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    Minutes of 08/14/2007 Board of Adjustment Meeting [adopted]


Regular Meeting
Wake County Board of Adjustment
Tuesday, August 14, 2007
9:00 am, Room 700
Wake County Courthouse
316 Fayetteville Street Mall
Raleigh, North Carolina

Members Present (5): Mr. Ronald Raxter, Mr. A. Thomas Anderson, Mr. Billy Myrick, Mr. Jeffrey Willis, and Mr. James Compton.

Members Not Present (3): Mr. Art Odom, Mr. Gary Shope, and Mr. Tim Sack.

Staff Present (5): Ms. Brenda Coats (Planner II), Ms. Melanie Wilson (Planning Director), Mr. Steven Finn (Land Development Administrator), Mr. Michael Walters (Planner II), and Mr. Matt Burton (Secretary to the Board)

County Attorney Present: Ms. Shelley Eason (Deputy County Attorney)

Item 1, Call to Order: Mr. Raxter called the meeting to order at 9:06 A.M. with five (5) members present.


Item 2, Approval of Minutes of the July 10, 2007 Meeting:

Mr. Myrick made a motion to approve the July 10 meeting minutes as written, and Mr. Anderson seconded. The motion carried unanimously.

Mr. 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.

Mr. Raxter also noted that Ms. Genevieve Sims resigned her seat on the board and the Board of Commissioners plan to name a replacement at their first September meeting. Mr. Raxter thanked the non-regular members for attending to ensure a quorum (and who now shall serve as voting members with five members present).

Before testimony was heard, Mr. Myrick noted that he is a member of the Wake County Fire Commission and asked if this would pose any problems. Ms. Eason said not if he feels he can decide the case independently and if he is familiar with the facts. If he does not vote, there is not the required 4/5 to grant a special use permit, and you would need the consent of the petitioner to hear the case today. Mr. Raxter asked Mr. Ivey in the audience if he is planning on presenting any evidence on behalf of the petitioner. Mr. Ivey said no, although he expressed concern that if Mr. Myrick votes, that there might be complaints after the meeting. Mr. Ivey had no objection. Mr. Raxter said he would have a concern if Mr. Ivey represents the petitioner and presents evidence as Mr. Ivey was a former law partner of his. Ms. Eason said the issue could be tabled until the next meeting. Mr. Raxter sensed that the board members and the petitioners wished to move forward on the issue today, but asked that the infirmities clearly displayed in the minutes.

Planning Department staff members Steven Finn, Michael Walters, and Brenda Coats were duly sworn.

Item 3, BA-SU-2073-07

Petitioner: Jennifer Ehlert, CLH Design, P.A.
Landowner: Bayleaf Volunteer Fire Department Inc.
PIN: 1709.02 59 6297
Size: 2.72 acres
Location: The site is located on the northwest side of Six Forks Road between Norwood Road and Possum Track Road.
Zoned: Residential 80-Watershed (R 80-W), and on all sides of the property
Land Use Classification: Non-Urban Area/Water Supply Watershed

In this case, the petitioner is requesting special use permit approval as required by Article 4-22-0 of the Wake County Unified Development Ordinance (UDO) for the expansion and redevelopment of an existing nonresidential use.


Documentary Evidence: Staff report, PowerPoint presentation, Ortho Map, relevant sections of the Unified Development Ordinance, and a 360-degree video documentation of the landowner’s property.

Testimony: Mr. Walters, Planner II, entered the staff report for BA-SU-2073-07 into the record and stated the petitioner’s name, address, zoning classification, and the nature of the special use request. Mr. Finn used a PowerPoint presentation to identify the location of the property on an Ortho map. The proposed parcel has frontage on Six Forks Road, a Public Road with a 60’ Right of Way. The Wake County Thoroughfare Plan proposes an ultimate Right of Way of 80’ as shown on the proposed site plan. The petitioner must obtain driveway permits from the North Carolina Department of Transportation (see condition # 4).

There is an existing septic system on site. The application indicates that a community water system is to be utilized. (see condition #1) An on site discharge treatment system is proposed for wastewater disposal. The new wastewater disposal system would require approval by the North Carolina Department of Environment and Natural Resources, Division of Water Quality. (see condition # 2).

