sworn. He stated that when Ms. Hoyes came to his firm, he thought it was a big mess. He stated he enjoyed working with Ms. Hoyes. He stated he thought she had been more than willing to do what staff has asked her to do to in the extent that it was necessary to come into compliance with the various things they are asking for. She received notice of a violation of the regulations. She did everything she was asked to do. She moved all of the equipment off and came into compliance with that notice. Most of the land use cases he deals with are shopping centers and high density residential uses. That is primarily what the firm does. The opposition they get in those cases are often folks like Ms. Hoyes and the people who live by the garden center.

Mr. Barron stated that to try to clear up confusion that is in this case, put most simply, they have a bona fide farm use. A bona fide farm use is exempt from the zoning regulations. The use that is going on today, he is convinced, not because she is paying me to be convinced, but because in reviewing the case law and reviewing the statue, what she is currently doing today on the property is a bona fide farm use. What they are here to do is to ask the board to grant a Special Use permit to allow her to store equipment on the property. They recognize full well that the equipment storage aspect of this is not going to be considered a bona fide farm use. He stated he would concede that point. He stated there were there for the equipment storage issue and to have an access drive. He listed the trucks that would be parked. He stated Ms. Hoyes had been storing the equipment on the site and would like to continue to store the equipment on the site. He pointed out on the site plan where the trucks would be parked.

Mr. Barron stated the reason they were there was ask the board to allow them to store equipment and use an access drive in order to get that equipment onto the site. As the testimony of Ms. Hoyes and the neighbors will illuminate, the uses will not materially endanger the public health or safety. It will also comply with all regulations and standards applicable to the zoning district on which it sits. It won't substantially injure the value of the property. It will be in harmony in the area in which it is located. Currently, the area is rural. He stated he visited the site the day before and was pleased with what he saw. The proposed development will be consistent with the Wake County Land Use Plan. He stated it complied with the Land Use Plan because of the neighborhood activity center. What the neighborhood activity center seeks to do is provide service related uses in close proximity to residential areas. What the storage of equipment seeks to achieve is to allow Ms. Hoyes to operate an offsite landscaping contractor business. Ms. Hoyes has offsite uses that she uses that equipment for. A majority of her work is residential related. He stated he thought the board could find that the use is consistent with the Land Use Plan to the extent that it is providing a neighborhood service in close proximity to a residential area. He stated the board is not bound by the staff's interpretation of the Land Use Plan and consistency or non-consistency.

Mr. Barron stated he wanted to explain why this is a bona fide farm use. He read aloud the Wake County Zoning Ordinance's farm use definition. He stated this is a bona fide farm use. Ms. Hoyes is cultivating plants. Ornamental and flowering plants. Sometimes in pots, sometimes standing alone. They are being cultivated for off-site use.

Ms. Sims asked if Ms. Hoyes was selling the plants. Mr. Barron answered that Ms. Hoyes does not have a retail market for those, she uses them incidental to her work off-site. Ms. Sims asked when Ms. Hoyes is conducting landscaping off site, she does charge for the plants. Mr. Barron answered that she did.

Mr. Warren stated that part of the Ordinance is extremely old and pre-dates his involvement with the Zoning Ordinance. It is more restrictive than the state exemption. He stated he would advise this board to ignore that provision as to retail sale. The exemption has never been specific whether it is wholesale, commercial, or retail. That distinction is not there in the statutory exemption. That language is very misleading at times. The County has some issue with the retail sale, that is contrary to the state exemption. He stated he would not take that position in court because it is a loser. Mr. Raxter asked if a copy of the state exemption was available. No one had one.

Mr. Barron stated the case he was going to distribute contains the definition. The Baucom's nursery case was a case not unlike this. The use of the property constituted a nursery according to their Zoning Ordinance. The plaintiff in that case were operating a nursery on their parcel. They were growing plants in pots on top of plastic ground cover. They were utilizing a lake, cold frame, hanging baskets, potting sheds, planting beds and other methods of cultivation advocated by the North Carolina Department of Agriculture. The court really hinged their finding on that what they were doing consisted of growing plants in pots on the site. That is exactly what Ms. Hoyes is doing. She does not have a greenhouse and has no intention of having a greenhouse and the people who live beside her do not want her to have a greenhouse. A lot of what Baucom's nursery was doing is what Ms. Hoyes is currently doing on her property. The North Carolina Court of Appeals declared that a use of that nature constitutes a bona fide farm use under the North Carolina statues. He stated he brought all of this up because he wanted to clarify all of this. To the extent that she is engaging in these activities, they are not there for the board's review. To the extent that there would be buffers that would otherwise be applicable to her use of the property. Her use as it relates solely to the bona fide farm purposes with her raising plants are exempt from the Zoning regulations. What they are there to do is to ask the board to allow Ms. Hoyes to allow her to store equipment on the property so that she can engage in an off-site use. He stated he would qualify the use as a nursery. He read the definition from Webster's of a nursery. Ms. Hoyes is currently engaged with the growing of plants on her property and is transporting them off-site. The current use is a bona fide farm use. They are asking the board to grant a Special Use permit to store equipment on the property.

Ms. Sims asked if he was orally modifying the application which was submitted for the Special Use permit by saying that you are not asking for a Special Use permit to expand the nursery and the landscaping operation. She asked if they were now only asking for a Special Use permit to store equipment. Mr. Barron answered that the short answer was that he was. The long answer is that Ms. Hoyes filed the application before he was involved in the case. She didn't know there was a state statue out there regulating bona fide farm uses and saying that she was exempt. Had she come to him beforehand and they submitted the application, he would have told her that what she was doing was untouchable. State statue says that it is untouchable from zoning regulations. Ms. Sims stated it was her impression that the staff's recommendations are based upon the Special Use Permit application which was filed and not based upon Mr. Barron's modification today. Mr. Warren stated he believed that to be correct. Ms. Sims stated that they do not have staff's recommendations based on this oral modification. Mr. Warren stated that was true. There were conversations between staff and himself and conversations between Mr. Barron and himself. There was never a joint decision as to how this should go forward. Basically, you are getting to a point where you're going to be asked to examine the actual use of the property and determine whether or not it is incidental as a bona fide farm purpose or if it, with your own interpretation of the Land Use Plan, it is not consistent. Staff's position is important, but it does not bind the board's hands. The board needs to make its own determination.

Mr. Raxter asked if this was a bona fide agricultural use, the fact that it is in a neighborhood activity center does not really matter. Mr. Warren answered that he was correct. Mr. Warren stated his take on it was that according to the most recent case law, another case talks about driveways being constructed, fans in greenhouses and gives examples of things considered to be incidental to farm purposes, which are therefore exempt. Without the driveways, the trucks, the greenhouse fans, you need those to raise your crops. The public policy of North Carolina is to promote agricultural growth and so forth. He stated he didn't have a problem with things being grown on site, then being transported and being dropped off. He stated he wasn't clear if you have an operation that also installs those materials if that is also exempt. He stated he never fully resolved that himself.

Ms. Sims stated that one of her problem was the language in 1-1-1 of the Zoning Ordinance and that it should be ignored. It is a part of their plan. There is nothing that says the board should ignore that section of their plan. Until the Board of Commissioners change it, this board needs to be bound by it. Mr. Raxter stated he would not vote for something if it was in violation of state law, even if the County Commissioners haven't taken the time to update the definition. Mr. Warren stated the UDO was a work in progress and this issue has come up. Ms. Sims stated that she heard Mr. Warren state that he had a problem with installing materials that are grown in a bona fide farm use environment. Mr. Warren answered that she was correct. He stated he couldn't say for sure, based on the case law he has seen whether or not that would be a clear bona fide farm exemption or incidental to a bona fide farm exemption. He stated he thought the dropping off of materials is, but the actual putting it in the ground, he didn't know. He stated that in North Carolina, he didn't believe that particular issue has been reached. Ms. Sims stated the case Mr. Barron cited was from 1983. She asked what the date on the case Mr. Warren is referring to. Mr. Warren stated it was a 1997 case that Judge McGee. He stated it doesn't talk about installation.

Mr. Barron stated he agreed with Mr. Warren about whether installation could be considered a bona fide farm use. He stated his position was that the installation offsite has nothing to do with the use of the property itself. The property that they are talking about is Ms. Hoyes site. What they are doing on the site is cultivating products on it. He stated he felt the installation of products on an off site location is really not a distinction with any significant merit. It is an offsite use that from a Land Use standpoint, it does not affect her use on the property. Ms. Hoyes will continue to grow those things on her parcel, whether she has someone else install them, whether the homeowner installs them himself or whether Ms. Hoyes does it.

