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10OctoberBOA % tNTY• #0.. ca =22 , 2; MINUTES fit:i ;.,.rte 41b * 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 4 .1---/---' 14" A . Planning Dire' tor /1-/+t- c/ ' Z(4.1/ / I Date ** Cle lf 9 ;m ,a 1779 .,y.