The existing facility received Special Use approval in 1982. At present, the parcel consists of a legal nonconforming feature, the existing impervious surface limit. The proposed plan shows no further expansion of the nonconforming feature. The Fire Department proposes to expand the existing station. The existing facility does not meet accessible and structural code requirements and does not provide adequate living quarters for full time employees. The proposed plan is designed to remedy these issues.

The provision of an updated fire station at this location will aid in the ability of this facility to provide essential public safety service.

The original fire station was approved in 1982 (Board of Adjustment Case # 719) The petitioner is proposing to expand and redevelop the existing station on the existing 2.72 acre site to include provisions and personnel. The new facility will be used to provide the area with essential public safety services. The proposed use will involve four to eight staff members, seven days/week, twenty-four hours/day, plus two additional staff members weekdays between 8 am to 5 pm. The proposed use will be manned twenty- four hours/day, seven days/week.

The property is zoned Residential-80 Watershed (R-80W). The surrounding property is zoned Residential-80 W with low-density residential uses, to the southeast is an existing convenience store. Section 16-10-2, Bufferyards, requires a 10-foot deep bufferyard with a Type F screening along the right-of-way of Six Forks Road, additionally, a 7.5-foot deep bufferyard with Type B screening is required along the remaining perimeter of the property, (Article 16-10-2(B)(3) the depth of the bufferyard and screening calculated as per the percentage of expansion. The site plan shows compliance with the streetfront bufferyard. The 7.5 foot bufferyard and screening on the remaining of the parcel is in compliance with Article 16-10-2(B)(3), “in the case of an expansion of a lawful existing use, when the degree of expansion does not exceed 50%, such expansion need only provide a bufferyard and screening that meets the requirements of this section to a degree proportional to the degree of the expansion.” The applicant is proposing a 30-foot bufferyard with type B screening around the northern, western, and southern borders as a good faith effort.

Article 15-10-4 Off-Street Parking Schedule, requires a minimum of one (1) parking space per 1000 square feet Safety Service Use. The proposed Safety Service is 16,560 square feet requiring a total of 17 parking spaces. There are 28 proposed parking spaces and 2 accessible spaces proposed with minimum 20-foot wide travel ways throughout the parking area.

Article 3-20-5(C) Stormwater Management, limits the impervious surface coverage to 6% within R80W. A preconstruction impervious as built survey shows the existing impervious as 46,242 square feet or 40.3%. The impervious surface standard was not in place at the time of construction. No further expansion of the existing nonconforming feature is proposed, actually a reduction of the existing nonconforming feature is proposed of which is encouraged. (Article 7-13-2, Unified Development Ordinance) The proposed impervious surface coverage of the site is 44,108 square feet or 38.5%, a reduction of the nonconforming feature. Stormwater management is required to mitigate any routine water related activity on site. (see condition #5). An as-built site plan will be required upon completion and prior to the issuance of a certificate of occupancy to verify compliance with the impervious surface coverage requirements (see condition # 6).

Article 18-12-2, Sign Regulations for Specific Zoning Districts (B) Special Uses, allow for one on-premise sign, not to exceed 4 square feet per side in sign area, and no ground sign exceeding 8 feet in height. A sign is proposed in the northeast corner of the parcel. A sign permit must be obtained from the Wake County Planning Department (see condition # 7).

Article 17-10-7, Performance Standards – Exterior Lighting, requires that no exterior lighting shall cause illumination in excess of one (1) foot-candle at the lot line. A lighting plan will be required for this site (see condition # 8).

Notification letters to adjoining property owners were mailed on July 11, 2007. A public hearing placard was placed on the site on July 27, 2007.

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 Article 19-23 of the Wake County Unified Development Ordinance:

(A) The proposed development will not materially endanger the public health or safety.


3. Soil erosion and sedimentation.

(B) 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.

(C) The proposed development will not substantially injure the value of adjoining property, or is a public necessity.


1. The relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved.

2. Whether the proposed development is so necessary to the public health, safety, and general welfare of the community or County as a whole as to justify it regardless of its impact on the value of adjoining property.