Mr. Welch asked if the parcel was the headquarters for the landscaping business. He referred to the case that was next on the agenda. Mr. Barron stated that as it relates to Ms. Hoyes running the business onsite. Yes, she is running her landscaping contracting business on the site. She is also engaging in her bona fide farm use on the site. She has an office use related to that bona fide farm use. He think trying to split those hairs is a virtual impossibility. It is much like he, as an attorney, operating out of his house with a home computer and accessing our system at home and looking at the documents and sending e-mails. If the board can do it, they are more intelligent than himself.

Mr. Raxter asked if they had the right petition in front of them. Mr. Compton stated he thought that trucks would be an incidental item for a farm and you wouldn't need a Special Use to store work farm trucks. Mr. Barron stated the trucks Ms. Hoyes is asking to store on the property are used primarily offsite. They are used onsite, but are primarily used offsite. Mr. Raxter asked if staff has told them that storing the trucks onsite is a violation of the Ordinance. Mr. Barron answered yes.

Mr. Willis asked if the position of staff was that this was a bona fide farm use and therefore untouchable. Mr. Warren stated that in talking with Mr. Larry Morgan, Ms. Brenda Coats, and Mr. Reginald Goodson, that trucks stored on site which were used solely for the production of crops on the property are indeed, untouchable. The problem was the trucks going offsite maybe purely for installation or maybe a hybrid of onsite and offsite uses. The things that are onsite and clearly identified as purposes for the retail garden center and wholesale nursery are exempt. It is a question of is the storage of trucks exclusively for offsite installation allowed. Staff's position is no, that it is not consistent with the Land Use Plan. It is broader than a neighborhood activity center and it isn't a use that is allowed under their voluntary conditions with conditional use zoning. It is so closely intertwined and a gray legal area that the applicant is hoping the board will grant the Special Use to insulate her from further compliance.

Mr. Odom asked if they have a bona fide farm use then a nursery, whether they deliver offsite and have trucks that deliver or plant them themselves, what the difference would be. Mr. Warren stated he didn't want to put the board in a bind, but this is where staff and the petitioner need guidance from this board. If the board does not find a significant distinction then it is left alone. There can be alternative motions in this case. There are several possibilities. One of which is that the uses are so intertwined that it is substantially a bona fide farm exemption and if that is approved then the petition really is moot. Another would be to go forward and finding that it is not incidental to bona fide farm use and going with one of the standard motions and saying that it either is or is not allowed a Special Use permit based on the required findings. The board has some latitude.

Ms. Sims stated she felt what is being argued is not what they filed the application for. Therefore, if they want to proceed on the filed application, she would vote for a denial. If they want to proceed on their present argument, then they need to go back and modify their application and meet with staff after they modified their application. Perhaps then they will resolve it. Mr. Warren stated that it may be the thing to do. He stated he thought a decision needed to be reached someway/somehow. Basically you have someone in limbo, staff is in limbo and they need to get this thing resolved.

Mr. Compton asked if they were trying to determine which trucks are allowed to stay on the property based on their uses. Mr. Barron stated it was challenging to make a distinction. He stated there was not a case out there that says if you install it is not a farm purpose.
Ms. Coats stated that the property was classified as a corporate business and not a farm. Ms. Sims asked how long that had been in effect. Ms. Coats answered that was the most recent tax information. Mr. Warren stated that it was probably irrelevant how they are taxed.

Mr. Barron stated he thought the petition as it stands can proceed. All of their discussion about a bona fide farm use is really off the plate to the extent that the Special Use permit they are asking for, to the extent if it is approved, it will not affect the current bona fide farm use. It will affect that portion of the property where they want to store equipment. Mr. Willis stated he disagreed. He stated he felt Ms. Sims is right on target with this. The way that it is currently presented, he would be inclined to agree with her position.

Mr. Anderson stated that it seemed to him that it was a nursery, a garden center and fits all needs. It has expanded and now has a need for trucks. There is going to be truck movement. The request is to store equipment. If they are installing, there will also be backhoes and other certain equipment needed. They have the issue of parking of the equipment and excess materials. The whole thing is about astatic If the trucks could be screened so they are not seen, he thought that is what it is coming to.

Mr. Raxter stated that what they have in front of them is a request to expand an existing nursery and landscape operation. He asked Mr. Barron if that was the best case to be putting forward to the board. Mr. Barron answered that it was not the ideal case. Mr. Raxter asked if Mr. Barron wanted to discuss with his client the idea of postponing the case for 30 days to bring the ideal case to the board.

Ms. Coats stated that staff based their interpretation on the minutes from the previous case. The minutes were included in the packet sent to the board members.

Mr. Welch asked if the applicant had appealed the zoning violation. He stated it seemed to him that the proper way to raise the exemption would be to appeal that violation and say that it isn't a violation because it is exempt. Mr. Warren stated they had not had any problem with them getting into compliance. Neither the applicant, staff, or myself are together on this.

Mr. Willis asked if incidental use of the trucks meant that they would only use them to move material around the site and if they moved material off the site with the trucks, they are no longer incidental. Mr. Warren stated that all he could infer from the court case is if there are driveways that are more commercial in character and the trucks are large trucks that are going off site and could be considered incidental. To him, the driveways mean that trucks can go off site to facilitate sales. He stated he was comfortable with that. The issue is once you get to the site, you drop it off and the same people install it, it may be incidental, it may not be.

Ms. Connie Hoyes, 1936 Holt Road, Cary, NC was properly sworn. She stated she owned shares in the Nottowa Nursery company and operate all of the nursery operations and own the garden center structures that are there. She became notified in December of last year that there was a violation. She stated she had been operating these businesses at that location since the early part of 1990. The construction occurred in 1989. She did seek a piece of property in the late 1980s that would be zoned properly and supportive of a nursery operation. It needed a water source to allow her to grow plants and sell plants and to landscape. There was a petition that was approved in 1990 by Wake County to have a garden center operation there. When it came back, she stated she asked the question about the landscaping been omitted from it. She was assured by the staff that landscaping was a part of the garden center operation and she would be permitted to do that. She have consistently done that without any breaks since 1990. She stated she was very surprised last year to be notified that she was in violation because she was operating a landscape business on residential property. She stated there had been a huge amount of confusion on her part about what the violation consists of for the past seven, or eight, or nine months because there is a small sliver of residential property that is depicted her accurately and the rest of the property is zoned either Highway District or Heavy Commercial property. She stated she has always felt that she was allowed to do any and all of the current things she is doing there and have never had a break in doing them. As she began to try to understand what the problem was. First, she was told she was on residential property. Then she was told that she could not operate a landscape business there. She came back to the staff to ask for verification. She was told she had some structures that were not permitted on the property and she should go and get building permits for those structures. She proceeded to do that. When she came back with her building permits filled out to leave with the staff, she was told that they didn't want those that what she had was an illegal use and she needed to get a Special Use permit. She began to prepare a Special Use permit request and staff has given her direction about what she needed to apply for. In consulting with Mr. Morgan and Ms. Coats in trying to get their help, what she had been told is she needs a Special Use permit and that she needed to rezone the property. She began to prepare petitions for both of those processes. As we've gone through it, she has relied upon the staff to advise her, thinking that as a property owner and nursery operator that it should not be terribly complicated. She stated she had a college degree in horticulture; she is relatively intelligent; she should be able to prepare a petition to operate a business. With their help, she started to do that. Any petition that she had applied for has been prepared with the assistance and coaching from these people. If this petition is not accurate in its representation, it is only because she got to a point sometime in June of this year that she got so frustrated with what she was trying to accomplish, to operate legally, that is all she wants to do. She wants to continue to grow her plants and to be able to landscape with those and to be able to have a garden center on this site that sells to the public. She stated she wanted to do whatever it took to comply. She has asked her neighbors for their input. There are six of those neighbors here today. If those neighbors want screening, she is more than happy to do that. She stated if they have a problem with any of her equipment, like the beeper when trucks are backing up, she would be happy to disable it while on the property. She stated if they want to tell her what the issue are, she is happy to be a good neighbor. That is all she wants to do.

Mr. Raxter asked if she had kept records of the staff person she originally dealt with. Ms. Hoyes stated all of the work was originally done by Ms. Coats.

Ms. Sims asked if Ms. Hoyes was aware of what she was agreeing to when she went in front of the Board of Commissioners. Ms. Hoyes stated she wouldn't say she was aware that she was restricting herself in any way. She thought that all she was agreeing to was that she would deal with any impervious surface area, water management and that kind of thing on the property. She has not developed or expanded this property beyond the original impervious surface area. Ms. Sims stated she wasn't talking about impervious surface. From the minutes that were included in the packet from case ZP 674 that this says in making the petition, you freely agree to the following conditions and those conditions list seven permitted uses and then another seven restrictions. Ms. Hoyes stated the permitted uses that she agreed to at that time, she has been operating a garden center/nursery/landscaping business since 1990, to agree to do anything differently at that point, she didn't realize that she was. She stated it has been in continuous operation.

