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    Minutes of 8/12/2008 Board of Adjustment Meeting [adopted]
MINUTES

Regular Meeting
Wake County Board of Adjustment
Tuesday, August 12, 2008
9:00 am, Room 700
Wake County Courthouse
316 Fayetteville Street Mall
Raleigh, North Carolina

Members Present (8): Mr. Ronald Raxter (chairman), Mr. Art Odom (vice-chairman), Mr. Tim Sack, Mr. Billy Myrick, Mr. A. Thomas Anderson, Mr. James Compton, Mr. Donald Mial, and Mr. Timothy Clark.

Members Not Present (1): Mr. Terence Morrison.

Staff Present (8): Ms. Melanie Wilson (Planning Director), Mr. Steven Finn (Land Development Administrator), Ms. Brenda Coats (Planner II), Ms. Celena Everette (Planner II), Mr. John Schodtler (Planner II), Mr. Justin Rametta (Planner I), Mr. Matt Burton (Clerk to the Board), and Mr. Russ O’Melia (Assistant Clerk to the Board).

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

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

Item 1, Call to Order: Mr. Raxter called the meeting to order at 9:02 A.M. with eight (8) members present.

IN RE MINUTES

Item 2, Approval of Minutes of the June 10, 2008, Meeting:

Mr. Sack made a motion to approve the June 10 meeting minutes as written, and Mr. Odom seconded. The motion carried unanimously.

Planning Department staff members Steven Finn, Brenda Coats, and Justin Rametta were duly sworn. Mr. Raxter noted that all five regular members were present for voting purposes.

Item 3, BA-SU-2096-08

Petitioner: Russell Reeves
Landowner: Russell Reeves
PIN: 0723.01-49-8729
Size: 7.14 deeded acres
Location: The site is located on the northern side of Ridgeback Road, between Rolling Knoll Road and Moulin Way.
Zoned: Residential-40 Watershed (R-40W)
Land Use Classification: Short-Range Urban Service Area/Water Supply Watershed

The petitioner is requesting special use permit approval as required by Section 4-11 of the Wake County Unified Development Ordinance to allow a bed and breakfast homestay as an accessory use to an existing single-family home.


SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

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

Testimony: Mr. Rametta, Planner I, entered the staff report for BA-SU-2096-08 into the record, and stated the petitioner’s name, zoning classification, and the nature of the special use request. Mr. Rametta used a PowerPoint presentation to deliver the staff report and identify the location of the property on an Ortho and Zoning map.

Mr. Russell Reeves, the petitioner, came forward and was duly sworn. He testified that this special use request will have minimal effect on neighboring properties, traffic impact will be minimal, and that he will live in this property and will not hire anyone else to run the business. He will make no changes to the property. Visitors will be required to arrive by 10:00 P.M. any night.

Ms. Donna Turner of 8127 Ridgeback Road, Apex, NC, came forward and was duly sworn. She entered into evidence a letter, with picture copies, that she wrote dated August 7, 2008, and circulated it among the board members (Appendix I). She said the maintenance of the road is her biggest concern as the property owners pay for the gravel repaving. The increase in traffic will cause disrepair to the road more often. Another concern is the occupancy as he has a family and they live in another house. She questioned if this will be his primary residence as no one is staying there at present. She enumerated several questions: How long must the petitioner stay in the house? Who spot checks the residence for compliance with the rules? Will the bed and breakfast be allowed to hold business events? Do the neighbors need to be notified if the bed and breakfast would be turned back into a residence? What are the parking and traffic rules for this type of business? Will there be a change in trash pickup with the increase in refuse? Can the petitioner be made to take more responsibility for road maintenance with the increase in traffic? Will property boundary rights be respected, as this area is very rural?

Ms. Lisa Yarborough of 1017 Rolling Knoll Road, Apex, NC, came forward and was duly sworn. She testified that she spoke with Mr. Reeves about the neighborhood being a single-family residential neighborhood. She expressed a concern about the rule of law and whether or not he will use this house as his principal residence. She expressed concerns over the neighborhood character changing, storm runoff, and the increase in use of his septic system.

Mr. Sack asked how many people live on the road. Ms. Yarborough responded that there are seven homes on Ridgeback Road and five on Rolling Knoll Road. Mr. Raxter asked if there was a public strawberry picking business at a home on the road. Ms. Yarborough said yes, at a farmstand, which results in minimal traffic on Ridgeback Road. Mr. Myrick asked for confirmation that no one lives in the house now and how long has this been the case. Ms. Yarborough said no one lives in the home, but Mr. Reeves works there on a daily basis. They have only occasionally spent the night there. Mr. Reeves bought the property in November 2007 and the intention was to move in immediately.