(D) The proposed development will be in harmony with the area in which it is located.

1. The relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved. (E) The proposed development will be consistent with the Wake County Land Use Plan.


Staff recommends that, if the Board of Adjustment reaches positive conclusions on all of the required findings, that it approve the request subject to the following conditions:
Mr. Compton asked for confirmation if the petitioner was reducing the impervious surface area. Mr. Walters answered yes, and it will be reduced from 41 percent to 38.5 percent.

Mr. Ronald Roof, chief of the Bayleaf Fire Department, came forward, and after stating his name, was duly sworn in. He briefly described the project and the reasons for the special use permit. The department and original station, built in 1982, is not keeping up with the growth and emergency response needs in the area, having gone from a department of twenty volunteers to sixty-five volunteers and nineteen full and part-time employees answering over 1,000 calls per year. The current station could not be renovated due to the watershed zoning ordinance. After working with county staff, a proposed zoning amendment was presented to allow the renovation of existing facilities in the watershed. The Board of Commissioners approved this amendment in September 2003. Two architectural design firms have identified structural deficiencies in the current building. After considering the various factors, it was decided that the current building needed to be razed and a new, two-story building should be erected as a headquarters for their facility. The department has worked closely with county staff, the site designer, and architectural firms, as well as with neighbors with the property who have given their unanimous support for the project.

Chief Roof said he believes their project complies with the findings of facts in the following ways: the proposed development will not materially endanger the public health or safety; truck traffic from the station averages six trips per day and is low demand during peak times; the provision of services already exists because there is already an existing facility on site; the site plan will comply with Wake County and state erosion and sedimentation control measures; through the reduction of impervious surface and the provisions of green space and buffer plannings, efforts are being made to protect the public water supplies; the proposed development will comply with all regulations standards generally applicable within the zoning district; the proposed development will not substantially injure the value of adjacent properties and facility is not in conflict with the surrounding area; and the proposed development is consistent with the Wake County Land Use Plan.

Chief Roof then introduced the individuals from the project design team and the architectural firm who were present in the audience.

Mr. Willis asked for clarification of how wastewater is currently being handled and what is bring proposed. Chief Roof said they have a septic system and the closest city system is 2.8 miles away. The old septic system will be abandoned and a new wastewater treatment facility will be built on site and the plans have been submitted to the Division of Water Quality and the plans are under review. Mr. Myrick asked when the building was first built, were there sleeping quarters there. Chief Roof answered no, and when they have had to make room for sleeping quarters, the department has made use of any available space, including attic space, and they realize this is an unapproved space being currently used.

Mr. Ersell Liles and Mrs. Georgia Liles, of 10717 Six Forks Road, and neighbors to the property, came forward in support of the petitioner, and after stating their name, were duly sworn in. Mr. Liles said that his wife grew up on the land just south of property line, and the family currently owns land on three sides of the property (south, west, and north). When they married, her father was the chief at the station, and Mr., Liles was a member of the fire department for 27 years. They plan to be active participants as neighbors to the property and fully supports the project and efforts the department has made.

There was no one else that wished to speak in favor of the petitioner and no one spoke against the petitioner. Mr. Raxter then closed the evidentiary hearing.


There was none. Mr. Raxter reminded the board that since there were five members present, regular and non-regular members, everyone will vote today.


Mr. Myrick made a motion that in the matter of BA-SU-2073-07 that the board find and conclude that the petitioner does meet the requirements of Article 19-23 of the Wake County Unified Development Ordinance, and that a special use permit be granted with the recommended staff conditions. Mr. Anderson seconded the motion. This resulted in a 5-0 vote to approve the special use permit for BA-SU-2073-07. So ordered.


There was none.


Ms. Coats said that each board member should have received in their packet a copy of a letter from Isabel Mattox, an attorney for Mr. Alan Barringer, who’s appeal was heard at the July 10, 2007, meeting of the Board of Adjustment. Mr. Barringer and his attorney were present to request a rehearing by the board and to present the grounds for his request.

Ms. Eason noted that before the matter can be heard, it would require a motion by one of the board members who voted in favor of the motion that passed at the July 10 meeting – meaning Mr. Raxter or Mr. Anderson would be the only two that could offer such a motion, as Ms. Sims is no longer on the board.

