Loading...
HomeMy WebLinkAbout07Minutes14MINUTES HARNETT COUNTY BOARD OF ADJUSTMENT County Administration Building 102 East Front Street, Lillington, NC July 14, 2014 6:30 PM PUBLIC HEARING Board Members Present: Scott Tripp, Chairman; Rick Foster, Vice Chairman; Andrew Ruhland, Mary Jane Bartlett and Alternates Bob Doberstein. Planning Staff Present: Jay Sikes, Manger of Planning Services, Landon Chandler, Senior Planner, Matt Talbott, Planner I; Randy Baker, Senior Zoning Inspector and Teresa Byrd, Planner I /Recording Secretary. Chairman Scott Tripp gave the Invocation and Pledge of Allegiance All witnesses were sworn in. Conditional Use 1. BA- CU- 16 -14. Woodall, E Marshall & Harold B Woodall. A Singlewide Manufactured home in an RA -30 Zoning District; Black River Township; PIN # 0662 -36- 4167.000; NC 210 North. Matt Talbott gave the site analysis and Edward Marshall Woodall represented the application. Rick Foster asked could they have two mobile homes without subdividing the property and Matt Talbott stated yes. Rick Foster asked what year the home would be and Matt Talbott stated it would have to be a 1976 or newer home to be placed in Harnett County. Rick Foster asked if the home was approved, it would have to have vinyl, towing device covered and Matt Talbott stated yes. Robert Doberstein stated that he wanted to bring to the board's attention that he knew the applicant, but it would have no bearing on his decision. Chairman Scott Tripp asked if anyone objected to Mr. Doberstein continuing on the case and there was none. Chairman Scott Tripp asked if he could submit his application into the record and Marshall Woodall stated yes. Chairman Scott Tripp asked what he was asking of the board and Mr. Woodall stated to put a singlewide manufactured home on this property for his grandson to live in. Chairman Scott Tripp asked how it would impact the surrounding area and Mr. Woodall stated it would not adversely affect anyone. Mr. Woodall stated that the property is 1200 feet from Hwy 210 and in the middle of farm land. Mr. Woodall went on to say that it would be in harmony with the area and they would meet all conditions and specifications. Chairman Scott Tripp asked if he lived in the home place and Mr. Woodall stated no, that he rents that home. Chairman Scott Tripp asked if his grandson was going to look after the farm and Mr. Woodall stated yes. Chairman Scott Tripp asked once they are finished with the home would it be removed and Mr. Woodall stated yes. Andrew Ruhland asked if family owned land around this property and Mr. Woodall stated yes. Rick Foster asked what year the home was and Mr. Woodall stated he thought a 1962 model, but his grandson purchased it. Chairman Scott Tripp asked for clarity and Landon Chandler, Senior Planner stated that if it was earlier than a 1976, they can't move the home. Chairman Scott Tripp asked if they would get permits and Landon Chandler stated no. Rick Foster asked to describe the mobile and Seth Avrette was sworn in. Chairman Scott Tripp asked him the year and description of the home and Mr. Avrette stated 1979 model with vinyl siding. Rick Foster asked if he obtained a NC DOT permit and Mr. Avrette stated yes. Mary Jane Bartlett asked after his grandson was done with the home would he rent it and Mr. Woodall stated no future plans to rent out, but may let family use it. There was no opposition. Chairman Scott Tripp closed the public hearing and had board discussions. Chairman Tripp stated that it would not be out of place and had no issue. Rick Foster agreed and stated it was in the middle of a 250 acre farm and there was no opposition. Mr. Foster stated it blends with the rest of the community. Andrew Ruhland agreed and stated it was all family land. The checklist was completed and Rick Foster made a motion to approve with no conditions. Robert Doberstein seconded the motion and there was a unanimous vote to approve. Appeal 2. BA- AP- 01 -14. William Daniel Andrews; Daniel & Joyce Andrews; Drake Landing, LLC; Hector's Creek & Black River Townships; SR # 1441 (Chalybeate Springs Road). The applicants request an appeal of the Zoning Administrator's Notices of Violation dated April 30, 2014, which is related to the operation of an Outdoor Firing Range Facility without a conditional use permit. Jay Sikes gave the site analysis and history of the case. Chairman Scott Tripp asked if the two parcels came as two separate appeals and the board would be hearing them as one and Jays Sikes stated yes. Chairman Scott Tripp asked both parties to introduce themselves and give their opening statements. John Bryant introduced himself and Amber Ivie as Attorneys for Andrews's family. Mr. Bryant went on to say that the judge's order came down in March and the order founded it didn't make any difference what we were doing down here based on the matter of laws he decided. Mr. Bryant went on to say that the Andrews had a vested right in what he was doing now and did everything in good faith, while making all these applications. Mr. Bryant stated in the first