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* RANDOLPH COUNTY ZONING BOARD OF ADJUSTMENT
; 7.779
October 8, 1996
There was a meeting held at 6: 30 p.m. , on Tuesday,
October 8, 1996, of the Randolph County Zoning Board of
Adjustment in the Commissioners' Meeting Room, Randolph
County Office Building, 725 McDowell Road, Asheboro, North
Carolina.
1. Chairperson Aweilda Williams Called the meeting to Order.
2 . Hal Johnson, Planning Director, called roll of the
members: Aweilda Williams , Chairperson, present;
Maxton McDowell, Vice Chairman, present; Bill Dorsett,
present; Jim Routh, present; Lynden Craven, present;
Phil Brower, present; and Charles Adams, absent.
3. Maxton McDowell made the motion, seconded by Lynden
Craven, to approve the Minutes of the September 10 ,
1996 Randolph County Zoning Board of Adjustment
Meeting. The motion passed.
4. Chairperson Williams performed the Swearing in of the
Witnesses. 5 citizens took this Oath.
5. VARIANCE REQUEST:
THOMAS E. TERRELL, JR. , Wyatt Early Harris & Wheeler,
L.L.P. , High Point, North Carolina, is appealing to the
Board of Adjustment a decision of the Planning Director
that the current County zoning ordinance does not
regulate land application of remedial contaminated
petroleum soil sites.
Johnson gave a brief review of the case before the
Board. Johnson said that Mr. Terrell is appealing to
the Board of Adjustment the administrative decision of
the Planning Director. Johnson said that it is his
opinion that the Randolph County Zoning Ordinance does
not currently regulate the location of Remedial
Petroleum Soil Storage Sites. In the early 1990 ' s , the
State of North Carolina, through its Division of
Environmental Management, began extensive regulation of
the above referenced process. Land application of
contaminated petroleum soils was determined by the
State to be a desired method of treatment of soils that
had been contaminated by underground storage tanks .
The state developed comprehensive standards for such
treatment. The State issues permits and inspects the
property to insure compliance with all applicable state
and federal regulations . Johnson said that the appeal
before the Board of Adjustment is not on the merits of
contaminated petroleum soil storage sites. Johnson
said that the appeal is on his decision that the
Randolph County Zoning Ordinance does not currently
regulate such activities.
**Arguments for Granting this Request
Mr. Thomas Terrell introduced himself as an attorney
representing Bill & Alice Ball, property
owners/residents that adjoin the site in question.
Terrell gave his address as 258 South Main Street, High
Point. Terrell said that his question was not if the
ordinance regulated the use but whether or not the use
is allowed. Terrell said that he contends that if you
list what is permitted then those are the only uses
permitted. Terrell introduced a witness (Terrell ' s
description) Barry Nelson, P.G. , Principal
Hydrogeologist, employed with Geoscience and
Technology, P.A. , Winston-Salem, North Carolina and
provided the Board with a copy of his resume. Terrell
questioned Nelson. Nelson said that he has worked with
petroleum contaminated sites in North Carolina since
1985. Nelson described these sites as land farms for
petroleum contaminated soils and said there are three
different types of land farms : institutional land
farm, a one time treatment site, and a commercial
facility. The commercial facility is where the soil is
brought to the site and spread in layers and nutrients
are spread to consume the contaminants . This soil
comes from gas station sites, bulk facility sites, just
any where you store petroleum products . Nelson said
that these sites have very defined restrictions for the
sale of such properties that have been used for this
type of storage. Nelson said he has been to this site
and reviewed the files in Winston-Salem DEHNR Office
concerning this parcel.
John Megerian, attorney representing the Cook' s,
objected - stating that he could not see where this
information relates to this appeal. Megerian said that
this site does not manufacture chemicals and is
definitely not a sanitary landfill .
Chairperson Williams allowed Terrell to continue.
Terrell said that this property is within a Residential
Agricultural (RA) Zoning District and read the the
purpose for this district:
"The purpose of this district is to provide a place for
agricultural and very low density residential uses .