Ben Kuhn, Esq. of Kuhn and Ball appeared to represent Mr. Barringer. Pursuant to Rule 20J of the Rules of Procedure for the Wake County Board of Adjustment he requested reconsideration of Mr. Barringer’s appeal, regarding his property and storage of fuel tanks, that was heard before the board on July 10, 2007. He is requesting reconsideration under Humble Oil Refining Company v. Board of Alderman. The basis for his request was that Mr. Barringer did not have the opportunity to present his case fully before the Board of Adjustment because he was not allowed to ask the Planning staff about how they arrived at their interpretation. He asserted that Mr. Barringer should have been afforded the right to cross-examine staff witnesses directly. Mr. Kuhn tendered a letter dated August 9, 2007, from Kirk Bishop of the consultant, Duncan and Associates.

Mr. Raxter asked if this letter was presented at the original hearing. Mr. Kuhn answered no. Mr. Raxter responded that because it was not presented at the original hearing, it was inappropriate to present or discuss it at this time. Mr. Kuhn stated that Mr. Barringer would have liked the opportunity to ask questions of Mr. Lankford about the draft letter Mr. Lankford wrote, dated April 16, 2007. That draft reached a different conclusion from Steven Finn’s May 3, 2007 letter. Mr. Barringer was not afforded the opportunity to inquire why a change in policy took place in the Planning Department.

When questioned by Ms. Eason, Mr. Kuhn stated that if the grounds for reconsideration were the ones Mr. Kuhn presented to the Board, specifically the August 9 letter from the consultant, failure to cross-examine staff about only the internal opinions of the Planning Department staff on the issue of his gasoline storage before the issue came to the Board of Adjustment, and whether the storage was a legal non-confirming use.

Mr. Raxter said it has never been the practice of the Board of Adjustment to allow direct cross-examination of the petitioner to another individual. Petitioners may direct questions to the board itself and the Chair in turn will direct these questions to the opposing side. He stated his opinion that the Board gave Mr. Barringer ample opportunity to present his case and he would not move to reconsider the appeal.

Mr. Kuhn said that Mr. Barringer was his own witness, but he was also his own advocate, and as such, he should have been afforded the right to cross-examine witnesses. It was his understanding that his client was not allowed to question Mr. Finn who wrote the May 3 letter which stated Mr. Barringer was in violation. Mr. Raxter responded that Mr. Barringer was given the opportunity to ask the board to ask Mr. Finn any questions, and if there is any concern about that, he and his client need to read the record. Mr. Kuhn said he understood, but Mr. Barringer simply wants to know, if he is in violation, the who, what, when, where, and how, so he can properly address the concerns, and he feels that he cannot fairly do that by having a surrogate, who is the decision-making body, ask the question for him. He acknowledged that this is not a prosecutorial proceeding, but it is an adversarial proceeding, and he should be afforded his Constitutional right to cross-examine your accusers.

Ms. Eason said that any materials Mr. Kuhn or his client wish to be considered could be tendered as part of the record. (Note: the documents presented by Mr. Barringer and Mr. Kuhn are attached as an appendix to this set of official minutes)

Mr. Anderson said the board held a hearing, Mr. Barringer represented himself, he presented his information, the board heard deliberations, and the board chose to interpret the law in support of the staff and their decision. Mr. Barringer had all the time necessary to present the information he wished to present. A vote was called for and he stands behind the vote that was taken.

Mr. Raxter said that since neither member who voted in favor of the motion in this matter wished to make a motion to reconsider the appeal, the request to reconsider was denied. So ordered.

Mr. Myrick thanked Ms. Coats for including her cell phone number in the board members’ packets so they can notify her if they will be absent or running late.

Hearing no additional business, the meeting was adjourned at 9:50 A.M.

August 14, 2007

All petitions complete, Chairman Ronald Raxter declared the regular meeting
of the Wake County Board of Adjustment for
Tuesday, August 14, 2007 adjourned at 9:50 A.M.

Respectfully Submitted:

Ronald Raxter, Chairman
Wake County Board of Adjustment