Mr. Welch asked how many trucks she used in 1990. Ms. Hoyes answered that she had four trucks. Mr. Welch asked how large an area did she service in 1990. Ms. Hoyes answered primarily Wake and Durham counties, but they do go further than that now occasionally. Mr. Welch asked how many customers she had in Durham County. Ms. Hoyes answered that she probably had hundreds of customers in Durham County. Mr. Welch asked how many customers she currently had for her landscaping contractor business. Ms. Hoyes answered she had probably about 1000 customers. Mr. Welch stated what he was looking at was whether this was just confined to just within a neighborhood activity center. He stated that if he understood correctly, half, if not 75% of her business is outside of a five or ten mile radius. Ms. Hoyes stated she did not know that to be a fact. She would have to go back and look. Mr. Barron stated he wasn't sure if that was problematic. If a bank was serving the people next door and they chose not to go there, that is their choice. If someone was driving through from Tennessee and they want to stop and use the ATM, he didn't really think who was using it had a whole lot of relevance as it relates to the people in that area having the option. Mr. Welch stated that they did need to consider if they were serving customers in that local area or if went larger than that. Mr. Barron stated that it was a multi-county operation. If someone wants to pay Ms. Hoyes to landscape, she would do it as long as it makes economic sense. He stated he felt he neighborhood activity center was an opportunity for local residents to have an option to limit drive time.

Ms. Sims stated that at the time Ms. Hoyes appeared before the Board of Commissioners in 1993, the minutes indicate there were 16 acres involved. In the current petition, there are 17.29 acres. She asked if Ms. Hoyes had acquired property since 1993. Ms. Hoyes answered that she did not and she did not understand why the staff used the number 16 on that application.

Mr. Raxter asked if the case was brought before the board so they could make a determination. Mr. Warren answered that it was his instinct to do so. Mr. Raxter asked what the best way was to get that issue in front of them and to get that out of the way. Mr. Raxter stated that maybe the best thing to do would be to have them appeal the denial. Mr. Welch stated he didn't think that was the best approach. Mr. Warren stated he felt it would be best to have Mr. Barron, the Planning Director, and himself together to discuss the case, to postpone it for 30 days. Mr. Raxter asked Mr. Barron if it was acceptable to his client if it was postponed for 30 days. Mr. Barron stated his client was amenable to a 30 days postponement, but she would like to have the neighbors speak, since they took time out of their day to be here. Ms. Sims stated that it seemed to her that it would be in the client's best interest to withdraw the application, met with staff and had staff determine whether this is a bona fide use and the board never sees it again.

Ms. Melanie Wilson, PO Box 550, Raleigh was properly sworn. She stated she was the Planning Director. She stated she felt that a lot of it could be dealt with if staff has a chance to meet with the client to talk about the bona fide farm issue. Staff was not approached with this before the application was submitted. What the board has is an application recommended by staff based on the applicant. She stated they could look at all avenues including rezoning. There are a number of issues that came up in the current discussion that she was not privy to and she would like to have the opportunity to talk with the client and see if they could work something out. She stated that because of the split zoning, it is not your typical case. She stated she would welcome the opportunity to talk with the applicant about some additional options. There was some discussion about the size of the R-40 Watershed piece. Ms. Wilson stated staff interprets the ordinance to make sure everyone is treated the same. Right now the definition in the ordinance is as it is because it is something that has been approved by the Board of Commissioners. She stated that as a part of us updating the Ordinance with the UDO, they will be looking at changing and updating the definition, if necessary.

Ms. Georgia Martin, 2012 Prosaic Way, was properly sworn. She stated it was right on the intersection of where the trucks want to turn in. She stated she was the first person in Charleston Village to move in and be able to see all of what is going on. She stated her house overlooks the area and she had extra windows put in so she could see the area. She stated there was a lovely pond. She moved in 1997. It looked like a garden center and as time as passed, it has grown a little. She stated that actually, it has grown a lot. She stated there was more trucks and plants. She stated the trucks and such went away pretty fast as soon as she realized she was in violation. She stated it hasn't always been pretty, but it was a vacant lot before. She stated that when she moved in, she asked if the garden center would be there for a while, because she would like to see it stay. She pretty much approved of what was going on, but if she had any problems, she would talk with Ms. Hoyes about them. She is very much in favor of the current use and hopes it continues. She stated she liked having the garden center there.

Ms. Ruby Care, 1921 Holt Road, was properly sworn. She stated she lived directly across the road from the business. She had lived there since the early 1960s. At that time, it was a tobacco farm. When they brought the garden center there, it was an asset to the community. They hired local people to work there and the business has expanded. If the business didn't expand, it would not be in business anymore. The noise had never bothered them. Her husband was sick for ten years with heart trouble and the noise never bothered him. It has been an asset to the community and she hopes it still exists.

Ms. Barbara Dillard, Oak Ridge Drive, was properly sworn. She stated she lived on the road where the trucks would be coming in. She stated she and her mother came here because they have been there for 35 years. They were there to see how man who owned the property previously kept it up. When the grandchildren took it over, they let the place go to pot. When Ms. Hoyes came along, she planted the most gorgeous flowers. Ms. Dillard stated she would go out there with her camera because now they had a piece of property that had flowers in every section. When you look at the different sections of the property, Ms. Hoyes keeps them up. Lots of people like to visit the property because it looks so good. She stated that Ms. Hoyes was a good neighbor, although not someone Ms. Dillard hung out with on a regular basis. She stated that any concerns the neighbors have had with Ms. Hoyes have been resolved and resolved with class. It will be taken care of to a high standard. The neighborhood looks to Ms. Hoyes for lots of guidance. She is very sound. She is calm, sweet and neighborly. She has always been these things. You often don't know who people are unless there is a problem. But Ms. Hoyes has always been neighborly. She stated that the people that were speaking today were the adjoining neighbors and if it was going to affect anyone, it would affect them. They have loved how Ms. Hoyes has kept the place up. She stated the neighbors did not even realize the trucks could be an issue. She stated she would be disappointed if Ms. Hoyes was not owning the garden center. She stated it didn't seem like it was bothering anyone. She stated the business has always been very family oriented. Ms. Hoyes has gatherings once a year to stay involved with the community. She is not the kind of person who gets involved in paperwork or tries to go against something. She has always tried to do things in a classy way. If you could see how well groomed she keeps the property. She stated it was an asset to the community.

Ms. Marge Bozeman, 2011 Prosaic Way, was properly sworn. She stated it was right across the street from where the trucks were parked. She stated she had no problem with the trucks. She is a farmer's wife and she does enjoy seeing trucks and loves seeing the country. To her, it was a treasure. She thought it kept her husband alive for a year longer because he sat there and watched the trucks go in and out. He really enjoyed the scenery that he saw. He had emphysema and was bored and housebound. He really enjoyed it. She stated she was against turning this property into anything else than a nursery. She looks out across the pond and in the wintertime when the trees are bare, she can see the lights from the landscaping business and it is gorgeous She stated she could sit there for hours just watching the lights across the water. If there gets to be buildings and stuff there, she would lose her view. She stated she was very much in favor of keeping the landscaping. She stated she met Ms. Hoyes the night before and thought Ms. Hoyes was a wonderful person. She stated she wished she would have met earlier. They have no complaints about the trucks or the business at all.

Mr. Barron requested that the petition be tabled until the next meeting.

Ms. Eileen Hannon, 2021 Catskill Court, was properly sworn. She stated she lived in the neighborhood across the street from the nursery. She stated she was not a lawyer and a lot of what has gone on has been confusing to her. She stated she understood where Ms. Hoyes was coming from. She stated she had a social work background and understood there was going to be a diversity of opinion. In no way is she trying to discredit someone who has the gumption to operate their own personal business in the community. She stated she did have a problem with the way the R-40 land has been used. There is three different zonings on the property. Her property overlooks the R-40W track of land. She stated she moved into her house in 2004. When she first moved in, she went over to the garden center and asked about the property off of Holt Road. She was told that they did not own the garden center, they just rent it from the property from around the corner. Ms. Hannon stated she wasn't sure what was meant by that. Since she moved in, there were very large trucks going in and out of the property. They were very large trucks with more than four wheels. Large, commercial-sized dumpsters have also been left on the property. She stated she was the one that brought this issue to the zoning department. She said that in the research she did on her own with the Wake County website showed her that they were in violation of the watershed district. She approached the zoning department at the end of October of 2004. The certified letter wasn't received by Ms. Hoyes until December of 2004. In that letter, she was given 30 days to be in compliance. Ms. Hannon read part of the letter out loud about what needed to be done to be in compliance. The next letter Ms. Hoyes received was in May of 2005. Again, Ms. Hoyes was advised of what she needed to do to come into compliance. On June 9th, Ms. Hoyes received a letter saying that she received a letter in May and asked her to remove the trucks, silo, and debris from the property or she would be fined. She was fined a civil penalty of $13,200, which was $100 per day for 132 days.

