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    Minutes of 01/09/2007 Board of Adjustment Meeting [adopted]
MINUTES

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

Members Present (5): Mr. A. Thomas Anderson, Mr. Billy Myrick, Mr. Art Odom, Mr. John Welch, Ms. Genevieve Sims

Members Not Present (4): Mr. Ronald Raxter, Mr. James Compton, Mr. Jeffrey Willis, Mr. Tim Sack

Staff Present (4): Mr. Reginald Goodson (Land Development Administrator), Ms. Brenda Coats (Planner II), Mr. Michael Walters (Planner I), Ms. Stephanie Gilligan (Secretary to the Board)

County Attorney Present: Mr. Scott Warren (Deputy County Attorney)

IN RE MINUTES

Item 1, Call to Order: Vice Chairman Odom called the meeting to order at 10:00 a.m. with six (5) members present.

Item 2, Approval of Minutes of October 10, 2006 meeting. 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. Mr. Welch requested at both references to an "ethics agreement" in Item 5 on page 18be changed to "ethics opinion." All members present voted aye. So ordered.

Vice Chairman Odom 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.

For the record, there was not a site tour on Monday, January 8, 2007.

Mr. Michael Walters and Ms. Brenda Coats were sworn to present testimony for staff.

Item 3, BA SU-2067-07:

Petitioner: Rocky Manning, Merion Investment Properties
Landowner: Merion Investment Properties, LLC
PIN: 0750.01 35 5023
Location: South of Ten Ten Road, within Merion Subdivision, at the corner of Merion Station and Ballytore Drive(s).
Zoned: Residential-30 (R-30)
Land Area: 2.31 acres
Item No. 3 heard at the regular meeting of the Wake County Board of Adjustment held on Tuesday, January 9, 2007, was a Special Use Permit, Petition No. BA SU-2067-07. The petitioner is Rocky Manning, Merion Investment Properties. The landowner is Merion Investment Properties. The property is located south of Ten Ten Road, within Merion Subdivision, at the corner of Merion Station and Ballytore Drive(s). The following members of the Board heard and decided this petition: Vice Chairman Odom, Mr. Anderson, Mr. Myrick, and Mr. Welch, and Ms. Sims.

In this case the petitioner requests special use permit approval as required by Article 4-47 of the Unified Development Ordinance (UDO) to construct one 9,000 square foot parking area for the sole use of parking boats, trailers, and recreational vehicles owned by the members of the Merion Homeowners Association.

SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

Documentary Evidence: Staff report, PowerPoint slide presentation and videotaped presentation of the site; Special Use Permit Application dated 8-21-06; Statement of Justification; Preliminary Special Use Permit Site Plan; six photographs: (1) Eastern view of lot adjacent to Merion Station Drive, (2) Western view across Merion Station Drive, (3) Northern view of Merion Station Drive; (4) Eastern view along Ballytore Drive, (5) Southern view of the property, and (6) Northern view across Ballytore Drive; one aerial photograph; and one environmental site map.

Testimony: Mr. Walters entered the staff report for BA-SU-2067-07 into the record and stated that this is a special use request. The petitioner is Rocky Manning, Merion Investment Properties. The landowner is Merion Investment Properties. The property is located at 5625 Merion Station Drive located south of Ten Ten Road, within Merion Subdivision, at the corner of Merion Station and Ballytore Drive(s). The parcel is zoned Residential-30 (R-30). The proposal is to construct one 9,000 square foot parking area for the sole use of parking boats, trailers, and recreational vehicles owned by the members of the Merion Homeowners Association. The proposed uses are not specifically listed in the use table under Article 4-11 of the UDO. The NAICS (North American Industrial Classifications System) was referenced in order to determine a comparable use as per Article 4-20-1 of the UDO. A staff determination was made that the proposed 9,000 square foot parking area is comparable to an outdoor recreational use under Article 4-33 as most outdoor recreational uses are accessory uses to subdivisions. Provision 1 of Article 4-33-1 of the UDO does not apply to the proposed use, offsite parking, of which there is no minimum lot size requirement as per Article 15 of the UDO. The site is 2.31 acres. The parcel is in Apex's long-range urban services area, and it is not located within a regional activity center. The proposed use is in compliance with the Wake County Land Use Plan. The parcel was originally to be used as a well lot. The parcel is currently used as open space within the subdivision. Residential parking is not an allowable use within open space as per Article 5-12-7. Upon approval, this phase of Merion Subdivision will be revised and the parcel be reclassified as a residential lot. At present there is 0% impervious surface allocated for this parcel. Upon approval, parcel in question will be reclassified as a residential lot with an allowable allocated impervious surface limit of 14%; 11.73% is proposed as far as parking and drive. The proposed buffers will be a proposed 10-foot bufferyard with a Type F screen along the ROW of Ballytore and Merion Station Drives, a 3-foot evergreen perimeter screen along the parking perimeter, and a 40-foot bufferyard with a Type C screen along the eastern border. There are no existing signs, and there are no new signs proposed. Property has frontage both on Merion Station Drive and Ballytore Drive, both being public roads with 50 foot ROW’s. The site currently has access off Merion Station Drive. The petitioner must obtain a driveway permit from NCDOT. If the Board of Adjustment reaches positive conclusions on all of the required findings, approval of the request is recommended with the following conditions:

