09SeptemberBOA No,„
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,s - - r" o MINUTES
• RANDOLPH COUNTY BOARD OF ADJUSTMENT
- 1779
September 16, 1987
There was a meeting of the Randolph County Board of Adjustment on
Wednesday, September 16, 1987, at 1:30 p.m. , in Courtroom B, Randolph County
Courthouse, Asheboro, North Carolina. •
1. Don Hancock, Chairman, called the meeting to order at 1 :30 p.m.
2. Hal Johnson, Planning Director, called roll of the members: Don Hancock,
Chairman, present; Doyle Stout, Vice Chairman, present; Ray Farlow, present;
Bud Osborne, absent; Tal Harrison, absent; Charles Adams, present; Guy Troy,
present; Lynden Craven, Alternate (in Bud Osborne's absence) , present; and
Arlie Culp, Alternate (in Tal Harrison's absence) , present.
3. Hal Johnson reviewed the Hearing before the Board of Adjustment and gave a
brief review of the meeting.
Mr. Johnson stated that this is a Public Hearing of the Randolph County
• Planning & Zoning Board of Adjustment. This Board is a 'quasi-judicial'
administrative body duly appointed by the Randolph County Board of
Commissioners. It is charged and entrusted with the duty of seeking out
the facts and applying County regulations and law to these facts.
This Board of Adjustment can receive whatever evidence the Board
considers pertinent in reaching its final conclusion of fact.
The North Carolina Supreme Court has required that a Board of
Adjustment base its decisions only on testimony given under Oath as
administered by the Chairman of the Board of Adjustment.
Anyone who expects to testify at this Hearing should come forward
and be sworn. If any witness should desire not to be sworn then your
statements will be considered as arguments rather than evidence.
A. Administering of Oath - Chairman, Don Hancock
Chairman Hancock asked for those persons wanting to testify at this
Hearing come to the front to be sworn in. He then asked these persons
to raise their right hand.
Chairman Hancock administered the Oath:
Do you sware or affirm that the evidence you are going to give before
the Board of Adjustment in this Hearing to be the truth, the whole truth,
and nothing but the truth so help you God.
The citizens taking the Oath followed with, I do. Chairman Hancock
asked that they be seated.
B. Hal Johnson gave a brief summary of the case as follows:
REQUEST FOR VARIANCE
Charles E. Stanley, Thomasville, North Carolina is requesting a
Variance from the Randolph County Zoning Ordinance that would allow the
construction and operation of a Mobile Home Park in Tabernacle Township;
SR 1404 (Fuller Mill Road) ; 16.936 acres; 50 Lots. Mr. Stanley is
asking that the Mobile Home Park be allowed to use 5,000 sq. ft. lots
and be located in a Residential-Agricultural Zoning District.
On February 3, 1986 the Randolph County Board of Commissioners enacted
a Moratorium on Mobile Home Park development. On May 5, 1986 the County
adopted Mobile Home Park rules and standards. On March 2, 1987 the Board
of Commissioners again imposed a Moratorium on Mobile Home Park development
pending enactment of Countywide Zoning Regulations. Countywide Zoning
began July 7, 1987.
No permits have been issued to Mr. Stanley by Randolph County. However,
Mr. Stanley has received a Permit for Authorization to Construct a wastewater
treatment facility from the North Carolina Department of Natural Resources
and Community Development (NRCD) . This authorization was granted May 20,
1987. Mr. Stanley originally submitted his application to the State
on November 6, 1984. Mr. Stanley originally requested an Authorization
to Construct on April 14, 1986, however the material he submitted was
insufficient to meet State requirements and returned. Mr. Stanley
revised his plans and again requested Authorization to Construct
January 21 , 1987.
On July 7, 1987, Mr. Stanley requested a Mobile Home Park permit
from Randolph County and was denied because of the Zoning Classification
of the area.
Hal Johnson explained to the Board where the property was located on
the Land Development Plan and also on the Watershed Map. A review of
the recently adopted County Land Development Plan indicated the area was
a low density residential agricultural area. It is also located in
a watershed. Mr. Johnson then showed the Board a video tape of the
general area the property in question was located.
Chairman Hancock explained to the Board that the Board of Adjustment
is the final authority on this case (it does not go before the Board of
Commissioners) and that if the case proceeds from this Board it proceeds
in a court of law. Rules require a 4/5 vote (or 6 out of the 7 members)
to vote for this case to grant a Variance.
Chairman Hancock then asked for any citizens desiring to provide
evidence for the Board to consider in Granting this Request to proceed.
4. Evidence in Favor of Granting the Request.
James Dellinger, Attorney representing Charles Stanley, from Stokes County,
made his opening statement. Our contentions in the case are:
1 . Under the General Statues the Board of Adjustment would be allowed
to grant a Variance in this case in that the property would lend
itself to no other development other than what Mr. Stanley has
asked for. That it would be an equitable case to grant the Variance
and an inequitable case not to grant the Variance.