order by Judge Tanya Wallace stated that Drake's Landing, LLC had been declared as bona fide farm, which would give them that exemption. After Mr. Baker declared that Drake Landing, LLC was classified under the agri- tourism label, Mr. Bryant stated that his client had spent a lot time, money and effort up until 2010, when the first complaint made. Mr. Bryant went on to say that Randy Baker, Senior Zoning Inspector issued a letter on January 18, 2011 and that Drake Landing was exempt from zoning regulation and they did not need a conditional use permit. Mr. Bryant stated this was giving them permission to continue and Mr. Andrews will tell you what he did to expand. Mr. Bryant went on to say that entitled them to operate the facility as a non - conforming use of the property and gave them vested rights. Mr. Bryant stated that Mr. Andrews will tell you that he has not expanded and as of matter decreased with the rifle ranges been taken out. Chairman Scott Tripp asked Attorney Dwight Snow if the burden of proof was with the county and Mr. Snow stated yes, due to the issuance of the violation letters that it would the county's burden. Janet Smith, Staff Attorney representing the Zoning Administrator. Ms. Smith stated that the Zoning Administrator had gotten complaints of firing and after an investigation of the site; it was found that Drake Landing, LLC was in violation of the ordinance, due to having firing ranges on the property. Ms. Smith stated the first order did state that they were agri- tourism, but went on to say that the judge's order that came down in March stated that the activity conducted at Drake's Landing was not agri- tourism and that is when they became in violation of the UDO. Ms. Smith stated that the question is if Drake Landing is in violation of the UDO and was the Zoning Administrator's action proper. Chairman Scott Tripp then was going to turn it over to Mr. Bryant, but Attorney Dwight Snow stated if the burden of proof lies with the county, then they should go first. Chairman Scott Tripp then turned the meeting over to Janet Smith, Attorney for Zoning Administrator. Janet Smith then called Randy Baker, Senior Zoning Inspector to the podium. Ms. Smith asked Mr. Baker why we were here and Mr. Baker stated an appeal to the notice of violation issued to Drake's Landing, LLC for failure to operate a shooting venue without a conditional use permit. Ms. Smith then asked what part of the ordinance was that from and Mr. Baker responded it would be in the land use regulation chart, under recreational facility, which is broken down into shooting ranges, which requires a conditional use permit in all zoning districts. Ms. Smith asked how the alleged violation was brought to his attention and Mr. Baker stated that the Planning Department had received multiple complaints, according to recent order issued from Judge Gilchrist. Mr. Baker stated that the complaints stated there was still shooting activity going on at Drake's Landing, LLC, in the Chalybeate Springs area. Mr. Baker stated that he did an investigation and began looking at the order and met with Mr. Andrews on site. Mr. Baker stated that the facility was open and there were people there engaging in shooting activity. Mr. Baker stated he continued the investigation and issued a notice of violation to both parties involved. Ms. Smith asked him to define a firing range and Mr. Baker stated a firing range is defined in our Unified Development Ordinance as any facility that engages in the discharge of a firearm, which engages a target. Ms. Smith asked him if it was agri- tourism and Mr. Baker stated that according to Judge Gilchrist order that the activities were not considered agri- tourism. Ms. Smith then asked if he had previously considered Drake Landing agri- tourism and Randy Baker stated yes, that it had been going on since 2005 -2006. Mr. Baker stated that going back and looking at notes of previous zoning inspectors and correspondence from the Institute of Government, as well as the Department of Agricultural, it was believed to be agri- tourism. Mr. Baker went on to say, with that they would have been exempt from our ordinance. Mr. Baker then read Judge Gilchrist order in what was considered to be agri- tourism and what was not. Ms. Smith then asked if the activities, that he just read from the judge's order was what was found at Drake Landing during his investigation and Mr. Baker stated yes. Ms. Smith asked if Drake Landing could come into compliance and Mr. Baker stated yes, through a conditional use permit and approval from the Harnett County Board of Adjustment. Ms. Smith asked if a conditional use permit application had been filed and Mr. Baker stated no, not to his knowledge. Ms. Smith asked if he was confident with his investigation and determination that Drake Landing was in violation of UDO and Mr. Baker stated yes, that according to the UDO and basing on the order by Judge Gilchrist specifying these as non -farm activities. Mr. Baker stated that non -farm activities are subject to zoning regulation