Mr. Scott Forbiccio of 1028 Rolling Knoll Road, Apex, NC, came forward and was duly sworn. He testified the road is a dead-end gravel road with one way in and out. With increased traffic in the neighborhood, this could endanger children at play. He lives adjacent to Mr. Reeves’ property and expressed concern that this business may upset the tranquility of the neighborhood.

Mr. Reeves returned to the podium and said he is way moved in and will be fully moved in by the time the business would begin, in 2009. He offered to double his payment of payment toward the gravel maintenance on the road. Mr. Raxter asked how the neighbors divide their payments toward the road maintenance. Ms. Turner returned to the podium and said one gentleman divides the cost by how far the neighbors travel on the road, he pays for it, and then bills the neighbors. The road is mile from the mailboxes to Mr. Reeves’ driveway, and the road is mile long entirely. Mr. Raxter asked Mr. Reeves where he lives currently. Mr. Reeves replied time there and time in a home in Apex. He spends the weekends at the property, has three kids, and the house has four bedrooms. Mr. Odom asked how large the house is. Mr. Reeves said 2,300 square feet. Mr. Mial asked if there have been any septic problems at the property. Mr. Reeves answered not since he has owned the property, and a new system was installed in 2006. Mr. Sack asked if it is his intention to move permanently to this location. Mr. Reeves said yes.

Ms. Turner returned to the podium and said the house has three bedrooms, as one room does not have a closet. Mr. Myrick asked if the home’s septic system was permitted for three or four bedrooms. Mr. Rametta said three. Mr. Raxter asked what county inspection procedures are in place to verify occupancy. Mr. Rametta said there are no specific standards, and the department would accept some documentation, as listed in the staff report, and would then refer to the county attorney’s office for approval.

BOARD DISCUSSION

Mr. Raxter asked what do we consider to be a principal residence. Ms. Eason replied the principal residence is the primary residence, that a person lives there and uses it as the home address, and stays nowhere else more often. Mr. Finn added that the department looks at utility bills, tax records, and drivers’ licenses for verification, as well as tangible, visible evidence that someone is living at the residence. Mr. Raxter asked if this evidence is needed before a special use permit is granted or before the department allows the petitioner to begin the business. Mr. Finn responded in terms of the staff recommendation that when business is being conducted, the petitioner is using the house as his primary residence, but coordinating that is the board’s decision. Mr. Odom said he thinks the petitioner should establish the house as his primary residence before he establishes the business. Ms. Coats concurred, and said that is the way the condition reads. Ms. Eason made a correction that this is Section 4-65 of the UDO, and not Section 4-64. Mr. Sack asked if the board was prohibited from issuing the special use permit if the house is not his primary residence by the time of the application. Ms. Eason said it could be issued with the understanding that at the time the use begins it must be his primary residence. Mr. Raxter said one concern is the traffic situation and he wondered if it would extend to the conditions of the road. Ms. Eason said as a condition of approval, the board must find that the proposed development will not materially endanger the public health or safety, and traffic conditions can be taken into account. Because this is a private road, the board can require the petitioner, as a condition, to compensate the neighbors for wear and tear on the road that his additional usage causes. She said the board might want to address the concern about events that was raised in the testimony and should limit its comments to evidence presented and questions raised in the hearing.

Mr. Anderson the thoroughfare poses the biggest problem, as it does not meet state standards. The homeowners maintain the gravel, unimproved road and any liability falls on this group. Mr. Mial expressed concern over Section 4-65-3 that the operator of the business must occupy the house as his principal residence. Mr. Raxter said the staff’s position is that they will not allow the business to begin until this condition is met. Mr. Myrick expressed concern about the number of bedrooms and the size of the septic system to accommodate it. Mr. Odom said the petitioner is asserting that he will live there as his principal residence and the board must vote on the evidence as presented, and if the petitioner meets the requirements of the ordinance, he cannot oppose the request.

Ms. Yarborough returned to the podium and reiterated her concern that Mr. Reeves does not live there, he only intends to move there. There is no mechanism in place to verify compliance.

There was no one else that wished to speak in favor of or in opposition to the request. Mr. Raxter closed the evidentiary hearing.