2. We contend that he has a vested right to begin construction because
of permits, plans, and expendatures that were made prior to the
enactment of your zoning ordinance.
James Dellinger asked Hiram James Marziano to the podium. Mr. Marziano,
Professional Engineer, Engineer Degree, Licensed Engineer, 18 years
experience, presently employed with Black & Vetch, was confirmed by the
Board as being an expert in the field of Engineering. Mr. Marziano told
the Board that he had evaluated the property and that the topography varied
quite a bite across the site. He also said there was a limited amount of
development possibility because of the topography, and that no development
could be placed adjacent to the creek.
Mr. Marziano told the Board Mr. Stanley had requested him to draw up
the plans, but that because of his prior business commitments he did not
have the time to do so. Mr. Marziano advised Mr. Stanley to see Robert
Nance, Engineer of Burlington, North Carolina about drawing up the plans for
his project.
Mr. Dellinger asked Mr. Marziano to briefly explain what the State
required for the operation and construction of a treatment facility. Mr.
Marziano explained that two (2) permits where required: (1) Permit to
Discharge (into a stream) and (2) a permit of Authorization to Construct
(the facility) .
Mr. Marziano told the Board that the property would not have passed
an evaluation for individual septic tank permits for a mobile home park
because of the slope of the property and that you must have high density
to justify the high cost of a waste treatment plant.
Chairman Hancock asked the Board if they had any questions for Mr.
Marziano. Board member, Doyle Stout, asked if any construction was performed
on the property prior to the issuance of the premits. Mr. Marziano said
not that he was aware of. Board member, Ray Farlow, asked if the impact
of the density of this development for this particular area of the County
was considered or not. Mr. Marziano did not believe so.
Chairman Hancock asked if any citizens that had been sworn under Oath
had questions for Mr. Marziano.
Dumont Bunker, Engineer for the City of Asheboro, asked what type of
operating requirements had the State required for this plant. Mr. Marziano
stated the plant would be a Class 2 and would require a Level 2 operator.
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Vincent Bridges, Route 10, Asheboro, N.C. asked if the tanks located
on this site would be used in this system and Mr. Marziano answered they
would but that Mr. Stanley would need to make repairs (such as paint them,
build baffle wall, etc.) first.
Allen Holt, Route 10, Asheboro, N.C. , asked what was the purpose of
the Pitt and if Mr. Marziano had advised him in where to locate this pitt.
Mr. Marziano said he assumed that the pitt was dug for a level spot to
set the tanks, but that he did not advise Mr. Stanley on the location of
the Pitt. He also asked Marziano if the system had Cathotic Protection
and how much time an operator would need to be at this facility. He
answered that yes they had Cathotic Protection and that theoperator
would probably need to be on the site two (2) hours daily.
Linda Swafford, Route 10, Asheboro, N.C. , asked Marziano what the
classification of the river was and he answered that it was a Class A-2.
Jim McMillan, Attorney of Thomasville, N.C. , asked Mr. Marziano about the
amount of time he had spent on the property. Mr. Marziano explained that
he had spent approximately two (2) hours on the property which consisted
of three (3) visits. Mr. McMillan then asked Mr. Marziano if he was aware
the Pitt lies under the flood plain and Mr. Marziano answered yes, but
this pitt would not be used in the construction of the plant. Mr. McMillan
also asked if Marziano considered himself qualified to decide the use of
land from a County planning standpoint. Mr. Marziano replied that this
was not his job.
Nancy Younts, Route 10, Asheboro, N.C. , wanted to know if there was
any plans to help control odors from this plant into the community and
Marziano told her that the chlorine used in the operation would minimize
the odors.
Bruce Mosley, Route 10, Asheboro, N.C. , asked to be sworn in and
the Chairman did so. Mr. Mosley explained he was a licensed plumber and
he asked if the tanks had been inspected and if the tanks had been used
prior to them being moved to the property. Mr. Marziano said he did
not know if the tanks had been inspected, but the tanks were used and
had come from Archdale/Trinity Middle School. Mr. Mosley stated the
tanks had been used for approximately eight (8) years at the middle school.
Terry Younts, Route 10, Asheboro, N.C. , asked if the tanks had been
inspected for rust and Mr. Marziano stated he did not know. Mr. Younts
said one of the tanks had holes in to it. Mr. Stanley later said that
these holes were drilled to allow water in the tanks to run off.
James Dellinger asked Mr. Marziano to explain who regulated the plant
and he said the State did.
Chairman Hancock asked if there were any more questions for Mr. Marziano.
There were none so Chairman Hancock asked him to be seated.
James Dellinger asked Mr. Charles Stanley to step to the podium. Mr.