(1) The petitioner must obtain a Land Use permit from IDPP.

(2) The petitioner must obtain driveway permit from NCDOT.

(3) The petitioner must obtain a final site plan to the Planning Department for approval prior to any construction.

(4) The site must comply with the general site design and performance standards of the UDO.

(5) The petitioner must revise and record an approved revised plat for Merion Subdivision, Phase III, renaming the proposed parcel allocating 14% impervious surface coverage to the parcel for the proposed use.

(6) The petitioner must record the notarized form pertaining to the Order of the Board in the Wake County Register of Deeds and return a copy to the Planning Department.

(7) A final zoning site inspection to verify site plan compliance must be performed by the Zoning Administrator before the Wake County Inspection/Development Plans/Permits Division issues a Certificate of Compliance.

The Board of Adjustment must not approve a Special Use Permit petition unless it reaches positive findings of fact as per the Unified Development Ordinance.

Ms. Sims asked which of the two packages the board members should be looking at. Mr. Walters said they should look at the newest package. Ms. Sims said that one of the recommendations presented was for 14% impervious surface while the written recommendation was 11.73% impervious surface. Mr. Walters stated that the proposal of the site plan from the developer was 14% to cover the 11.73% impervious that is actually proposed to give some leeway. Ms. Sims asked what staff's recommendation is. Mr. Walters answered that the staff recommendation is 14%. Mr. Walters said that the 11.73% is the actual or proposed. He said that the 14% is not necessarily the maximum; he said that the 14% is what it would take to ensure that the impervious surface proposed is covered.

Mr. Myrick asked what the zoning of the parcel is. Mr. Walters answered that it is zoned R-30, and Merion Subdivision is a cluster subdivision. Mr. Myrick asked if the parcel use could be changed at a later time from parking lot to residential. Mr. Walters stated that the physical impairments of the lot prohibit it from being used to build a house on because of the well and septic situation.

Eric Spence, 4700 Falls of the Neuse Road, Suite 140, Raleigh, NC was properly sworn. He stated that he is a real estate attorney representing the petitioner, Rocky Manning and Merion Investment Properties, LLC. He said that they are trying to correct something that they thought was doable originally in the neighborhood, and they found out it was approved erroneously. Mr. Spence said that it was promised to the neighbors when they developed the neighborhood over the last 4-5 years. He said that the original plans for the neighborhood had allowed an RV lot, which was one of the amenities that they proposed to the homebuyers and builders. They subsequently determined that the lot was erroneously approved and they were not allowed to do that. Mr. Spence said they are trying to address that inconsistency and also deliver to the neighbors what they proposed and what the neighborhood wants. He stated that there are members of the Homeowners Association present who can present the neighborhood's wishes. Mr. Spence explained that a house cannot be built on the lot.

Mr. Myrick asked if the people who bought in the subdivision were advised about the proposed parking facility. Mr. Spence said that he thinks they all know about it.