Ms. Hannon stated she understood Ms. Hoyes to say she was a responsible business owner, but she had known about the violation since December of 2004. This letter is from June of 2005 and Ms. Hoyes was owing over $13,000. Ms. Hannon stated her concern is that concerns were raised and they were not met in a timely fashion. She stated she has been woken up at one in the morning or six thirty in the morning by the trucks going in and out Oak Ridge Road. After Ms. Hoyes received the letter in May, there was a boat stored on the property. Ms. Hannon stated she saw one of Ms. Hoyes employees dump his personal barbecue onto the pile of debris that already existed on the gravel silo that was not in compliance. She stated she didn't understand. If you know you're not in compliance of certain zoning laws, why would you continue to be out of compliance by storing personal property, such as a boat, and adding to the debris by dumping a barbecue. Ms. Hannon stated she had pictures of it. She stated what was different about where she was located from the other residents were located is that her property is directly across the street from the R-40W lot. The other folks are further down the street to the right of the property. Some folks actually do see the trees and flowers that are stored, which, she does agree, are beautiful. The property she sees is the property that is between the existing landscaping company and Oak Ridge Road. If this petition is asking for access to Oak Ridge Road, those trucks are going to have to go through the R-40W district. She asked if that land would be rezoned.

Ms. Hannon stated she was not out to get Ms. Hoyes. She appreciates local businesses and she supports the garden center. She had purchased things there. She stated she had a strong concern about trucks going in and out of there at all days and times. She has passed another property where the silo and trucks are being stored. If there is another place to store them, why not continue to store them there. She stated she wanted to know what would happen next.

Mr. John Hannon, 402 Knotts Valley Landing, Cary, was properly sworn. He stated that Ms. Hannon was his daughter. They live just a few miles apart. When she goes away, he takes care of her dog. He stated he was over at her house at all hours to do that. He has seen these huge vehicles, one is larger than any cement mixer anyone has ever seen. There is also a silo. God only knows what is in the silo. The attorney in his opening remarks said it was a mess. That is exactly what it was. Debris of all sorts, like broken concrete. The noise happens soon after dawn hours. Backhoes and pickup trucks and other vehicles backing up. Even at midnight, they are operating with their headlights on. Deplorable. This is not a piece of land where you see pretty azaleas growing or petunias. That is down toward the highway. The property directly across Ms. Hannon's backyard is a mess. Six months ago, it only could be described as a dump. You've heard Ms. Hannon say what the county tried to do to get her to comply. In essence, she was thumbing her nose. Ms. Hoyes didn't comply. She has not paid the fine. This is someone never granted an inch and took a mile. He asked if you grant the inch, how much is she going to take. This is not a suitable use for this property. He stated his daughter should enjoy the right to peace and quiet. He stated he appreciated the individuals on the board that have tried to clarify the waffling presented by this attorney and come to some kind of semblance of sense. If the attorney and petitioner are going to have the benefit of Mr. Warren, will Ms. Hannon also have the benefit of his guidance and the guidance of the staff.

Mr. Welch asked how far Mr. Hannon's property was located from the site. Mr. Hannon answered that it was probably three miles away. Mr. Welch asked Mr. Hannon to describe the huge truck he was talking about. Mr. Hannon answered that it wasn't a tractor-trailer, it was kind of like a rectangular cement mixer. It isn't the cone type of mixer, but it is bigger than any cement mixer. He stated that one evening, about seven at night, the staff was power washing this vehicle as well as others right up to the edge of the pond. What was on the truck and other equipment, he didn't know. The person was giving the truck a detail job. Anything coming off of that truck was going into the pond. Somewhere down the line, it was going to end up in someone's drinking water. Mr. Welch asked how many tractors were out there. Mr. Hannon answered probably one of each. He stated that if you could name it, it was there. Piles of concrete, lots of debris. They would come anytime of the day or night and dump stuff. They would also operate with headlights on. He stated he was only an occasional visitor. Ms. Sims asked if the pile of debris was still there. Mr. Hannon stated he didn't think so. He stated the only thing he noticed was one of those sheds you put in your backyard. Recently within the past week, there have been three Leland Cypress planted in a kind of a screen. But you can't screen that kind of noise. With another six cypress added, you might not see it, but you are going to hear it. Ms. Sims stated she was confused about was the trucks using the R-40W land as ingress and egress. The representation that the board has had was that there is a gravel drive that the trucks will be using, which is not located on the R-40W. Ms. Hannon pointed out the R-40W piece of property on the map. Ms. Sims stated the representation is that access will be on the gravel drive further south.

Mr. Compton stated they are talking about a one acre parcel of R-40W. The subdivision Ms. Hannon lives in is probably zoned R-8, which is right across the street. This is one of the few remaining R-40W pieces in this region. All the subdivision on Holt Road are zoned for density. There is an island of R-40W property that the board is discussing as if it is contamination the watershed and that is not the issue.
Ms. Sims stated she just wanted to clarify where the truck traffic was coming in. Ms. Hannon stated the drive by her house has been chained off. She stated her main concern is not the contamination of the water. Her concern is that the owner has been notified several times that she is out of compliance and there has not been an immediate response. If it does get rezoned to be appropriate for the landscaping business, which Ms. Hoyes would like to expand or to keep, Ms. Hannon's concern is that Ms. Hoyes may not always be in compliance. If Ms. Hoyes is not, the timeliness of being in compliance could be a concern.

Chairman Raxter closed the public hearing.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF THE BOARD

The Board of Adjustment shall not approve a petition for a Special Use Permit unless it first reaches each of the following conclusions based on findings of fact supported by competent, substantial, and material evidence. The Board of Adjustment must make positive findings on the following findings of fact from Section 1-1-11 (C) of the Zoning Ordinance in order to approve or deny this special use request:

(1) The proposed development will not materially endanger the public health or safety.
(2) The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses.

(3) The proposed development will not substantially injure the value of adjoining property, or is a public necessity.
(4) The proposed development will be in harmony with the area in which it is located.
(5) The proposed development will be consistent with the Wake County Land Use Plan.

Recommendation

Staff recommends that, if the Board of Adjustment reaches positive conclusions on all the required findings, that it approve the request subject to the following conditions:
Motion

Mr. Raxter made a motion that in the matter of BA SU-2031-05, the Board of Adjustment table the matter so staff and the petitioner can have a conference. Mr. Anderson seconded the motion. All voting members voted aye. So ordered.

Item 6, BA SU-R-2024-05:

Petitioner: Bradford Williams
Landowner: Huey and Hannah Allen
PIN: 1776.04 60 2636 and 1776.04 50 7585
Location: western side of Edgemont Road, south of its intersection with Sadie Drive
Zoned: Residential 40 with a Water Supply II Overlay and a Resource Conservation Overlay District
Land Area: 1.89 acres

Item No. 6 heard at the regular meeting of the Wake County Board of Adjustment held on Tuesday, August 9, 2005, was a Reconsideration of a Special Use Permit, Petition No. BA SU-2024-05. The petitioner is Bradford Williams. The landowner is Huey and Hannah Allen. The property is located on the western side of Edgemont Road, south of its intersection with Sadie Drive. The following members of the Board heard and decided this petition: Chairman Raxter, Mr. Anderson, Mr. Compton, Mr. Odom, and Ms. Sims.

In this case the petitioner requests special use permit approval to allow the existing electronic security sales and service business with associated parking to remain within an existing structure.

SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

Documentary Evidence: Staff report, PowerPoint slide presentation and videotaped presentation of the site; Special Use Permit Petition dated 12-23-04; Statement of Justification; Preliminary Special Use Permit Site Plans; Vicinity Map dated 03-29-05; eleven photographs: (1) North view from access drive to site off of Edgemont Road, (2) East view from site across Edgemont Road, (3) West view across Edgemont Road towards access drive to site, (4) West view from gravel drive on site, (5) South view from access drive to site off of Edgemont Road, (6) West view across Edgemont Road towards access drive to site, (7) North view from proposed access drive off of Edgemont Road, (8) East view from site across Edgemont Road, (9) Southwesternly view from Edgemont Road towards proposed access drive, (10) East view towards site from gravel road off of James Slaughter Road, and (11) South view at gravel to site off of James Slaughter Road.