and these non -farm activities would need a conditional use permit. Mr. Bryant then rebutted and asked some questions of Mr. Baker. Mr. Bryant asked if the order signed by Judge Gilchrist had the word agri- tourism in it at all and Mr. Baker stated no, not the word agri- tourism, but the order said that those activities were not agricultural related. Mr. Bryant asked if agri- tourism was allowed in the ordinance and Mr. Baker stated yes, if it was farm related activities. Mr. Bryant asked if in his first determination, that the activities as Drake Landing were considered agri- tourism and Mr. Baker stated yes. Janet Smith then objected to the line of questioning. Ms. Smith stated the reason they were here tonight was not to determine agri - tourism, but if they are in violation of the UDO. Chairman Tripp asked Mr. Bryant where he was going with it and Mr. Bryant stated to show what has been going on were the subject of his approval all along and the elements to show that it is a non- conforming use. Mr. Tripp stated that was a technicality and the judge stated it was not an agricultural use and that agri- tourism is an agri- cultural use. Mr. Bryant stated that he made the determination that it was and Mr. Tripp stated based on the information that he had at the time. Mr. Bryant stated that it is at the Court of Appeals and they would make that determination if it is or not. Mr. Tripp stated that a Superior Court Judge had made a determination and that was what he was relying on and Mr. Bryant stated he understood that. Mr. Tripp then asked Mr. Bryant to stay away from the agri- tourism label. Mr. Bryant asked that before he made his determination of agri- tourism, did he visit the site and Mr. Baker stated yes, multiple times. Mr. Bryant asked if improvements had been made to the site and Mr. Baker stated yes. Mr. Bryant asked if Mr. Andrews had complied with all that he asked of him and Mr. Baker stated yes. Mr. Bryant asked if he had gotten any building permits and Mr. Baker stated that during his investigation, he discovered two building permits, that Mr. Andrews had acquired. Mr. Bryant asked if he knew that Mr. Andrews no longer had the rifle range in operation or use and Mr. Baker stated yes. Mr. Bryant asked if Mr. Andrews had expanded his site and Mr. Baker stated since the judge's order, he had taken the skeet shooting portion from one area to another area, but had not added any buildings or requested any permits. Janet Smith asked how many building permits had Drake Landing been given and Mr. Baker stated two between the years of 2010 -2013. Janet Smith asked if Drake Landing was still in violation, whether they had expanded or not and Mr. Baker stated that according to the ordinance the activities at Drake Landing would require a conditional use permit. John Bryant then called William Daniel Andrews to podium. Mr. Bryant asked how long had he operated Drake Landing shooting facility and Mr. Andrews stated since 2005. Mr. Bryant asked what his reasoning was for opening this type of facility and Mr. Andrews stated to add value to the farm, because he was already doing hunts. Mr. Bryant asked that before he engaged in such activities, had he gone to the administrator and sought approval and Mr. Andrews stated that his wife had done extensive research for about a year and had talked with planning. Mr. Andrews stated they had made trips to different sites and facilities in and out of state. Mr. Bryant asked what type of facility was he looking at and Mr. Andrews's stated hunting preserve, sporting clay, outdoor shooting venue. Mr. Bryant asked if he had the blessing of the zoning administrator and Mr. Andrews stated yes. Mr. Bryant asked if he had spent money on the venue up until the judge's order and Mr. Andrews stated yes and described what he had spent money on. Mr. Bryant asked if he suspended the rifle range, after the judge's order and Mr. Andrews stated yes. Mr. Bryant asked if he operated everything else and Mr. Andrews stated yes. Mr. Bryant asked if he had expanded anything else after the judge's order and Mr. Andrews stated no. Mr. Bryant asked if the from the time he started his business until the judge's order came down, if he relied on what the county had told him and Mr. Andrews stated yes. Janet Smith then objected to the line of questioning and that Mr. Bryant was going to have a lot of questions as far as non - conformity and vested rights. Ms. Smith stated that the Board of Adjustment was an appellant board and that if he was arguing non - conformity and vested right for you to make that determination that it was not properly before you. Ms. Smith went on to say that determination would have to be made by a planning official and then appealed. Chairman Tripp stated that this board cannot determine vested rights and it has no weight in this appeal. Mr. Bryant stated in order to represent his client like he should he has to get into evidence that Mr. Andrews did rely on the administrator's decision and why he made the expansion's he made. Chairman Tripp asked