Mr. Welch noted that Mr. Spence said that there are one hundred lots, yet the site plan only proposes thirteen spaces. Mr. Welch asked if that would be enough for the future. Mr. Spence said that he does not know how many homeowners own RV’s and said that the members of the homeowners association could answer that question. He said that the developer has given the homeowners alternatives so that if they do not want the parking area, they would pay the homeowners association a cash settlement in lieu of the parking area. Mr. Welch asked if people are threatening to sue. Mr. Spence said that he had no knowledge of any potential lawsuits.

Mr. Anderson asked if the covenants permit the storage of camping trailers, boats, and vehicles at each unit. Mr. Spence said that they permit them as vehicles that can be parked in the subdivision; it does not specify whether it has to be in front of a house or where it has to be. He said that if the request is approved, the covenants can be amended to clear up any inconsistencies.

Ms. Sims asked what “erroneously approved” refers to. Mr. Spence said that he can not address what that means. He said that it was on the original construction drawings and plans which were signed off on by Wake County. The builder got a letter much later saying that the proposed use was a commercial use that is not allowed in residential neighborhoods. Ms. Sims asked where the vehicles have been stored for the past six years. Mr. Spence said that he assumes that they have been stored in front of individual houses and on the streets.

Mr. Welch said that the staff report notes that on the subdivision plat that was approved and recorded the lot was designated as permanent open space. Mr. Welch asked if his client thought they would be able to use that open space to put the storage or if there is another lot on the subdivision that could be used for this. Mr. Spence said that he does not know the answer, but that the engineer is present.

Mr. Myrick asked how they would control who parks on the lot, how it would be monitored, and how to ensure that it doesn’t become a junkyard. Mr. Spence said the area would be monitored and controlled by the homeowners association. He said that they will deed the land to the homeowners association.

Mike Bucci, 3300 Drexel Hill Court, Apex was properly sworn. He said that he is on the Board of Directors of the Merion Homeowners Association. He stated that all of the homeowners were given a brochure and there was a large sign posted in the neighborhood showing the parking area that was to be used for RV’s, boats, extra cars, etc. Mr. Bucci said that the covenants specifically state that those types of vehicles are not allowed to be parked on the individual lot properties. He said that many homeowners were attracted to the neighborhood because it would have the parking area that could store the vehicles that could not be parked in their own driveways. Mr. Bucci said that the board of the homeowners association will manage the parking area. He said that the method of allocating space is still to be determined. He said that the landscaping company will landscape the lot.

Mr. Welch asked how Mr. Bucci knows that he speaks for the majority of the homeowners. Mr. Bucci said that he does not have a written poll, but they have had many meetings about the amenities in the subdivision, and the majority has said that this would be an amenity that they would like. Mr. Welch asked if it is the Board of Directors’ opinion that thirteen spaces would be sufficient for the majority of homeowners who want this amenity. Mr. Bucci said that he is not sure that he can answer that, but he thinks that it is something that they can work with.

Ms. Sims asked if they have polled the homeowners and seen that 50%+ want this. Mr. Bucci said that there are still a few homes being built. He said that he cannot say precisely today that 50%+ of the homeowners want it. Ms. Sims asked about the homes that are already there. Mr. Bucci stated that of the homes that are already there, he said that he can say for sure that more than 50% want this amenity.

Mr. Anderson asked what the alternate parking location for these vehicles are. He said that he thinks that providing this space is wonderful. He estimated that 10% of the population will have vehicles, so thirteen spaces is within a good limit. Mr. Anderson’s only problem is the design standard: he doesn’t think that sixty feet wide takes care of an 18-foot boat on a trailer being backed into the space. He said that they generally use a 25-foot segment, so he thinks the minimum requirement would be 75 feet instead of 60 feet. Mr. Bucci said that he cannot speak to that specifically.

Mr. Myrick asked if there are any plans for any kind of security around that lot. Mr. Bucci said that they still need to discuss that.

Ms. Sims asked whether they were referring to the developer’s plan or the homeowners association’s plan. Mr. Bucci said that it was the developer’s plan.

Russell Briggs of B&F Consulting, 2805 Tobermory Lane, Raleigh, NC was properly sworn. He said that the point regarding backing requirements for the parking spaces is well taken. He said that they have a 60-foot total width, and they have parallel spaces on one side where you would typically see 18-foot spaces on either side of the travel aisle. They have one side of the lot set up for some longer parallel spaces. He said that the travel lane width is in excess of 25 feet. He said that instead of a typical parking lot space being 8 feet wide, they have provided a 12-foot wide parking space to accommodate the backing criteria.

