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1779 MINUTES
RANDOLPH COUNTY BOARD OF ADJUSTMENT
September 27 , 1988
There was a meeting of the Randolph County Board of
Adjustment on Tuesday, September 27 , 1988 , at 7: 00 p.m. , in
Courtroom A, Randolph County Courthouse, 145 Worth Street,
Asheboro, North Carolina .
1 . Chairman Doyle Stout called to order the Randolph
County Board of Adjustment meeting at 7 :00 p.m.
2. Hal Johnson, Planning Director, called roll of the
members: Doyle Stout, Chairman, present; Lynden
Craven, Vice Chairman, present; Ray Farlow, pre-
sent; Charles Adams, present; Guy Troy, present;
Bill Dorsett, present; Arlie Culp, Alternate,
• present (substituting for resigned member Tal
Harrison) .
3 . Hal Johnson reviewed with the Board the case on the
agenda: Proposed Development - WOODFIELD ACRES
SUBDIVISION; Providence Township; SR 2114; 372 .78
acres. Herman K . McDowell & W. Reid Kearns -
Developers.
4. Hal Johnson asked for all persons wishing to
present testimony to the Board of Adjustment to
come forward for the Chairman, of the Board of
Adjustment, to administer the Oath. Johnson went
on to say that the North Carolina Supreme Court has
required that the Board base its decision only on
testimony given under Oath. Twelve persons came
forward.
Chairman Stout asked for everyone to raise their
right hand and said "Do you swear to tell the
truth, the whole truth, and nothing but the truth,
so help you, God" . The persons that gave testimony
stated I do.
5. Hal Johnson, Planning Director , gave a preliminary
summary of the case. Johnson stated that on June
7 , 1988, a Preliminary Subdivision Plat for the
Proposed Woodfield Acres Subdivision was reviewed
by the Randolph County Planning Board. The Pro-
posed Woodfield Acres is located in a County
Watershed and its divided by a perennial Creek .
These streams form the basis of the City of Randle-
man municipal water supply, and has a history of
running very dry during summer months. A large
portion of this proposed subdivision is also
located in a Federally designated Class A Flood
Zone.
Johnson stated that at the June 7 , 1988 meeting of
the Planning Board, the Board was presented with
the following information pertaining to potential
environmental problems relative to high density
development in this environmentally sensitive area:
A: The Randolph County Health Department,
sion of Environmental Health, wrote a letter
relative to a preliminary soils check . The
September 27 , 1988 Page 1
letter indicated that some lots bordering on
Polecat Creek may not be large enough to
install a septic tank system with an available
100% repair area, locate a well, and stay out
of the 100 year floodplain.
B: The City of Randleman, Phil Pendry, City
Manager, wrote a letter expressing its
concerns relative to its water supply that
could be adversely affected by large
development along Polecat Creek . The City
stated that Polecat Creek is a extremely small
but vital water supply and has a history
during dry weather of considerably reduced
water flow. The City stated that this could
create a potential health hazard for the
citizens of Randleman should the stream become
contaminated as a result of this large
development .
C: Over 100 area residents attended this meeting
to also express their concerns over the
environmental impact this proposed development
could have on the surrounding properties and
the City of Randleman. Citizens expressed
their concerns also that a large part of the
proposed subdivision lies on steeply sloped
land with a soil base that has been known to
• cause rapid runoff into Little Polecat Creek.
Johnson stated that as a result of these potential
safety concerns the Planning Board delayed action
on the proposed Preliminary Plat until a more
detailed review could be conducted after additional
information was provided. Johnson noted the
specific additional information that was required
(as required by Randolph County Ordinance) , were:
A: The Preliminary Plat as presented did not show
topography and contours at five feet intervals
or less. This is considered a critical
element in determining potential sloping and
drainage effect on major watersheds and
perennial streams.
B: Subdivisions located in watersheds and con-
taining a perennial stream shall provide a 50 '
buffer of vegetation on both sides of the
stream to retard water runoff and soil ero-
sion. Although this 50 ' buffer may be in-
cluded in calculating lot size, it is not to
be used for development purposes. This buffer
was not indicated on the Preliminary Plat.