Testimony: Ms. Coats entered the staff report for BA SU-2024-05 into the record and stated that this is a request to allow the existing electronic security sales and service business with associated parking to remain within an existing structure. The petitioner is Bradford Williams. The landowner is Huey B. and Hanna D. Allen. The property is located on the western side of Edgemont Road between Sadie Drive and Hals Farm Road. The property is zoned Residential-40 Water Supply II Overlay and consists of 1.51 acres. The utilities for the business will be an individual wastewater system that will need to be approved through Environmental Services. They may or may not be able to use the same well as the residence. That would come through Environmental Services. The existing structure, according to the application, was retrofitted and used as electronic security sales and service business without the appropriate building permits or land use authorization. Staff was not able to locate any permits. The structure does not appear on any of the earlier aerial photographs, which is what staff used in the research efforts. The Land Development Administrator determined that the use is not a legal nonconforming use, does not conform with the zoning regulations, does not have legal nonconforming status, and is a violation of the Wake County Zoning Ordinance. The petitioner proposed to recombine part of the existing property. The building is currently on 1 1/2 acres with the existing residence. For the special use site plan, the petitioner has recombined a portion of the larger property to create a separate lot for this building that houses the business. The residence will be on a separate lot. There are currently seven employees. Existing hours of operation are 7:30 AM to 5:00 PM, Monday through Thursday; 7:30 AM to 12:00 PM on Friday. The site is located within Wendell's Long Range Urban Services Area. The area is designated for residential uses.

Staff is recommending denial of the request based on the fact that the use is not consistent with the Land Use Plan. It is not consistent with the purpose and residential designation as shown on the Southeast Wake Land Use Plan. The applicant has indicated that he believed that this type of use is an indoor neighborhood retail service and trade establishment and is permitted within any residential district. Staff believes it is most appropriate within the General Business zoning district. The Wake County Land Use Plan allows for small scale nonresidential uses such as convenience stores, tailor shops and flower shops in a neighborhood activity center. This property is not located within an activity center and the nearest activity center is a mile and a half away and is a community activity center. It is staff's opinion that this type of use does not serve just a small scale geographical area, such as a neighborhood. A security sales and service business would serve a larger area and would be more appropriate within a community- or regional-level activity center.

Mr. Tim Clark stated he was from the Wake County planning department. He pointed out where the property was located. He then pointed out the activity centers nearby. Mr. Clark stated residential support areas do allow for nonresidential uses. Most of those uses would come before the Board of Adjustment for a Special Use permit. He read from the Land Use plan on what is allowed. The use that is before the board is an electronic security sales service business. Staff does not consider that to be one of the lists of land uses that he just read aloud.

Mr. Bradford Williams, PO Box 2060, Raleigh was properly sworn.

Mr. Raxter asked Mr. Warren if a reconsideration means they start from scratch. Mr. Warren stated that it was. He stated that it was basically a de Novo hearing.

Mr. Williams stated they do believe that this is an allowed use based on the zoning ordinance. This is a personal services establishment that is allowed in residential zoning district as a Special Use as long as the standards that are set forth in the zoning ordinance are there. He stated he would be summarizing some of the affidavit from David Hawkins, the site designer that was before the board in April. They have met all the standards for a personal services establishment in a residential zoning district. He stated he would like to have the people who had come in support of the petition be able to speak to the board. He stated all of them are in support of the request for the Special Use permit.

Mr. Mike Chalk, 113 Robertson Street, Knightdale, NC was properly sworn. He stated he served on the Knightdale Town Council and as Mayor Pro Tempore. He stated he knew of this use and had heard no complaints about it. He spoke of the growth in eastern Wake County and the small business nature of this use. He stated he had heard no complaints about the Allens and their operation. He stated he felt that Knightdale benefits from such businesses. He stated the look of the business is not inconsistent with the surrounding area. He stated he felt that allowing this use would conform with the spirit and intent of the government regulations.

Mr. David Smith, 6604 Sadie Drive, was properly sworn. He stated he was a resident nearby and could see nothing detrimental about having Mr. Allen's business where it was.

Mr. Larry Alston, Reese Lane, was properly sworn. He stated he farmed the adjacent land and supported Mr. Allen's request.

Mr. Peter Dunlow, 6600 Sadie Drive, was properly sworn. He stated his land adjoined the Allens' land and had no problems. He stated he was an asset to the community.

Mr. Cory Cook, was properly sworn. He stated he was one of the advocates of zoning when the county first came to zone the area. He stated he felt it would help the people.

Mr. Huey Allen, 2501 Edgemont Road, was properly sworn. He stated all he wanted to do was to keep his business going. He gave a little bit of background about how the business came into being.

Mr. Don D'Ambrosi, 2601 Weston Parkway, Cary, NC was properly sworn. He stated he was with the Land Planning Firm that has worked on the Allen case. He stated he was very familiar with Boards of Adjustment and their procedures because of his work and his former role on the City of Raleigh Board of Adjustment. He stated he reviewed the plans of the Allen's property and believed they were in compliance with the Land Use Plan. He stated he felt that this business was allowing the Allens to supplement their farm income and allowed the family members to continue a rural lifestyle. He stated this business is a small-scale business that is no different than a family-owned farm. He stated he felt the Allens had tried to make their business blend in as much as possible to the surrounding area with the conversion of the tobacco curing barn. He stated he felt the Board of Adjustment has the authority and jurisdiction to grant the request of the Allens.

Mr. Clyde Holt, PO Box 2060, Raleigh was properly sworn. He gave his background and years of experience in the land use area. He stated he felt his experience could give some insight into some of the issues the board was struggling with. The Special Use provisions in the residential district specifically allow neighborhood business uses in this particular zoning classification. He stated he would not have attempted to define the Allen's business as a personal service establishment. He felt it is much closer to the provisions which allow neighborhood indoor retail and service trade establishments including banks, drugstores, cafes, bookstores, antique shops, dry goods, hardware and so on. This is not an all-inclusive list, it is not intended by the County Commissioners, when they adopted this, to be all inclusive. The legal effect of these lists of establishments is not to limit the board's discretion when you are meeting with the neighbors and staff to decide whether this is an appropriate use. The activity that the board should go through when determining whether Allen Security should be allowed because it is substantially similar to one of these uses is to look at its intensity and its impact upon the general public and also its impact on the surrounding properties. Look at vehicle trip generation. Look at number of employees. Look at required parking. Look at noise, lighting, hours of operation, impact from a storm drainage standpoint. Compare the impacts of this use and this business with some of the others that are specified in this list to determine if this is similar. That is the appropriate way to look and apply the ordinance. He asked what the impact was ascetically What is the impact on the quality of life? What is the impact on the infrastructure. What is the impact on surrounding property values of this use compared with the long laundry list?

Mr. Holt stated that the court of this state in support of that approach. It is basically the first line in Strong's North Carolina index say that zoning being in degradation of constitutionally protected property rights the restrictions and regulations themselves shall be strictly construed against the government against the regulating authority and in favor of the property owner. Any doubt or any hairsplitting shall be resolved in favor of the property owner. That is what the law in this particular state is when you are interpreting long lists. He stated he takes the position upon being familiar with the Allen's use, being familiar with the property, having observed its impact upon the surrounding community and upon the public infrastructure, that it is no greater than these businesses that are listed specifically. It is certainly much less than the vast majority of these established lists and therefore, upon review on the findings of fact, it is within your authority to grant this particular petition. It is within your authority.