Ms. Sims asked if he had nine 18’x12’ spaces. Mr. Briggs said that is correct. Ms. Sims asked if he had four 30’x10’ parallel spaces. Mr. Briggs said that is correct.

Mr. Anderson noted that the code states that for every ten parking spaces you must have one handicapped space that is 12 feet. Mr. Briggs said that they could use the last space as part of the turnaround for the additional six inches. Mr. Anderson suggested designating a few spots as 10-foot spaces to pick up the additional six inches. Mr. Anderson said that his only concern is the depth of the lot when backing a boat into the parking spaces.

Ms. Sims asked what the total impervious surface would be if they accepted Mr. Anderson’s recommendation. Mr. Briggs answered that they would still be under 14%.

Ralph Tripp, 5604 Merion Station Drive, Apex, NC was properly sworn. He said that when they purchased their lot, one of the final deciding factors was having a place to park their motor home. He said that he is in possession of the letter stating that the parking area was initially accepted by Wake County Planning but it was in error. He said that he would like to see the lot happen because the closest place he can store the motor home is near Lake Jordan at $70 per month. He said that the original plan for the lot was in a different location that he preferred over the current proposed location. Mr. Tripp said that he has interest in using that lot as a well lot.

Ms. Sims asked why Mr. Tripp has interest in its use as a well lot. Mr. Tripp said that he talked to someone who lives close to the proposed RV lot. He said that this person is one of the witnesses.

Steven Dolan, 3204 Ballytore Drive, Apex, NC was properly sworn. He said that he is on the developed lot directly across from the proposed parking area. He said that when he purchased his lot, he had a brochure showing where the vehicle storage lot will be. He said that the lot was not proposed in the location where it is currently proposed. Mr. Dolan said that he paid top dollar for his lot since it would be near open space where nothing could be built. He said that eight months into the process bulldozers were cutting trees down; he discovered that they were moving the location of the RV lot. Mr. Dolan was informed that they ran into problems with the pipeline company; he said that this is a secondary well lot. He spoke to Aqua Utilities who owns the lot, and there is a well pipe there stubbed up. He said that he is concerned because if they ever have to use that well, the motor homes and boats will have been dripping oil, and he does not want that in his water. He said that he will have to look at the parking lot from his property. He stated that this lot will injure his property value. Mr. Dolan said that there are four other lots at the end of Hardridge Court. The developer said that Ballytore Drive was a public road; Mr. Dolan said that the homeowners association will have to take over Ballytore Drive since DOT will not take over a road with less than four houses.

Ms. Sims asked what Mr. Dolan’s lot number is. He answered 82. Ms. Sims said that according to the site plan, there is natural area directly across from Mr. Dolan’s lot. Mr. Dolan said that you can see from one end of the lot to the other end. He added that in the middle of the summer you might not be able to see through the lot, but the rest of the year you can see from one end of the lot to the other. Ms. Sims asked where the well is. Mr. Dolan pointed out on the site plan the location of the well half way down his lot.

Mr. Anderson stated as a matter of correction that it is a public street that is a dedicated right-of-way; the maintenance is not accepted by the state.

Mr. Welch asked if the parking area concerns Mr. Dolan more than the landfill across the way. Mr. Dolan said that the fill was there when he bought the lot. He said that it did not concern him. He was told that the trash was always going to look as it did, and it does not bother him. Living in what looks like a parking lot would bother him. Mr. Welch asked if it would bother him if the lot was cleared to build a house on the lot. Mr. Dolan said that he would welcome a neighbor, a baseball field, a soccer field, or something that would increase his property value as opposed to something that would injure his property value.

Mr. Myrick asked Mr. Warren about the parking area. He said that the developer owns the land. He asked how the homeowners association will be able to use the parking lot without control of it since the developer could in the near future charge a monthly fee for the parking spaces. Mr. Warren said that would be up to Mr. Spence. Mr. Warren said that there is nothing right now that would prohibit that.

Mr. Welch asked Mr. Warren if it is within the Board’s authority to add a condition that the developer has to deed the parking area to the homeowners association. Mr. Warren said that they could do it if they agree to it.