Attorney Dwight Snow in reference to this matter. Mr. Snow stated that Mr. Bryant wanted to get it into evidence in case it is appealed and he has that right. However, Mr. Snow went on to say that it would be up to the board as to how much they would want to allow. Janet Smith then interjected with the GS 168.388 Duties of the Board of Adjustment on Appeals. Ms. Smith stated that the board would hear appeals, which was the determination of the zoning administrator Chairman Tripp then stated he would allow some of it as far as what he had spent based on Mr. Baker's determination, but to stay away from vested rights. Mr. Bryant asked Mr. Andrews if during the course of the operation, until Judge Gilchrist order, if he had made capital expenditures and Mr. Andrews stated yes, had to for safety reasons. Mr. Bryant asked what the total would be and Mr. Andrews stated excess of one million dollars. Mr. Bryant asked how many years of operation and Mr. Andrews stated nine years with shooting sports. Mr. Bryant asked after Judge Gilchrist order, did he file a notice of appeal and Mr. Andrews stated yes. Andrew Ruhland stated he was not worried about upgrades and Chairman Tripp stated it was upgrades that were made after Mr. Baker allowed under agri - tourism. Janet Smith asked some questions of William Daniel Andrews. Ms. Smith asked if he was aware of the first appeal hearing of determination and Mr. Andrews stated no, until his father had come by not long before the meeting was to start and Mr. Andrews stated he had just gotten off the tractor. Ms. Smith asked the address for Drake Landing, LLC and Mr. Andrews stated 3146 Chalybeate Springs Road, Fuquay- Varina. Ms. Smith asked if she could approach the witness and showed him a copy of an evidentiary hearing card sent to that address explaining the date and time of the meeting, by which Chairman Tripp labeled as Exhibit A. Ms. Smith then asked Mr. Andrews to read the card that was sent to him, in which he did. Ms. Smith asked if the clay shooting was the first thing built at Drake Landing and Mr. Andrews stated they added the hunting places, five stands and then the clay shooting. Ms. Smith asked if he was advised to get a conditional use permit and Mr. Andrews stated no. Ms. Smith then proceeded to Tab 3, which was labeled Exhibit B. Chairman Scott Tripp asked where she was going with this and Ms. Smith stated to show conditional use permit was discussed. Ms. Smith asked Mr. Andrews to identify and read the emails from Deen Taylor and Mr. Andrews first attorney. Mr. Bryant then stated that there was no conditional use permit needed until Judge Gilchrist order came down. Chairman Tripp stated he would allow her to show whether a conditional use application was every discussed. Ms. Smith then asked if he was familiar with the North Harnett Property Rights Association and Mr. Andrews stated he knew some of them. Ms. Smith asked Mr. Andrews if he was familiar with Kent Jeffries and with his disagreement that some of the activities at Drake Landing were not agri- tourism and Mr. Andrews stated he knew Mr. Jeffries. Ms. Smith then asked if he was aware that he was in disagreement and Mr. Andrews stated yes. Mr. Bryant asked Mr. Andrews if he recalled receiving Exhibit A and Mr. Andrews stated he was not sure, that he receives a lot of mail. Mr. Bryant asked if he received certified mail in reference to the first hearing and Mr. Andrews stated no, did not recall any. Chairman Scott Tripp asked Mr. Andrews if his investment was in the last four years and Mr. Andrews stated no. Chairman Tripp stated in the last three to four years this has been in the courts, why would you continue to invest not knowing the outcome and Mr. Andrews stated that one of the neighbors that had a grievance with his family and himself asked that they move their five stand off the highway. Mr. Andrews stated that he did that and put it in a safe location and had to make it safe. Chairman Tripp asked had he spent money outside of safety in the last three to four years and Mr. Andrews stated yes. Chairman Tripp stated that you are well aware that a conditional use permit would solve this issue and Mr. Andrews stated that he is in the process of getting his conditional use application finished. Chairman Tripp asked if he was planning on coming back before this board for a conditional use permit and Mr. Andrews stated yes and he had hired a planner to help. Chairman Tripp stated that there had been a lot of time spent getting around a loop hole in the use of agri- tourism, but a judge made that decision, you then stopped the rifle range and Mr. Andrews stated that is what he thought was the most of the problem. Chairman Tripp then stated at that point you were not in compliance with the other activities and Mr. Andrews stated he was not under that impression, until Mr. Baker approached him. Mr. Bryant stated that they felt the judge's order was wrong and they intend to prove it. Mr. Bryant stated that they will operate legally whatever that may be whether the judge's order is