Mr. Compton suggested the board consider a condition about events that may take place at the house during its use as a business and did not think they would be in harmony with the area, especially related to parking. Mr. Odom read from Section 4-30. He said he interpreted Section 4-65 to mean that no one can be there except for overnight guests. Ms. Eason said that is a reasonable interpretation. Mr. Raxter said the staff testified that as long as the petitioner uses the house as his principal residence at the time he commences his business, it’s a condition of the special use permit, and as such, he cannot commence business until he establishes this residence. Whether it is or is not his principal residence at this time is germane.

MOTION

Mr. Odom made a motion that in the matter of BA-SU-2096-08, the board find and conclude that the petition does meet the requirements of Article 19-23 of the Wake County UDO and that the special use permit be granted with the recommended staff conditions, with an additional condition that the petitioner double his payment toward the maintenance of the road. Mr. Sack seconded the motion.

Mr. Myrick felt the petitioner would not be in compliance with the septic system. Mr. Odom said that would be up to the Department of Environmental Services, and not this board. Mr. Myrick did not think traffic would be a problem. The problems arise in who is living there, how many people are living there, the availability of rooms, and the number of rooms approved for the septic system. Mr. Anderson asked if this location is the proper place for a multi-family structure and if there is anything prohibiting the property owner from adding onto the structure. Mr. Odom said according to the ordinance he cannot modify or make substantial changes to the property. Mr. Compton said he would argue that a property owner could add three bedrooms if he or she wanted. Ms. Eason said any expansion of a Special Use Permit has to be approved by the Board of Adjustment, and pointed out in Section 4-65-3 that only the operator has to live in the residence. Mr. Sack clarified that the operator would not necessarily have to be Mr. Reeves, rather it could be someone he hires to take care of the residence. Ms. Eason said yes, and only the operator of the business would have to live there as the principal residence.

Mr. Odom and Mr. Raxter voted in favor of the motion, and Mr. Anderson, Mr. Myrick, and Mr. Sack voted against the motion. This resulted in a 3-2 vote to deny BA-SU-2096-08. The motion failed. Those voting against the motion stated their reasons why: Mr. Anderson said due to public health, safety, and welfare. Mr. Myrick said because of public health as related to the septic system. Mr. Sack also said due to public health. The special use permit request was denied. So ordered.

Item 4, BA-SU-2097-08

Petitioner: LRC Durant / Falls Investors LLC.
Landowner: LRC Durant / Falls Investors LLC.
PIN: 1718.02-75-9504
Size: 5.33 acres
Location: The site is located at the southwest corner of the intersection of Falls of the Neuse Road and Durant Road.
Zoned: Residential-40 Watershed (R-40W) and Residential-40 (R-40)
Land Use Classification: Non-Urban Service Area.

Ms. Isabel Mattox, P.O. Box 946, Raleigh, NC came forward on behalf of LRC Durant/ Falls Investors LLC, and was duly sworn. The petitioners continue to talk with neighbors and NCDOT about some issues and possible resolutions to concerns. She requested a thirty-day deferral and asked if the case could be heard at the board’s next meeting. Ms. Eason said as long as the case begins, and if it is continued until next month, that is allowed.

MOTION

Mr. Sack made a motion to continue BA-SU-2097-08 for thirty days and that the case be heard before the board at its next meeting. Mr. Odom seconded the motion. This resulted in a 5-0 unanimous vote to continue BA-SU-2097-08 until the board’s next meeting. So ordered.

Item 5, BA-SU-2099-08

Petitioner: Kathleen Logan
Landowner: Kathleen Logan
PIN: 1831.07 68 0071
Size: 0.94 acres
Location: The site is located on the northern side of Jenkins Road, approximately 440-feet west of Literary Lane.
Zoned: Residential-40 Watershed (R-40W)
Land Use Classification: Town of Wake Forest Long-Range Urban Services Area (LRUSA) and Non-Critical Area, Non-Urban Area Water supply Watershed (NUA-WSW).

The petitioner is requesting special use permit approval as required by Article 4-11 to operate a child-care center for no more than 12 children within an existing residence.

SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED

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

Testimony: Ms. Coats, Planner II, entered the staff report for BA-SU-2099-08 into the record, and stated the petitioner’s name, zoning classification, and the nature of the special use request. Ms. Coats used a PowerPoint presentation to deliver the staff report and identify the location of the property on an Ortho and Zoning map.