Concerning the relationship of the comprehensive plan and the zoning ordinance itself. Here too, North Carolina law, he stated he was going to quote from court of appeals and supreme court cases, on point. He quoted from David Lawrence's book from the Institute of Government. Mr. Lawrence talks about the relationship of the comprehensive plan and what is a comprehensive plan, what is the statutory meaning or proper interpretation of the statutory reference, both in county enabling legislation and also the municipal legislation that there shall be a comprehensive plan and that zoning decisions, whether they be by the County Commissioners, the City Council or by this Board of Adjustment shall be in accordance with the comprehensive plan. He asked what about the situations where there is a conflict between strict interpretation of the comprehensive plan and strict interpretation of the zoning ordinance. According to David Lawrence, having a document which the staff prints upon and the Board of Commissioners adopts after a public hearing and says Land Use Plan is not what the statues are referring to. What the statues are referring to are these cases emphasize that in North Carolina substantive, rational planing and thought, rather than a formal plan document entitled comprehensive plan are vital to justify zoning and rezoning decisions and are what is referred to in the enabling legislation. There does not have to be a document, a formal document, for the mandate that there be a comprehensive planning process to be fulfilled. Furthermore, just because there is a document upon which someone has typed the words Land Use Plan or comprehensive plan does not give it this authority that would be referred to in the statue that it as Mr. D'Ambrosi would say trumps all existing regulations. That is not the effect. That is not the proper interpretation. David Lawrence goes on to quote the court held that the comprehensive plan that upon proper review, it is the review rational planning and thought process performed by the council with reasonable grounds and plausible basis for adopting an amendment or making a land use decision this is sufficient to comply with the statutory requirement even if the formal comprehensive plan itself had not be amended before the rezoning. When there was a conflict, so long as the entity making the decision goes through a rational thought process, taking into consideration recommendations and guidelines of the comprehensive plan, that is all required. Furthermore, you're talking about a specific court case. He asked the board to look at Piney Mountain Neighborhood Association versus the Town of Chapel Hill. He quoted language from the case saying we agree with the Superior Court's findings that the comprehensive land use plan does not set forth mandatory zoning requirements but consists merely of general goals, standards, and guidelines for the implementation of policy. The plan is by its express terms, merely advisory. A comprehensive plan is merely a policy statement to be implemented by zoning regulations and it is the latter. It is the zoning regulations themselves that have the force of law. The comprehensive plan is generally deemed to be advisory, rather than controlling and it may be changed at any time and furthermore decisions may be made after considering the comprehensive plan that are in specific conflict therewith.

Mr. Raxter asked what the date was on that decision. Mr. Holt answered Piney Mountain was a Court of Appeals case from 1983.

Mr. Warren stated he thought what was being confused is a policy driven comprehensive plan to which Mr. Holt correctly refers in the David Lawrence book versus a required finding set forth in your ordinance adopted by the County Commissioners, which is a specific land use plan. He stated he was just trying to give the members of the board the best, correct legal standard that he could give. The Land Use plan evolved here was adopted by the County Commissioners and it is one of your required findings. It really is not as if you can disregard it. It is not a policy driven versus something that went through a public hearing and a process by the County Commissioners. Which, of course, the County Commissioners can certainly alter or amend.

Mr. Raxter stated he thought that was the crux of the District Court decision before was that the board was required by the County Commissioners to find that it was consistent with the Land Use Plan.

Mr. Holt stated he was not suggesting that it be disregarded. The court case, as he quoted, it didn't say could be disregarded, it is a thought process. This sis one of many considerations that you make, general compliance with the comprehensive plan. Similarity, you do not disregard the testimony and the information you receive in the public meeting concerning there are employees in the community that work there. There are customers in the community that drive this particular service. You're obligated to consider all of the information that comes before you at the public hearing and not just a staff interpretation concerning compliance with the comprehensive plan. Here too, he reviewed the comprehensive plan and it is his professional opinion that this application does comply with the comprehensive plan. It is in accordance with the comprehensive plan because this is a type of facility, once again, when you consider the number of employees, when you consider the impact upon the public infrastructure, when you consider noise, light, other impacts, has no grater and much less of an impact upon all of those items than do the types of business that are considered appropriate in the comprehensive plan. That's the analysis that he suggests and it is his professional opinion that the board should go through when they are determining compliance with the comprehensive plan. Furthermore, the language itself acknowledges and suggests that exceptions will be made and are appropriate. If you will refer to 3.31, it is the comprehensive section that is talking about the timing. It specifically says before approving requested exceptions to activity center policies, the county, he stated he assumed it meant a broad term the county means the County Commissioners, the County Board of Adjustment, the County Zoning Enforcement officers, the County officials, you are county officials. The county should find at least the following criteria would be met. If approved the requested exception would result in a development pattern equivalent or superior to that otherwise achievable.

Ms. Sims asked where Mr. Holt was reading from. Mr. Holt stated he was reading from the Wake County Land Use Plan. Ms. Sims asked for the date on the document. Mr. Holt stated he didn't see a specific date on it. Mr. Holt submitted the copy of the Land Use Plan he read aloud from.

Mr. Holt stated but before approving requests and exceptions to the activity center policies, obviously there will be exceptions and it is anticipated there will be exceptions, that the County, the agencies and officials will decide are appropriate. The following criteria would be met. If approved the requested exception would result in a development pattern equivalent or superior to that otherwise achievable. He stated he didn't think there was any suggestion from staff or anyone else that there is anything wrong or objectionable about the development pattern. This is a converted tobacco barn that does not have a commercial atmosphere. It has a rural, agricultural atmosphere. Be compatible with the use or value of adjoining properties. These people have very articulately stated that this business as its use is compatible with adjoining and adjacent property. Furthermore be consistent with the intent of the county plans and policies. He stated he would suggest to the board that farm preservation of open space, preservation of family farms by allowing the owners an alternative supplement to their income does help the preservation of open space, the preservation of family farms. This business started because the farm operation was not a 365 day a year operation. This business started as a supplement to a family farm income to allow them to maintain their rural residential lifestyle to allow them to maintain ownership and management of what was a family farm. He stated he would suggest to the board that the plan itself anticipates and acknowledges that exceptions to the strict activity center policies will be made and are very much appropriate.

Mr. Holt stated it was a tough situation. The County staff are taking a remarkably different approach to land use development and land use planning over the past few years than what was done during much of his 35 year career. Going into rural areas of Wake County and disregarding family farm business that have been there for several decades. Just suggesting that it is appropriate and required that they pick up and relocate, vacate, go out of business without a Board of Adjustment appeal, without the possibility of someone looking at it on a case by case basis, looking at this building, looking at this operation, looking at its impact upon the community, inviting potential opponents to come down and be heard. That is not the way it should operate, that is not the way zoning and land use regulation has operated traditionally in this county and area and its, he hopes, not the way it will operate from this point forward. Whenever they get involved in a case like this, they are problem solvers. They work with staff, they work with the property owner, they work with elected and appointed officials to solve a problem. The Board of Adjustment is just one possible alternative. There are rezoning alternatives, there are amendments to the Land Use Plan alternatives, there are many ways to solve a problem. He stated he would suggest that when you have an unobtrusive case such as this, whereby there is no signage, whereby they have now agreed not to park any farm trucks or big cement trucks or whatever were involved in the last case on this particular site that the most efficient and the fairest way to do the public business is to not let this case get to District or Superior Court or before the Court of Appeals, not require that they go through and rezone the land or go through a comprehensive plan amendment.

Mr. Holt stated he is suggesting to the board, once again, as someone who has spent his entire career appearing before literally hundreds Boards of Adjustment across eastern North Carolina that this is an appropriate case for this board to decide that this is a retail service trade establishment and that when they consider its impact upon the surrounding community and public infrastructure that it has no greater impact and certainly less impact than do many of those specifically set forth in the comprehensive guide for this type of area. Furthermore that the board acknowledge that the plan itself states that there will be exceptions, acknowledges that there will be exceptions and sets forth the standards he mentioned for dealing with those exceptions as well.

Ms. Sims stated she was not present at the April meeting when the board first heard the case. She stated she had several questions and wanted to start with the supplemental income statement. She stated she believed Mr. Holt's representation was that this business provides supplemental income to Huey Allen and his wife. She asked if that was correct. Mr. Holt stated that the tract that is currently owned by Mr. Allen was part of a much larger surrounding family farm that has been in the Allen family for more than 50 years. It was partitioned upon a death and each one of the children got a particular section. Much of the time, they farmed it collectively, lease it out collectively. Mr. Allen, in addition to doing farm work, was employees off the farm for much of his life. Also, returning to the farm, started up this business to supplement the income he had from the farm. Ms. Sims asked if Mr. Allen was really farming his tract, he was working somewhere else. Mr. Holt stated Mr. Allen was farming it. Ms. Sims asked if he was farming it and working somewhere else. Mr. Holt answered that he was. He stated most farmers have to do that these days. Ms. Sims asked if Mr. Allen stopped working somewhere else, the income from the farm itself was insufficient, so he started this business. Mr. Holt stated that was a fair statement. Ms. Sims asked if now this business, which was started in 1998 has been passed onto his son. Mr. Holt answered they both work there now, he thought technically the son is the principal manager. Ms. Sims asked if Mr. Huey is still receiving income from the security business. Huey is receiving income from the security business as well as the soybeans. Mr. Holt stated he thought that was correct. Ms. Sims asked if this business was supplementing the farm income. Mr. Holt answered that he was. Ms. Sims asked if the majority of Mr. Allen's income comes from the business or the farm. Mr. Holt answered that he had no idea. Ms. Sims stated she would ask Mr. Allen that later.