Ms. Sims said that she understood that the attorney for the developer stated that they would title the lot over to the homeowners association.

Mr. Briggs that on the other side of Merion Station Drive there is a large oil and petroleum pipeline; he stated that there are regulations that limit how close a well can be drilled to the pipeline. That excluded the area as use as a well lot. He added that the existing wells there are adequate for the subdivision. Mr. Briggs said that there is in excess of 200 feet of natural vegetation between the other side of Ballytore Drive and the proposed parking facility. He added that they are proposing dense screening.

Ms. Sims asked for clarification about which lot cannot be used for a well lot due to the petroleum pipeline. Mr. Briggs answered that the proposed parking facility lot is the lot that cannot be used as a well lot.

Mr. Warren asked if there is a community well pipe on the lot. Mr. Briggs answered no, and there is community water service on Merion Station Drive and Ballytore Drive. Mr. Odom said that it was testified earlier that a well has been drilled and capped. Mr. Briggs said that he is not aware of the drilled well & cap.

Mr. Spence said that the developer has no desire to collect dues or make any money on the parking lot; the developer’s sole purpose is to try to give the homeowners what he thought he would give them.

Mr. Welch asked staff where the picture titled “Southern view of the property” was taken from. Ms. Coats answered that the picture was taken from the intersection of Ballytore & Merion Station Drive. Mr. Welch asked what kind of landfill is located near there. Mr. Walters said that it is a basic landfill.

Ms. Sims asked if the landfill contains construction and debris. Mr. Walters said that he does not believe.

Mr. Odom 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 Article 19-23-8 of the Unified Development 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 of the required findings, that it approves the request subject to the following conditions:

(1) The petitioner must obtain a Land Use permit from the Wake County Inspections/ Development Plans/Permits Division.

(2) The petitioner must obtain a driveway permit from the North Carolina Department of Transportation.

(3) The petitioner must submit a final site plan to the Planning Department for approval prior to any construction.

(4) The site must comply with the general site design and performance standards of the UDO.

(5) The petitioner must revise and record an approved revised plat for Merion Subdivision, Phase III, renaming the proposed parcel and allocating sufficient impervious square footage to the parcel for the proposed use.

(6) The petitioner must record the notarized form pertaining to the Order of the Board in the Wake County Register of Deeds and return a copy to the Current Planning Section of the Planning Department.

(7) A final zoning site inspection to verify site plan compliance must be performed by the Zoning Administrator before the Wake County Inspection/Development Plans/Permits Division issues a Certificate of Compliance.

Motion

Mr. Welch made a motion that in the matter of BA SU-2067-07 that the Board find and conclude that the petition does meet the requirements of Article 19-23-8 of the Wake County Unified Development Ordinance and the special use permit be granted with the recommended staff conditions. Ms. Sims requested adding a condition to the staff conditions being that the well easement be terminated, that the well on the storage lot be closed and that once the lot has been developed for recreational storage and all of the landscaping placed around it that it be within 30 days deeded to the homeowners association. Mr. Welch accepted that modification to his motion. Ms. Coats asked for an additional staff recommended condition being that the area be used only for the residents and members of the Merion Subdivision.

Mr. Welch withdrew his original motion.

Mr. Welch made a motion that in the matter of BA SU-2067-07 that the Board find and conclude that the petition does meet the requirements of Article 19-23-8 of the Wake County Unified Development Ordinance and the special use permit be granted with the recommended staff conditions and the additional conditions that the developer terminate the well easement, that the developer close the well on the lot, and that within 30 days after constructing the storage area the parking lot be deeded to the homeowners association, and that this proposed parking area only used for the residents and homeowners of the Merion Subdivision. Ms. Sims seconded the motion. With a vote of 5-0, the motion passed. So ordered.


Item 4, BA SU-2066-07:

Petitioner: Wendy MaGuire
Landowner: John and Wendy MaGuire
PIN: 1608.02 66 8527
Location: On the eastern side of Sauls Road, south of Contender Drive.
Zoned: Residential-30 (R-30)
Land Area: 1.00 acres

Item No. 4 heard at the regular meeting of the Wake County Board of Adjustment held on Tuesday, January 9, 2007, was a Special Use Permit, Petition No. BA SU-2066-07. The petitioner is Wendy MaGuire. The landowner is John and Wendy MaGuire. The property is located on the eastern side of Sauls Road, south of Contender Drive. The following members of the Board heard and decided this petition: Vice Chairman Odom, Mr. Anderson, Mr. Myrick, and Mr. Welch, and Ms. Sims.