Mr. Clark asked why this property is not in Wake Forest’s jurisdiction. Ms. Coats did not know, although it is in the county’s zoning jurisdiction but it does receive water and sewer services. It is not within the town’s city limits.

Mr. Daniel Flebotte, of the law firm Merritt Flebotte Wilson, Webb, and Caruso, came forward, noted that he was assisting Ms. Logan in her presentation before the board, and was duly sworn. Mr. Flebotte addressed Mr. Clark’s question by noting condition B, Section Six that the petitioner secure a letter from the Town of Wake Forest regarding the water and sewer issue, and assured the board that Ms. Logan would do so upon approval of the Special Use Permit. He said that she is getting water and sewer services from the City of Raleigh, and not Wake Forest.

Ms. Kathleen Logan of 1428 Jenkins Road, Wake Forest, NC, came forward and was duly sworn. Ms. Logan testified that when she asked the county why she received water and sewer services from Raleigh while under the jurisdiction of Wake Forest, but not in the town limits of Wake Forest, she was told that it was done by request during the subdivision phase of the property. Mr. Flebotte said Ms. Logan bought the property in 2007, moving from Virginia where she worked as a registered nurse and operated a daycare. She obtained a permit to operate the small existing daycare at her home now. She has made many improvements to the property to bring it toward compliance for a 12-children daycare license. She has added parking spaces for four people, in addition to the two-car garage attached to the home, and there will be no on-street parking. There should be no substantial impairment to traffic flow. Through their research, the petitioner believes she is in compliance with the impervious surface requirements. There should be no injury to surrounding property values. She understands all eight recommended staff conditions, has no objection to them, and has completed many of them already. Ms. Logan contacted NCDOT and they informally responded to her that no further driveway work needed to be done.

Ms. Jean Bithe, a resident of Jenkins Road Subdivision, came forward and was duly sworn. She testified that when Ms. Logan moved to the property, she wanted to turn the house into a school, and added a parking lot (almost a 1/3 of her yard in size), changed the driveway, and erected a sign, although she acknowledged the sign is a legal display. The neighbors expressed concern over these changes. Ms. Bithe suggested the request is another way to turn the house into a school, and noted that Ms. Logan has advertised in this way on the internet, and is thus a home being used as a business. She submitted copies of pictures for the board’s review (Appendix II). There would be many young children near a busy road and there is no evidence yet of a fence. Four times as much traffic exits onto Jenkins Road from the subdivision than ten years ago. She expressed concern over the amount of time it takes for Wake Forest Fire Protection, located across Capital Boulevard, to arrive at the Jenkins Run Subdivision – 14 minutes in the last response. She noted that because the subdivision is on a well system, there are no fire hydrants, and the petitioner’s property has city water. She suggested that the drought, along with the increase in traffic with a daycare, would slow fire protection response time. In a heavy rain, the creek adjacent to, and the ditches alongside, Jenkins Road fill with water and could flood the road prohibiting service access and could also pose a danger to young children. She cautioned that the larger the parking lot and the more concrete allowed on the petitioner’s property, the more storm runoff that will exist. She concluded by warning that allowing the special use permit will set a precedent for the other homes with frontage on Jenkins Road. She acknowledged that a daycare is an allowable use in a home, but noted that Jenkins Road is a residential, not a business, corridor. Three commercial areas better suited to her proposed business are located within five miles of the petitioner’s house.

Mr. Brian Sandy of 7608 Fuller Drive, Wake Forest, NC came forward and was duly sworn. He said his property adjoins the petitioner’s property and is neither for nor against the special use permit, but presented several questions for consideration: In previous Special Use Permit approvals, how were residential property values impacted? Is a granted Special Use Permit limited to the person or the property? Who will enforce the Special Use Permit? He also expressed concern with the additional young children on her property with the creek that divides their properties, which floods often, but is fed by an underground spring and has some water in it all the time. He inquired about his property line being close to the 20-foot buffer. Ms. Coats said the residential setback requirement is 30 feet rear and 15 feet side yard. A buffer reduction is allowed by code and this is not a variance request. There has to be a fence or a birm installed, which was discussed this with Ms. Logan and it is a part of the revised site plan.