Ms. Sims stated she was looking at the ordinance and had heard Mr. Holt's comments on the Land Use plan. She stated that in 1-1-37(e).2 1a, Neighborhood Business Uses Intent. The intent is that these businesses are accessible by pedestrians from the surrounding neighborhoods, serve the daily convenience and personal service needs of the surrounding neighborhoods. She asked what area is served by Allen Security. She asked if it was Wake County, Zebulon, eastern Wake County. Mr. Holt answered all of the above. Mr. Allen has customers all the way through Wake County and even outside of Wake County. Ms. Sims asked how it complies with the intent, because the intent seems to indicate that it is a neighborhood business. Mr. Holt stated Mr. Allen works there himself, he employes people in the neighborhood; continues to provide job opportunities for people in the neighborhood; continues to have customers who he provides security services for and consultant advice to who are in the particular neighborhood. As far as pedestrians from surrounding neighborhoods, this is certainly accessible to pedestrians from surrounding neighborhoods. Much of the service he provides and much of the business he provides would be in that neighbor's home. He would go or send someone else to that neighbor's home. He is periodically visited by customers by the surrounding neighborhoods and pedestrians from the surrounding neighborhoods. Furthermore, this does not say that you may not serve anybody out of Wake County. It does not say you may not serve anybody who does not walk. This is, once again, an example. Furthermore, these rules and regulations, all zoning in the state of North Carolina shall be construed against the government and in favor of the unrestricted constitutionally protected use of private property. He stated he did not write this and perhaps he and Ms. Sims would have done a better job of writing this and perhaps it may be rewritten in the next six months or two years. He stated he would volunteer to do that and serve on the committee. This does not prohibit what the Allen's are doing; it does not require that all customers walk in. Mr. Allen has customers in the community. Mr. Allen provides jobs in the community and he meets this general statement of intent. Ms. Sims asked if Mr. Holt's interpretation of the intent paragraph is that as long as there are customers from the neighborhood, it does not matter what the boundaries are that are served by this business. Mr. Holt answered that was correct. If Mr. Allen has customers outside the neighborhood or outside of Wake County or someone commuting through who happens to stop by.

Mr. Holt stated he wanted to look about convenience stores. Ms. Sims stated she wanted to look at b3 in the same section of the zoning ordinance. Ms. Sims asked Mr. Holt to tell her what his interpretation was about not having the neighborhood businesses in R-40W districts. She stated she thought Mr. Allen's land was an R-40 Water Supply overlay district. Mr. Holt stated it was not that, that the property was on the edge and they keep trying to bring that up. Across the roadway there is an overlay, but this property is not in the overlay. Ms. Sims asked if Mr. Holt had anything with him that shows it is not in the overlay. Mr. Williams stated it was within the overlay, but that the use is allowed in the overlay. It is not allowed in the watershed district. This property is not zoned watershed. Mr. Holt stated he stood corrected. Ms. Sims asked if the watershed was on the other side of the street. Mr. Raxter stated he thought staff had said that it was. Mr. Holt stated that going back to b3 once again, how he thought the board should look at the statement of intent and the fair way to do it. Look at the specifically listed types of businesses. What type of traffic are they going to require. What type of service area are they going to have. A convenience store is periodically going to be visited by someone outside of Wake County. He thought that attempting to artificially prohibit trade area outside of the neighborhood is clearly not what was intended by this ordinance. Otherwise, these other specifically listed uses as examples would not be there. Clearly, there is no limitation or suggestion that the trade area should be limited in this ordinance.

Ms. Sims stated that it appears to her that under the intent section, it says certain low intensity retail trade. Under uses permitted are banks, convenience stores, drugstores, low intensity retail trade. Mr. Holt stated Mr. Allen's business has less intensity than any of those Ms. Sims listed by way of traffic, by way of storage, by way of noise, lighting. Compare this use with a convenience store. Compare it with one selling beverages, which he assumed could be an ABC permit. That is not the type of neighborhood service facility that is being operated on this site. That is not what this case is about.

Mr. Anderson asked if that was Mr. Holt's opinion. Mr. Holt answered that it was. Mr. Anderson stated that he was one of many. Mr. Holt agreed with him. He stated he was one of many that has years of experience in this particular field. Mr. Anderson stated he had 46 years of experience. Mr. Anderson stated Mr. Holt referred to open space and to family farm business. He stated he was at the site 90 days ago and there were five vehicles parked there. The day before, there was 11 vehicles parked there. On the site 90 days ago, there was one dumpster. There were two dumpsters out there yesterday. 90 days ago, there was some pipes stored behind the building, outside storage. Yesterday, that pile has doubled in size, the storage outside the building. He asked what the site will be like 90 days from today. The landowner has done a fine job, but they have outgrown the site. They brought this Trojan horse, wheeled this building onto the site saying look how pretty it is. What matters is what happens inside that building. That is the crux of the problem. Mr. Holt stated that Mr. Anderson was entitled to his opinion. He wanted to remind Mr. Anderson that he was required to keep an open mind if he was going to sit and deliberate on this case. He stated he would interpret Mr. Anderson's comments as a question and not a statement as if Mr. Anderson had already made up his mind. If Mr. Anderson had made up his mind, Mr. Holt would have to ask him to recuse himself. Mr. Raxter stated that they didn't need to go there.

Mr. Warren stated that the standard was getting confused. There was an appeal several months ago and the appeal was filed by the petitioner and said the Land Development Administrator was wrong that this was not a nonconforming use and the LDA was incorrect in saying that it was not a retail trade service establishment. This is really what Mr. Holt is arguing. He is arguing the appeal of how the staff is interpreting the language. Two months ago, this appeal was voluntarily withdrawn by the petitioner. The correctness of the Land Development Administrators decision on that is not here today. The only decision is whether or not, after you hear both sides, that the Special Use permit should be issued. If the petitioner meets all of these standards, it must be issued. One of those considerations, which was adopted by the Board of Commissioners for your to interpret, is that it is consistent with the Land Use Plan. When you stray into appeal issues that have already been withdrawn, there is no benefit to that at all. It isn't even something the Superior Court would hear in this context.

Mr. Holt stated that he wanted to respond to Mr. Anderson's question, because he was sure it was a question. If the board in its wisdom and mercy grants this Special Use permit, they have suggested that conditions be attached to it. Those conditions would deal with vehicles parked and limiting the number of vehicles parked and the types of vehicles. Furthermore, no outside storage. To answer Mr. Anderson's question of what it would be like 90 days from now, or even six months or five years from now, if the board, in its wisdom sees fit to grant the Special Use permit, they will comply with those conditions. The objectionable items you witnessed will not be present.

Ms. Sims asked what the limit would be for the number of vehicles. Mr. Williams stated there would be no storage of company vehicles. The large vehicles that have the company name on it would not be stored on the site. Ms. Sims asked if employee vehicles could still be on the site. Mr. Williams answered that they could.

Mr. Willis stated it seemed that Mr. Holt was putting forth the argument that this is somewhat of a retail character. The analogy has been used of a convenience store. He stated he thought it was pretty obvious that this is not a convenience store. Mr. Willis stated he heard Mr. Warren brought up retail a moment ago. He asked if the Land Development Administrator found this to be a retail establishment. Mr. Warren stated his understanding was that the Administrator said that this was not a retail establishment within the meaning of the Land Use Plan. Mr. Willis stated it seemed pretty cut and dried to him. It seems to be a square peg in a round hole. Mr. Holt stated it was a retail establishment to the extend that they do sell security products as well as service them and they sell them for retail. Mr. Willis asked if Mr. Holt was arguing that the bulk of their business, greater than 51% of their business would be people walking up and buying products. Mr. Holt answered that it was not what he had said. He has said that this meets a general definition set forth in the code as a retail and service trade establishment. He thought the way to deal with it is to not whether 51% of the customers walk up and purchase, but that you look at overall intensity, overall hours of operation, overall traffic, overall building size, overall number of employees and you compare this with a retail establishment such as that specifically mentioned. As an example, let's compare the intensity of this from a lighting, perhaps offsite pollution, to a convenience store with gas pumps or to a convenence store with an ABC permit. Less possibility of crime, of traffic accidents out front, that is how he suggest that the board performs their analysis and that the board does not make their decision based upon whether or not this person sells beer to walk up pedestrians, but rather look at the service trade establishment and ask if it is less objectionable, less impact upon public infrastructure, less adverse impact on the surrounding community. That is how the board should proceed with their analysis and not by the product that they sell and whether people walk up.

Mr. Warren stated it was up the board to decide whether or not it is consistent with the Land Use Plan. Mr. Holt stated that if he was at all aggressive in his presentation, it was because there was a suggestion that the board does not have the authority to make determinations. Just because staff says that it is not in a community activity center, the permit cannot be granted. He stated it was not true. He stated the board has the authority to make the finding, just like the county attorney suggested. That is the law of the state.