In this case the petitioner requests special use permit approval as required by Section 4-11 of the Wake County Unified Development Ordinance (UDO) to operate a child care center 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 Application dated 8-18-06; Statement of Justification; Preliminary Special Use Permit Site Plan; Preliminary Soils Evaluation and Septic Layout; five photographs: (1) Eastern view facing the front of the existing residence, (2) Northern view of the existing residence, (3) Northeastern view of the rear of the property; (4) Eastern view of the rear of the property, and (5) Southeastern view of the existing residence; one aerial photograph; and one environmental site map.

Testimony: Ms. Coats entered the staff report for BA SU-2066-07 into the record and stated that it is a special use request. The property is zoned R-30 located at 8909 Sauls Road. The landowner and petitioner is John & Wendy MaGuire. Their proposal is to operate a child day care center with associated parking. The property is located on the eastern side of Sauls Road, south of Contender Drive. There is no flood soil or riparian buffers on the property. The site plan shows the existing residential structure, septic location, and proposed parking. The Wake County Land Use Plan in this area calls for low-density residential. It is not located within a regional activity center. The property has frontage on Sauls Road, which currently has a 60-foot right-of-way. The Wake County Thoroughfare Plan indicates that Sauls Road will have an 80-foot ultimate ROW. The site plan shows the additional 10 feet of ROW being dedicated along the Sauls Road frontage of this site. A driveway permit from NCDOT is required for the non-residential driveway access. Site is currently served by an individual well and by an on-site septic system. A permit for the existing utilities is required from the Wake County Department of Environmental Services. A building permit for the existing single-family dwelling was completed on May 17, 2002. Another building permit was completed on November 19, 2003 to change the garage to a family room, finish the attic space for office/storage and to add handicap ramps to the dwelling. A building permit was completed on January 7, 2004 for an in-home day care use for 12 children. The petitioner is proposing to change the use from a single family dwelling to a child care center for fifteen children, ages 6-16 with three employees. Residential allows a maximum of 30% impervious surface coverage; 16.68% impervious surface is proposed for the site, and all of the impervious surface is existing. No stormwater management will be required. The parking requirements are that there be a minimum of one parking space for every full-time employee, and an off-street drop-off/pick up area size to accommodate the demands of projected enrollment and located so that children do not have to cross traffic areas and conflicts with traffic flows on adjacent streets is avoided. Since there will be three employees, three parking spaces are required; four parking spaces are proposed. The bufferyard requirements are a 10-foot bufferyard with Type F street front screen along the ROW of Sauls Road, and a 40-foot bufferyard with Type C screening along the remaining perimeter of the property. The 10-foot bufferyard along the ROW of Sauls Road is shown on the proposed site plan. There is a variance request that, should the Board grant the special use, will be heard to consider the decking and portions of the existing residence as well as the septic and drainfield area that are located within the required buffers. No new signs are being proposed, however, the petitioner must relocate an existing sign outside of the ROW, obtain a building permit for the identification sign, and submit a revised site plan showing the sign relocation.

Mr. Welch asked how much the sign will need to be moved to be in compliance. Ms. Coats said that it may cut into the turn radius.

Wendy MaGuire, 302 Edgewood Circle, Whiteville, NC was properly sworn. She said that they are proposing to change the use from a live-in daycare to a daycare center. She said that prior to purchasing the house, it was used as a live-in daycare and the sign was already there. She stated that they intend to take the sign down. Ms. MaGuire said that the fifteen people who will be in the house will include the three employees. She said that they do not intend to change the number of people being served, but it would not be used as a primary residence.

Ms. Sims asked if they were intending to convert the entire building. Ms. MaGuire said yes.

Mr. Odom asked if they would hire someone to run the daycare. Ms. MaGuire said that she would hire someone to run the daycare, but she would have oversight of it.

Mr. Myrick asked how many of these facilities she has. Ms. MaGuire said that this would be their first daycare center.