Land uses in this district are primarily agrarian and
rural. Requests for rezoning to a higher intensity use
district must demonstrate that the proposed development
would be in accordance with the Randolph County Land
Development Plan. "
Terrell said that this use is industrial in nature and
is not an agrarian process and said that there is a
definition given to use of a "bona fide farm" from the
North Carolina General Statutes and that is:
"Bona fide farm purposes include the production and
activities relating or incidental to the production of
crops , fruits , vegetables , ornamental and flowering
plants, dairy, livestock, poultry, and all other forms
of agricultural products having a domestic or foreign
market. "
Terrell said that this is not an agrarian process nor a
low density residential use, that no one lives here.
Terrell said that this is a waste treatment process in
which petroleum contaminated soil is spread onto native
soils with proper chemical balances . Terrell said that
this process is heavily regulated by the State to
insure that contamination does not reach groundwater
supplies .
Terrell spoke of the "Table of Permitted Uses" located
in the County Zoning Ordinance . Terrell said that
those uses which are permitted in an RA district are so
stated by an "X" and there is no "X" under any category
which would remotely resemble the process that is
taking place on this site. Terrell said that the
prohibition of a certain use is indicated by a blank
space. Terrell said that activities involving removal
and storage of waste, storage of commercial goods ,
chemical manufacturing, junk yards, - all second or
third cousins to this use - are not permitted within an
RA zoning district. Terrell told the Board that the
when a use is not listed at all it should be resolved
as more strict and you should not allow it. Terrell
presented case law that he felt was relevant to this
case. Terrell gave the Board a copy of the case J.C.
Moore, d/b/a Kinston Fish and Produce vs. Board of
Adjustment for City of Kinston. Terrell said that in
this case the court ruled that under zoning ordinance
listing permitted uses, phrase "stores and shops" did
not include flea markets and thus flea markets were not
permitted use in district.
Terrell said he is asking the Board to over-turn
Johnson' s decision that this use is not regulated by
Randolph County.
**Arguments Against Granting this Request
Planning Director Johnson said that he would like to
place on record his reason for his decision in this
fairly unique issue. Johnson said there are many
activities permitted and regulated by the State that
local county governments do not regulate through zoning
ordinances . Johnson said to determine if his decision
was consistent with other county governments in North
Carolina, he spoke with Ginger Booker, Director of
Legal Services, Piedmont Triad Council of Governments,
and was advised that no county in the Piedmont
currently regulates this activity through zoning.
Johnson said that inquires were made with David Owens ,
Assistant Director, N.C. Institute of Government,
Chapel Hill and Owens stated that the majority of
counties in North Carolina that have zoning have chosen
not to regulate this activity. Owens told Johnson that
it is generally felt that state regulations on this
activity are comprehensive and based on extensive
research. Johnson said that Mr. Terrell has cited
"Incompatibility with Residential Agricultural
Districts" as one of his basis for appeal. Johnson
said that this term is a common county zoning ordinance
district used by most counties in North Carolina. The
term is used to define generally open agrarian land
that is primarily rural and low density. Johnson said
that remedial petroleum soil sites , by their very
nature, involve open land and soil tilling. This
district is designed to accommodate many activities
involving open use of soil. Johnson said that
activities that are common in these districts and not
regulated by county zoning include sedimentation and
erosion control regulations , timbering, sludge fields .
Johnson said that all these activities are regulated
and permitted by the appropriate state agency.
Johnson said that Mr. Terrell notes in his appeal that
there is a blank space under RA districts for all
activities which he notes as industrial or commercial
in nature and he also notes that sanitary landfills in
RA districts must have a Special Use Permit. Johnson
said that it is his opinion that the remediation of
contaminated petroleum soil is an activity that does
not fall under these areas.
Johnson said that Mr. Terrell also notes Article XIII ,
Section 5, of the Zoning Ordinance, stating that this
Article provides there be a bias toward restriction of
use as opposed to leniency as to use. Johnson said
that this Article is designed to give general guidance
to Planning and Zoning officials in making
interpretations of zoning rules . It is used primarily
when questions arise pertaining to dimensional
restrictions . The ordinance specifically states that
when interpreting and applying the provisions of the
zoning ordinance, standards should be held to the
minimum requirements to promote the public health and
safety.
Johnson said that it is his opinion, as the Planning
Director, that the current Randolph County Zoning
Ordinance does not regulate the remediation of
contaminated petroleum soil sites. Johnson added
neither does this activity fall within any current land
use classification addressed by the Ordinance. If the
County were to regulate this activity through a Special
Use Permit or a Conditional Use Zoning, the ordinance
itself must set out the conditions under which the
Special Use Permit is allowed. Johnson said the County
is not allowed to make a case by case discretionary
review of each project to determine if it requires a
Special Use Permit. The ordinance itself must spell
out the standards for obtaining the Special Use Permit.