overturned or through a conditional use permit. Rick Foster asked had they obtained a stay to the judge's order and Mr. Bryant stated no, but he felt it was at a stay under the Court of Appeals. Mr. Bryant stated he felt the Court of Appeals will make a decision, but in the meantime they would file a conditional use permit as you requested. Janet Smith then talked about the appeal process and that a stay would have to be applied for. Chairman Scott Tripp stated that they can't discuss pending action, because that could take years and asked Mr. Bryant what made them think that they could still operate under the agri- tourism exemption when it was no longer there. Mr. Bryant stated they went to see Mr. Baker and told him they had no intension of operating unlawfully and they were waiting for the court to clarify for the whole state. Andrew Ruhland stated that as of right now it is not in compliance with what the county is doing right now and he had issues with that. The board continued to question the applicant and his attorney. Mr. Bryant argued that Drake Landing was operating under the agri- tourism label until the judge's order came down in March and then it was considered a non- conforming use. Mr. Bryant and board went back and forth on these issues. Chairman Scott Tripp called a recess at 8:30 p.m. Chairman Scott Tripp called the meeting back to order at 8:40 p.m. The board called Randy Baker back to podium for board questions. Rick Foster asked if Drake's Landing was given the same amount of time to come into compliance and Randy Baker then went through the standard process of a violation. Rick Foster asked if Drake's Landing was operating under the agri- tourism label prior to Judge Gilchrist order and Randy Baker stated yes. Rick Foster asked if at that time they were exempt from zoning and Mr. Baker stated yes. Mr. Foster then stated that after the judge's order came down that Drake Landing then came under the zoning jurisdiction and Mr. Baker stated yes. Andrew Ruhland asked how many complaints came in and Mr. Baker stated multiple complaints. The board continued to ask Mr. Baker questions in reference to his research and determination as to Drake Landing. Jenny Bob Culpepper was called by John Bryant. Chairman Tripp asked what she was there to offer to the board and Ms. Culpepper stated she was a planner by trade for 32 years. Ms. Culpepper then went on to speak about non - conforming uses. Mr. Bryant asked if she was hired to help with the conditional use permit for Drake Landing and Ms. Culpepper stated yes. The board then asked questions of Ms. Culpepper and after they were finished, Chairman Tripp closed the public hearing and had board discussions. Attorney Dwight Snow then stated that the board should allow for closing arguments. Chairman Tripp then reopened the public hearing and allowed brief closing statements. Janet Smith, Staff Attorney stated that the bottom line was that the vested rights and non- conforming use was not what was in front of the board. Ms. Smith stated it was the Notice of Violation being appealed, because of the judge's order and that Drake Landing was not exempt from zoning. John Bryant, Attorney for the Andrews family stated that prior to the judge's order being issued, the county stated that they were agri- tourism and they were lawful. Mr. Bryant went on to say that they are a non - conforming use with good faith and vested rights and that Drake's Landing was not in violation. Chairman Scott Tripp closed the public hearing and had board discussions. Chairman Tripp felt there was a lot of talk about non - conforming use and they should be required to get a conditional use permit. Rick Foster agreed and felt Mr. Baker followed the order when issuing the notice of violation. Chairman Scott Tripp then asked for a motion to uphold or overturn the zoning administrator's decision. Rick Foster made a motion that based on Judge Winston Gilchrist order declaring shooting ranges do not fall under the agri- tourism label and that he moved to uphold the zoning administrator's decision to issue the notice of violations. Andrew Ruhland seconded the motion and there was a unanimous vote. Janet Smith then stated that she had drafted the order to be signed and if all agreed it could be signed tonight. Chairman Scott Tripp then asked Ms. Smith to read the order. After reading the order, Chairman Tripp asked if there was any objection from anyone. All agreeing the chairman asked for a motion to accept or amend the order. Rick Foster made a motion to accept the order, with typos corrected. Andrew Ruhland seconded the motion and there was a unanimous vote. The minutes from the June 2014 meeting were presented for approval. Rick Foster made a motion to approve the minutes as written. Robert Doberstein seconded the motion and there was a unanimous vote. There was no old business and the meeting was adjourned at 9:45 p.m. tt Tripp, Ch an ick Foster, Vice Chairman ( —ite, Zu "14" & Tere Byrd, Recor ng Secretary a45a, f_ 0-1 Landon Chandler, R I Date '5 WI o PIaPi /yer