Stanley told the Board he had purchased the property four (4) or five (5)
years ago (with a house and approximately 17 acres of land) at public
auction for $30,000 for the development of a mobile home park.
James Dellinger asked the Board to except copies of two (2) deeds as
evidence. Exhibit #1.
Mr. Stanley told the Board prior to issuance of a permit for a waste
treatment plant the State had advertised in a newspaper and that in 1984
he obtained a permit for a 20,000 gallons per day system. He added that
prior to purchasing the tanks from the school he had an engineer to check
out the tanks.
James Dellinger asked Mr. Stanley to briefly explain to the Board his
investments in this project. Mr. Stanley stated that he bought the tanks
for $16,000 to $17,000, had a survey done which cost approximately $3,750,
hired crans to move the tanks, and also paid for the landscaping of the
school property that the tanks were removed from.
Mr. Stanley told the Board that the Health Department advised him
that a treatment facility was regulated by the State and that he would
not have to go through the County for any permits. He also stated that
he had spoken to Hal Johnson, Randolph County Director of Planning and
Zoning, in January of 1986 and was issued a letter stating there was
no zoning regulations at that time in Randolph County. Mr. Dellinger
gave a copy of this letter to the Board for Exhibit #2.
Mr. Dellinger asked Mr. Stanley to tekk the Board how much over all
this project has cost him prior to zoning regulations. Mr. Stanley
explained that it was some where in the range of $28,000 to $30,000
not including the purchase of the property or the three (3) years of
time he has in the project.
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Mr. Dellinger presented the Board with Mr. Stanley's Permit for
a treatment facility issued in April of 1985 for Exhibit 4#3.
Chairman Hancock asked the Board if they had any questions for Mr.
Stanley. Board member, Doyle Stout asked Mr. Stanley if he had any
knowledge of requirements from the State. Mr. Stanley stated that he
did not prior to digging the pitt on the property, but that he did
write a letter to the Department of Natural Resources and Community
Development (NRCD) and to Erosion Control making them aware of the
pitt.
Board member, Arlie Culp asked Mr. Stanley how much of this
property was in the flood zone and he answered approximately three
(3) to four (4) acres.
Board member, Guy Troy asked Mr. Stanley for a rough estimate of
the amount he received in return for the timber off the property and
Mr. Stanley stated some where around $2,000.
Board member, Charles Adams asked Mr. Stanley if he had a site plan
to show the exact location of where the treatment plant would be located
on the property. Mr. Stanley said yes and presented a plat of the
property with the plant spotted on it. James Dellinger asked the Board
to except the plat as Exhibit #4.
Chairman Hancock asked if any citizens that had been sworn under Oath
had questions for Mr. Stanley. Pam Thayer, Route 10, Asheboro, N.C. asked
Mr. Stanley which paper was the legal add in and Mr. Stanley said he
thought it was Greensboro, but that the add was run by the State and not
himself.
Allen Holt asked Mr. Stanley if an engineer advised him where to
place the tanks and he said no.
Jim McMillan asked Mr. Stanley what the property was valued for and
how often he visited the property. Mr. Stanley answered he did not
know how much the property was valued for and that he visited the property
occasionally.
Board member, Arlie Culp asked if the tanks would be underground, and
Mr. Stanley answered they would be particially.
James Dellinger asked Mr. Stanley to tell the Board who would be
operating the plant and he said Mr. Ed Lawrence from Thomasville. Mr.
Dellinger then present the Board with Exhibit #5, plans for the treatment
facility by Robert Nance. Mr. Dellinger advised the Board that this
concluded his initial presentation but he requested the right to make
a closing summary.
Chairman Hancock asked if there were any more questions for Mr. Stanley
There where none so he asked Mr. Stanley to be seated.
Chairman Hancock then asked, for any citizens desiring to provide
evidence for the Board to consider in denieing the Variance to come forward.
5. Evidence in Opposition of the Request.
Allen Holt, Route 10, Asheboro, N.C. , explained he served on the City
Planning Board for 22 years and on the City Council for two (2) years. He
then asked to be considered an expert witness.
Allen Holt asked Planning Director, Hal Johnson, on what basis the
case was being considered. Mr. Johnson said the County zoned the property
July 7, 1987 Residential-Agricultural and this zoning district does not
allow a Mobile Home Park. The issue before the Board of Adjustment must
ultimately be that of what, if any, "Vested rights" Mr. Stanley has in the
proposed development. Mr. Holt told the Board he realized that by granting
a Variance a hardship must be proven an it had not. Mr. Holt told the
Board that he believed that by granting this Variance it would cause
hardship on the surrounding neighbors. Mr. Holt stated that Mr. Stanley
would not be vested to the point of substantial financial hurt and that
zoning laws were not written to guarentee a developer a profit so this
was not the Board's problem. He also said he believed zoning was to protect
citizens under the laws and General Statue (their health, well being, and
safety) . Mr. Holt also said that on the map attached to the orignal permit
issued by the North Carolina Department of Natural Resources and Community
Development (NRCD) the location of the property was incorrect and the
latitude and longitude was also incorrect.