Johnson said that the general basis of his decision was
if a land activity is determined by the state to be
necessary to promote the public health and safety, if
that activity is regulated by the state after
comprehensive research and standards , if that activity
is inspected and permitted by the state, if the status
of the activity is not addressed by local zoning codes ,
then I believe that the proper decision is to allow the
property owner use of their land in a manner that is
lawful and permitted by the State of North Carolina.
John Megerian, attorney representing the Cook' s,
presented the Board with four (4) photographs of the
Cook' s property where the soil has been applied. These
pictures showed the site with grass growing and horses
grazing on this pastured site . Megerian said that this
pastured site is located next to the Cook' s residence.
Megerian said that the site looks agrarian and is not
as the specialist testified saying it is a chemical
manufacturing site . Megerian said the property is used
as a residential site with the Cook' s home located
here. Megerian said this is a farm and there are no
hazardous waste (dangerous chemicals) put on this farm.
Megerian said that the appeal applicants had exhausted
all their remedies before the State and were now making
this appeal as a final resort. The State has
determined this site to be perfectly safe. Megerian
said this type use doesn' t need to be seen located on
the "table of permitted uses" within the Ordinance
because it is permitted in this rural
residential/agricultural type setting. Megerian said
the law is clear that a zoning ordinance should be
construed in the favor of the land owner. Megerian
said the land owner should be allowed to use their
property. Megerian said this type use is all permitted
through the State and that he has found no case law as
Terrell feels he has, that is even close to the case
here before this Board. Megerian said that he fails to
see how a case concerning "flea markets" is relevant to
this case. Megerian described this activity as
"trucked in" soil that was spread over a section of
land, this area grows things on it and feeds horses
which is an agricultural use. Megerian said that the
Cooks have built their home here and this is a
residential use.
Terrell asked Megerian if there was grass growing on
this site. Megerian said yes, that he has visited the
site and this is a pastured site for horses . Terrell
asked Megerian if he realized that this would be in
violation of the regulations on the Cooks ' permit.
Megerian informed Terrell that he is not a soil
scientist, nor was he, and that these questions he was
asking are questions for the appropriate State
regulatory agencies and not before this Board and that
this has no relevance for the issue at hand. Megerian
informed the Board that the Cooks were present for any
questions they may have .
Chairperson Williams asked if there was anyone else
present that would like to speak.
Doug Hughes asked to speak to the Board. Williams
asked Hughes if he had been sworn in. Hughes said no,
so Williams explained that he would need to be sworn in
for the Board to hear his testimony. Williams
administered to Oath to Hughes . Hughes said that he
had friends that worked in the chemistry field and that
he had looked into this type land use and he was
advised that if the use was permitted through the State
that it would be perfectly safe. Hughes said that he
has had his land appraised recently and that this use
(on an adjoining piece of land) had no effect on his
property value.
Michael Cook, property owner, 6295 Post Road, said that
he had met with the State officials last week and they
were very please with the status of the property. Cook
said that the permit states that the property must be
tilled after 1 month, 2 months , and again at 6 months
if needed. Cook said that the State found the soil to
be clean within 2 months and any more tilling would not
be necessary.
**Board Discussion: Conclusions Based on Findings of
Fact
Routh said that this Board has been down this road
before and discussed this issue in earlier meetings and
he felt the property owner should be allowed use of
their property.
Dorsett said that this Board is not appointed to
disallow use of land, only to control land use.
Dorsett said that he has been dealing with zoning since
it' s countywide adoption and that he agreed with
Johnson' s decision, the ordinance doesn't say anything
about disallow use of property.
**Order of the Board of Adjustment
Dorsett made the motion to deny this appeal. Craven
seconded this motion and the motion passed unanimously.
6 . Johnson informed Terrell that he would receive the
Order of the Board in written notice and he would have
thirty (30) days after that date to file with the
County Superior Court if his clients wish to appeal
this decision. Terrell requested this notice and said
that he was doing so because General Statutes require
him to request this notice.
7 . The meeting adjourned.
NORTH CAROLINA
RANDOLPH COUNTY
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Planning Dire' tor
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