Ms. Bithe said if a birm were allowed, that would force the runoff from the parking lot into the ditch and into the creek, and cause flooding. Ms. Coats said the birm she is referring to would be on the western property line, not along the front or the rear. Mr. Raxter asked if there were any impervious surface issues, would mediation efforts have to be done on site. Ms. Coats responded yes, that it is one of the conditions of approval. Mr. Odom asked if the county knows what the impervious surface is. Ms. Coats said not from what has been shown on the plan, but the county has an “as built” from prior mitigation when the expanded parking was installed. The site plan as submitted shows additional impervious that is not calculated on the site plan. 20.88% is what was allowed in the “as built.” Mr. Clark asked about the stormwater management and mitigation on the site. Ms. Coats said there is a retention pond on the eastern corner of the property, and pointed out the location of the creek on a display map of the property.

Mr. Flebotte said Ms. Logan has no intention of building a birm unless required or asked to do so, and the fence appears to be the best solution. When the driveway was built, it was done in conjunction with $8,000 of permitted stormwater drainage controls, installed by a licensed engineer. Ms. Bithe asked since a retention pond and a parking lot exist on the property, where the children would play.

Mr. Charlie Johnson, Chief Deputy Fire Marshall, came forward and was duly sworn. Mr. Myrick asked Mr. Johnson if there were hydrants near the property. Mr. Johnson said not to his knowledge. Mr. Anderson noted that the closest one appeared to be 250 feet away on the map. Mr. Myrick asked if the 14-minute response time for the Wake Forest Fire Protection was an accurate assertion. Mr. Johnson said he was not sure and cannot confirm this time without having time to research it. Ms. Bithe said that the former fire chief from the Town of Wake Forest gave her this figure, and in 2003, there was an 11-minute response to her home. Mr. Flebotte said there are two hydrants shown on the map on both sides of the property. Mr. Odom asked what the impervious surface calculation is now. Mr. Flebotte said it was his belief that the 20.88% calculation was made after the concrete was poured, and should reflect what the calculation is now, and there is no intention of adding any more impervious surface to the property.

There was no one else that wished to speak in favor of or in opposition to the request. Mr. Raxter closed the evidentiary hearing.

BOARD DISCUSSION

Ms. Coats said if no overflow parking will be provided, that will have to be removed from the site plan, or it needs to be included in the impervious surface calculation. The map shows only a proposed overflow area, and if built, the calculation would need to be redone.

MOTION

Mr. Myrick made a motion that in the matter of BA-SU-2099-08, the board find and conclude that the petition does meet the requirements of Article 19-23 of the Wake County UDO and that the special use permit be granted with the recommended staff conditions. Mr. Odom seconded the motion.

All voting members voted in the affirmative. This resulted in a 5-0 unanimous vote to approve BA-SU-2099-08. The special use permit was granted with the staff conditions and as recommended in the motion. So ordered.

FINDINGS OF FACT

a. 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. b. 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. (5) The proposed development will be consistent with the Wake County Land Use Plan.
CONCLUSIONS OF LAW

The proposed development will not materially endanger the public health or safety; 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; The proposed development will not substantially injure the value of adjoining property, or is a public necessity; The proposed development will be in harmony with the area in which it is located; and The proposed development will be consistent with the Wake County Land Use Plan. IT IS THEREFORE ORDERED:

(1) The petitioner must submit a revised site plan that shows compliance with all applicable requirements. Including but not limited to the following: (a) impervious surface coverage and (b) bufferyard and screening requirements. (2) The petitioner must provide a letter from the Town of Wake Forest for the water/sewer service for the proposed daycare use to the Current Planning Section of the Planning Department.

(3) The petitioner must obtain a driveway permit from the NCDOT and provide a copy to the Current Planning Section of the Planning Department.

(4) The petitioner must obtain a building permit and appropriate inspections prior to the child care center use of the property.

(5) The petitioner must submit an as-built impervious survey prior to the issuance of a certificate of occupancy or completion of the building permit.

(6) The petitioner must submit plans to Environmental Services and receive stormwater and flood plain approval.

(7) 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.

(8) 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 Occupancy.

ITEM 5, NEW BUSINESS

Ms. Coats asked the board members to mark their calendars that the November meeting will take place on Monday, November 10, instead of November 11, which is Veterans Day. She also asked board members to save their materials for BA-SU-2097-08 for next month’s meeting, although staff will mail any updated reports and materials prior to the meeting.

ITEM 6, OLD BUSINESS

There was none.

Hearing no additional business, the meeting was adjourned at 10:41 A.M.