Mr. Odom asked why she came to Raleigh to get a daycare center. Ms. MaGuire said that she has other facilities in Raleigh where she does business, and this property became available in a good area, so they purchased it. Mr. Odom asked if they own the property. Ms. MaGuire said yes.

Mr. Welch asked if this facility would cater to special needs children. Ms. MaGuire said that they would have special needs children. Mr. Welch asked if she is licensed with the state to do a daycare center. Ms. MaGuire said that they would need to obtain that license.

Mr. Myrick asked what the maximum number of students they would be able to have. Ms. MaGuire said that would depend on the building inspection and the fire inspection. She said that she believes that a septic review that was done allowed for a maximum of 23 people on the existing septic system. Mr. Myrick asked if they plan to expand. Ms. MaGuire said no.

Mr. Odom said that in order to expand they would need more employees; hence, that would mean more parking. Mr. Odom asked what the ratio of child to adult is. Ms. MaGuire said that it depends on the age of the children, but the requirements are typically one adult per seven children. Ms. MaGuire said that the house is not conducive to have more than 12 children, so the don't plan on having more than 12.

Nick R. Harrison, Jr., 909 Two Brothers Run, Raleigh, NC was properly sworn. Mr. Harrison is an adjacent landowner. He is opposed to commercial use. He has concerns that water ponds within 50 feet of his well. He presented photos taken on 12/25/2006 of the ponding water to the Board.

Ms. Sims asked Mr. Harrison how long he as resided at 909 Two Brothers Run and Mr. Harrison stated three years. Ms. Sims asked if this property was just being used during the day and Mr. Harrison replied that it he did not have the schedule. Mr. Odom asked if there were any more questions. Mr. Myrick asked if he had his well checked for contamination and Mr. Harrison replied he has not.

Rebuttal
Ms. MaGuire stated that she purchased the property in August 2006. The business hours are from 8:00 AM – 6:00 PM.

Mr. Myrick asked if this were approved, would this be sold as commercial? Mr. Warren stated that it would have to be approved for food and lodging by the building inspector and would be subject to future approvals by the local government.

Mr. Welsh asked if there were any problems with the well on the property and Ms. Coats replied that there was not a problem with the well

Vice Chairman Odom 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

If the Board of Adjustment reaches positive conclusions on all of the required findings, approval of the request is recommended with the following conditions:

(1) The petitioner must obtain approval from the Department of Environmental Services for the well and septic system.

(2) The petitioner must obtain a change-of-use permit and the appropriate inspections from IDPP.

(3) The petitioner must obtain a driveway permit from NCDOT.

(4) The petitioner must submit a revised site plan showing the sign relocation outside of the right-of-way.

(5) The petitioner must obtain a building permit and the appropriate inspections for the relocation of the identification sign.

(6) The petitioner must record the notarized form pertaining to the Order of the Board in the Wake County Register of Deeds and return a copy to the Planning Department.

(7) The petitioner must obtain a building permit and the appropriate inspections for the relocation of the identification sign.

(8) The petitioner must record the notarized form pertaining to the Order of the Board in the Wake County Register of Deeds and return a copy to the Planning Department.

The Board of Adjustment must not approve a Special Use Permit petition unless it reaches positive findings of fact from Section 1-1-11 (C) of the Zoning Ordinance.

Motion

Mr. Welsh made a motion that in the matter of BA SU-2066-07, the Board of Adjustment find and conclude that the petition does meet the requirements of Article 19-23 of the Wake County Unified Development Ordinance and that the special use permit be granted with all the recommended staff conditions and additional conditions that the business hours be limited to those stated in the application, and to obtain the permit(s) to operate from the appropriate agencies. Mr. Anderson seconded the motion. Ms. Genevieve Sims abstained from voting on this item. With a vote of 4-1 the motion passed, with Mr. Myrick voting against, the motion passed. So ordered.

Item No. 5: BA V-2065-07

Petitioner: Wendy MaGuire
Landowner: John and Wendy MaGuire
PIN: 1608.02 66 8527
Location: 8909 Sauls Road
Zoned: Residential-30 (R-30)
Land Area: 1.00 acre

Item No. 5 was heard at the regular meting of the Wake County Board of Adjustment held on Tuesday, January 9, 2007, was a Special Use Permit, Petition No. BA V-2065-07. Two variances to allow portions of the existing building and septic system to remain within the required bufferyards. The following members of the Board heard and decided this petition: Vice Chairman Odom, Mr. Anderson, Mr. Myrick, and Mr. Welch, and Ms. Sims.


SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

Documentary Evidence: Staff report, PowerPoint slide presentation and videotaped presentation of the site; Statement of Justification; Preliminary Site Plan; (1) Eastern view facing the front of the existing residence, (2) Northern view of the existing residence, (3) Northeastern view of the rear of the property; (4) Eastern view of the rear of the property, and (5) Southeastern view of the existing residence; one aerial photograph; and one environmental site map.

Testimony: Ms. Coats entered the staff report for BA V-2065-07 into the record and stated that the property is zoned R-30 and located at 8909 Sauls Road. The landowner and petitioner is John & Wendy MaGuire. In this case, the petitioner is requesting variances to allow portions of the existing building to be used for a daycare, and the septic system to remain within the required bufferyard. The building met the required 10-foot setback for single-family construction in R-30 zoning district. The non-residential use is required to provide a 40-foot, type C bufferyard along the perimeter of the property.


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

The Board of Adjustment may in passing upon appeals, vary or modify in accordance with procedures specified below, any regulation or provision of the Ordinance relating to the use, construction, or alteration of buildings or structures or the use of land when practical difficulties or unnecessary hardships would result from carrying out the strict letter of the regulation or provision. The Board will ensure, in so doing, that the spirit of the Ordinance is observed, public safety and welfare secured, and substantial justice done, both for the landowner and the public at large. The Board may impose such conditions in granting such variances as will secure substantially the objectives of the regulations or provisions being varied or modified. A variance shall not be granted unless the Board of Adjustment makes findings of fact supporting its conclusions, and concludes, as a minimum that:

(1) There are special circumstances or conditions applying to the land, building, or use referred to in the application, which exists through no fault of the property owner;

(2) The granting of the application is necessary for the preservation and enjoyment of substantial property rights;

(3) The granting of the application will not materially affect adversely the health, or safety of persons residing or working the neighborhood of the proposed use and will not be materially detrimental to the public welfare or injurious to property or improvement in such neighborhood; and

(4) A denial of the application would cause practical difficulties or unnecessary hardships to the landowner.

Recommendation

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

(1) The petitioner must record the notarized form pertaining to the order of the Board in the Wake County Register of Deeds and return a copy to the Planning Department.

(2) There are special circumstances or conditions applying to the land, building, or use referred to in the application, which exists through no fault of the property owner. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights.

(3) The granting of the variance will not have a material adverse affect on the health or safety of persons residing or working in the neighborhood of the proposed use, and will not be materially detrimental to the public welfare or injurious to property or improvements in such neighborhood.

(4) A denial of the application would cause practical difficulties or unnecessary hardships to the landowner.

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

Considerations:
c. Soil erosion and sedimentation.
(6) 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.

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

Considerations:

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

Consideration:

(9) The proposed development will be consistent with the Wake County Land Use Plan.

Consideration:
Motion

Mr. Welsh made a motion that in the matter BA V-2065-07, the Board of Adjustment find and conclude that the petition does not meet the requirements of Article 19-26 of the Wake County Unified Development Ordinance. Ms. Sims seconded the motion and stated that it fails to satisfy all the conditions of the Unified Development Ordinance including being necessary for the preservation and enjoyment of substantial property rights. Mr. Myrick seconded the motion. With a vote of 0-5, the motion was not passed. So ordered

Item 6, New Business:

Melanie Wilson informed the board of an upcoming workshop.

Item 7, Old Business:

Mr. Warren gave an update on the following cases that were previously heard by the board:
a. Status of the Allen Security Company case
b. Randy Coley property located on Airpark Road
c. Claude Stevens prep academy
d. Cummings appeal

REGULAR MEETING
WAKE COUNTY BOARD OF ADJUSTMENT
January 9, 2007

All petitions complete, Vice Chairman, Art Odom declared the regular meeting
of the Wake County Board of Adjustment for
Tuesday, January 9, 2007 adjourned at 11:05 a.m.

Respectfully Submitted:


Vice Chairman, Art Odom
Wake County Board of Adjustment