Linda Swafford, Fuller Mill Road, said that she became aware of the
construction on the property in 1985. She contacted NRCD in Raleigh
and that she was told that he did not have a permit to construct and
that he would have to stop immediately or be fined. She presented a
letter to the Board from Mary Joan Pugh, NRCD, that stated that Mr. Stanley
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would not be able to use the tanks he had bought with his permit. Ms.
Swafford said she did not feel Mr. Stanley had a vested right if the
tanks could not be used. She also shared her concerns with the traffic
that would be added to this dirt road, density problems, property values,
school population, and the one lane bridge that was constructed in 1907
that would be used.
�•' James Dellinger asked Ms. Swafford when she first became aware of the
construction of a mobile home park on this property and she stated 1985.
Ms. Swafford said she would be opposed to any type of high density
development in this area.
James Dellinger asked that the document sent to Hal Johnson from
NRCD that was received by Mr. Johnson on September 15, 1987 be considered
as evidence. Exhibit #6.
Mr. Jim McMillan, Davidson County, explained that he felt Mr. Stanley
had not offered any testimony to prove this was a perticularly unique case
or hardship.
Nancy Younts, Route 10, Asheboro, N.C. , presented a letter to the Board
from Mr. Mouberry with NRCD dated January 17, 1986 on concerns of the
classification of the stream and concerns of construction of the facility.
Ms. Younts expressed her concerns with the high density and the school
population problem, but that she had no objection to mobile homes.
Pam Thayer, Route 10, Asheboro, N.C. , expressed her concerns of the
septic tank draining into the river, odor problems, and the added traffic
to the road.
Vincent Bridges, Route 10, Asheboro, N.C. , explained to the Board
his concerns for the wild animals habitat and that zoning shows no need
for this high density in this area.
Dumont Bunker, Asheboro City Engineer, spoke in opposition because of
the potential health hazard this would cause for Lake Reese (Asheboro's
water supply) . He also told the Board that there was no discharge into
this river at this time and that the City of Archdale had been turned
down a permit to discharge because Asheboro had requested this stream to
be reclassified. The Board asked Mr. Bunker why he felt this would be
a potential hazard and he explained this opinion was based on the failure
rate of these types of systems.
Allen Holt asked the Board to delay their decision until the permit
with Authorization to Construct could be obtained to see if the location
of the property had been corrected.
6. Chairman Hancock recognized James Dellinger for his closing summary of
evidence.
Mr. Dellinger advised the Board that they had testimony from an
expert in the field of Engineering stating his opinion that the property
would not perk for individual septic tanks (for this project) and that a
package treatment plant would make it necessary for the project to contain
high density. Mr. Stanley acted in good faith and the project should not
be prohibited. Most of the citizens addressing the Board of Adjustment
admitted that they had been aware of Mr. Stanley's plans for a mobile home
park as early as 1985. Mr. Stanley has invested substantial amounts of
money in planning for this project and it is his contention that a vested
right exists that would allow him to complete the project as planned.
7. Chairman Don Hancock made a brief summary of the evidence presented to the
Board of Adjustment:
Chairman Hancock explained that the majority of this meeting was
spent discussing the package treatment facility, but that this was not
the issue, the issue was if Mr. Stanley had a vested right to develop
this park. Testimony has shown that the treatment facility does not
fall under the County's jurisdiction, that the State regulates this type
of facility. Mr. Stanley's attorney contends that Mr. Stanley has had
an ongoing vested right in this case. However, evidence presented
indicates that Mr. Stanley was aware in January 1986 that the County
was in the process of developing mobile home park and possible zoning
regulations that would impact on his project. Mr. Stanley continued
seeking State approval for the sewage treatment plant and was given his
final permit in May of 1987. Chairman Hancock recommended the Board's
decision be delayed until the Planning Department could recieve a copy
of Mr. Stanley's permit of Authorization to Construct. Chairman Hancock
also recommended that the Board of Adjustment review the information
presented and make a final decision at the next regularly scheduled
meeting on October 7, 1987, at 1 :30 p.m.
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Board member, Doyle Stout made the motion to approve the Chairman's
recommendation, seconded by Board member, Ray Farlow. The motion was
approved unanimously.
8. The meeting adjourned at 4: 15 p.m.
RANDOLPH COUNTY
NORTH CAROLINA
HAL JOHNSON, D RECTOR
PLANNING & ZONING
J /1Pg7C � Zt' Z 0L
DATE S RETARY
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7779
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