Mr. Williams stated he did want to summarize some testimony from the April hearing. Mr. Mike Ogburn, a certified residential appraiser, went out to the site. Mr. Ogburn found that the use was not dissimilar from the uses around Edgemont Road. He found that as far as traffic and noise was concerned that the use did not increase traffic and noise in the area and did not substantially injure the value of adjoining properties. That is a finding that they are supposed to meet and they meet that. As far as site plan is concerned, they do provide a 10 foot buffer along Edgemont Road. They do show the 50-foot buffer along the perimeter. They are meeting all of the setback requirements. They do request that since the Allens do own the adjoining residential property and they love to look out at the expanse of their farmland, it does not make any sense to require them to do the type A landscaping around the perimeter. They would be required to shield themselves from themselves. That does not make any sense. They would request there be a condition on the permit that they not be required to put in the opaque landscape around the perimeter buffer unless and until the Allen or immediate family member no longer lives at the adjoining property.

Mr. Williams stated that as far as impervious surface requirements, the maximum for this zoning district is 12%, they are coming under that at 11.5%. For all the standards and terms they have to meet, under 1-1-37(e)2, they are meeting those standards. They also have an additional condition. They would like this permit to come back to the board in five years to review to make sure they are meeting all terms of the zoning ordinance. They are also requesting that a condition be on there limiting the extent of this Special Use permit such that if Allen Security is no longer on the site, or if it ceases operations, or if the Allens no longer live at the adjoining property that this Special Use permit will terminate. They have looked at case law. There is no case law that prohibits the board from doing that. Furthermore, in 1-1-11, it provides that a Special Use permit can be abandoned by the permit holder, by which point the Planning Director would take the permit and interpret that as being a void permit. That shows that, under the zoning ordinance, the ability of the applicant to put a limitation on the permit that it will terminate upon a certain event happening. Those are the new conditions they have for the board. As Mr. Holt and Mr D'Ambrosi have testified, the board has the broad discretion to review the intensity of this use and to see whether or not it fits under the Land Use Plan as one of the nonresidential uses that can be done in a residential zoning district outside of an activity center. He stated he would submit that it does meet the Land Use Plan.

Mr. Huey Allen stated they needed supplement to pay taxes on the farm. They used to have tobacco allotment, but now that is gone. That was what was being used to pay the taxes. He has put soybeans in, but there are not enough soybeans to pay the taxes on the farm. Soybeans are not a cash crop. They supplement their income from the business. He stated it was not his intent to sell any of the property adjacent to this business. If he does, he would be glad to plant trees around this area. Right now, it is surrounded by soybeans. He stated he wanted to keep the farm so his grandkids can have a farm. He stated he didn't want to subdivide and had heard that the land behind him has been sold. He didn't know what was going to happen to that land, but he wanted to keep his land intact. He stated he would like the board to help this eastern Wake County taxpayer and keep this business going and be able to live in the area.

Ms. Sims asked what the taxes were on the farm. Mr. Allen answered they were around $1300. Mr. Anderson if that was for the 40 acres and the house. Mr. Allen stated it was just for the farm. Mr. Anderson asked about the soybeans and how much they bring in. Mr. Allen gave him the figures and stated that it wasn't enough to pay the taxes. He stated they needed to bring in at least $1000 to keep it under agricultural tax classification. He stated he leased some of the area to a farmer.

Mr. Holt stated he wanted to make sure to include that he had been reading from the Wake County Land Use Plan and the book Legislative Zoning Decisions by David Lawrence.

Chairman Raxter closed the public hearing.

Mr. Compton stated that the vision statement of the Land Use Plan states that of all these objectives they are to balance with the protection of the property rights of the land owner. That goes along with what Mr. Holt was saying about construing decisions in favor of the land owner. He stated several of the goals of the Land Use Plan that talk about protecting the rights of land owners, adapting the use of structures, and things like that to protect the land owners. He stated one of the goals was to protect open space and farm land. He stated there are goals and objectives in the Land Use Plan that lean towards that argument.

Ms. Sims asked Ms. Wilson to look at the Land Use Plan provided to the board by Mr. Holt and tell the board if it was the current plan. Ms. Wilson answered that what Mr. Holt had was the most current plan.

Mr. Compton stated that Mr. Holt had brought up intensity of use. He asked when the zoning districts were created, was that something that was looked at. Ms. Wilson answered that it wasn't really the case. She stated that one of the things that the board needed to be clear on is that the Land Use Plan, unlike what other people around the state do, is updated every 12 to 18 months. With the Land Use Plan, it is what is used to guide the zoning. They look at that document and they look at what is going on in regards to the community as the county grows. One of the things they did in the Land Use Plan in the last update was to create a mile and a half zone that allowed for daycares or things of that nature. In the past, that was not even an option as far as the Land Use Plan was concerned. They are making adjustment to make sure they accommodate what is going on in some of the rural areas that are developing. They don't look at intensity because then you have to ask why have zoning. Mr. Compton stated that when he looked at the zoning, stuff like Industrial is more intense than Commercial. He asked if they should be looking at it as intensity of use rather than specific business types. Ms. Wilson stated it should be looked at based on the zoning that is put in place. That is why they have zoning. She stated the zoning was based on the Land Use Plan as regards to what will work as potential uses in a particular area.

Mr. Odom asked if this use was a convenience store, would it be allowed. Mr. Raxter stated he thought that if it was a convenience store, it would have to be in an activity node. Mr. Compton asked what would be allowed in this area. Ms. Wilson answered that this part was added about two years ago. She stated that the use had to be consistent with the existing residences. The following are allowed: home occupations; offices of resident members of professions where such professions are carried on inside the prospective residents; daycare; parks; low intensity recreation; libraries; schools; fire and other emergency response facilities; plant nurseries; family care homes; group homes; and telecommunication towers. She stated they added this part so there would be a transition zone outside of the neighborhood activity center or any activity center because the older ordinance was a lot more restrictive. There was a boundary and you could not go outside of that boundary. She stated that was their way of recognizing that things are changing in the county and create some transition. Ms. Wilson stated that under the residential support areas, they talked about creating a zone that is compatible to absorbing some of the uses that would be used by residents in the area. She read aloud from III.31, Timing, from the Land Use Plan.

Mr. Raxter stated the public hearing had closed. Mr. Holt stated he felt they were entitled to a rebuttal after Ms. Wilson spoke. Mr. Holt stated the points he thought were important, regardless of the future of Allen Security business, just for the process. The board has the authority to interpret and make exceptions to the strict recommendations of the plan. That is what the most recent section of the Land Use Plan provides, where it talks about the conditions under which exceptions are appropriate. Once again, that is what the North Carolina Court of Appeals has stated in the Piney Mountain case. That plan is a mere guideline. It is the underlying regulations that Ms. Sims was asking about. That overrules what the plan guideline is. The important issue is the process. The Board of Adjustment has the authority to interpret, to make decisions, and to make exceptions of these specific activity center guidelines set forth in the plan.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF THE BOARD

The Board of Adjustment shall not approve a petition for a Special Use Permit unless it first reaches each of the following conclusions based on findings of fact supported by competent, substantial, and material evidence. The Board of Adjustment must make positive findings on the following findings of fact from Section 1-1-11 (C) of the Zoning Ordinance in order to approve or deny this special use request:

(1) The proposed development will not materially endanger the public health or safety.
(2) The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses.

(3) The proposed development will not substantially injure the value of adjoining property, or is a public necessity.
(4) The proposed development will be in harmony with the area in which it is located.
(5) The proposed development will be consistent with the Wake County Land Use Plan.

Motion

Ms. Sims made a motion that in the matter of BA SU-R-2024-05, the Board of Adjustment find and conclude that the petition does not meet the requirements of 1-1-11(C) of the Wake County Zoning Ordinance because it does not meet criteria number 2 or criteria number 5 of the findings of fact. Mr. Anderson seconded the motion. With a vote of 4-1, with Mr. Compton voting against the motion, the motion passed. So ordered.

Item 7, New Business:

There was some discussion on the next steps, should any case be appealed.

Item 8, Old Business:

There was none.



REGULAR MEETING
WAKE COUNTY BOARD OF ADJUSTMENT
August 9, 2005

All petitions complete, Chairman Ronald Raxter declared the regular meeting
of the Wake County Board of Adjustment for
Tuesday, August 9, 2005 adjourned at 1:17 p.m.

Respectfully Submitted:


Ronald Raxter, Chairman
Wake County Board of Adjustment

RR/ak