C: The Preliminary Plat should be drawn to scale
of not less than 200 feet to the inch. This
would provide a more detailed plat so that
appropriate agencies could better address the
environmental concerns .
Johnson stated that he asked the developers to
show the Board the entire proposed subdivision
plans because so many times developers show
the Board only sections of the development,
and do not show the total plan for ultimate
subdivision development. Johnson
complimented the developers for showing the
Board the entire proposed subdivision plan
which enabled the Board to better review the
total scale of developments as it may relate
on this community.
Johnson stated that at the June meeting the County
Planning Board announced its intentions to study
methods of insuring environmental impact consider-
September 27 , 1988 Page 2
ations in considering major subdivisions . The
Planning Board subsequently made zoning and other
recommendations relative to subdivision development
to the Board of County Commissioners. The Board of
County Commissioners were presented with these
recommendations on August 1, 1988 .
Johnson stated that on or about August 22, 1988,
Phil Henley, Surveyor, presented to the County new
preliminary subdivision plats that meet the
requirements for Planning Board Preliminary Plat
review as previously referenced. The revised
Preliminary Subdivision plats were subsequently
forwarded to the Environmental Health Services
Division of the Randolph County Department of
Public Health for a detail review and comments .
Johnson stated that on September 6, 1988, the
Randolph County Board of Commissioners adopted new
Zoning Regulations that require rezoning to the
proper zoning district prior to major subdivision
development.
Johnson stated that on September 8, 1988, the
developers and Attorney, of the proposed subdi-
vision were notified by the Director of Planning &
Zoning that the proposed subdivision was not
located in the correct zoning district for major
subdivision development and would need to be
rezoned prior to any development . No preliminary
plat approval had been previously granted by the
County Planning Board.
Johnson stated that the developers have subse-
quently filed an appeal from this ruling to the
Board of Adjustment. Johnson added that the Appeal
stated in summary that the applicants have a
binding option to purchase the property and that
the proposed development as submitted to the
Planning Board be recognized as a pre-existing,
non-conforming use.
6. Chairman Stout asked for arguments in Favor of the
Request .
Adam W. Beck, Attorney for McDowell & Kearns,
stated for the record this is a hearing before the
Randolph County Board of Adjustment on a appeal by
petition against Hal Johnson for declining to
approve a preliminary plat. Beck stated that his
clients are not asking for a Variance but the
appeal be recognized as a pre-existing, non-
conforming use. Beck added for the record that
Mona Kirkland, Court Reporter (Superior Court of
Randolph County) , be designated. Beck asked W.
Reid Kearns to the stand.
Reid Kearns stated that he made various trips to
check out the property. Kearns said he and
McDowell had an option to purchase the property
that was valid at this time and had been extended
recently. Kearns stated that they had the property
surveyed (and preliminary plats drawn) and had the
personnel at the Health Department to check the
property for septic tank use. Kearns said he did
not realize the changes (in the Zoning/Subdivision
Regulations) were being considered until June 7,
1988 (after the preliminary plats had been submit-
ted) . . Kearns supplied the Board with an itemized
list of cost incurred and also a resume and various
bills. Kearns stated that at the time the prelimi-
nary plats were submitted the property was zoned
Residential Agricultural and this zoning district
did allow major mobile home subdivision develop-
ment. Kearns told the Board that Johnson stated at
September 27 , 1988 Page 3
the July 11, 1988 meeting that this subdivision met
all County requirements . Kearns said that once he
received Johnson ' s letter concerning additional
requirements, these requirements were met and
Johnson sent a letter dated September 4, 1988
advising so . Beck asked Kearns if he received a
letter from Johnson stating that the Commissioners
had rezoned this property and his answer was yes .
Beck asked Phil Henley, Surveyor , to come forward.
Henley stated that he assisted Kearns & McDowell in
preparing the documents submitted to the Planning
Department and in preparing the second set of
documents submitted.
Beck asked Ruffin R. Cole, Randolph County Public
Health Sanitarian, to come forward. Cole stated
that in his profession he evaluated soils
check wells, collected water samples, graded
restaurants, and inspected restaurants . Beck asked
Cole how long he had been in this type of work and
Cole answered 20 years (12 years for Randolph
County and 8 1/2 years for Davidson County) . Cole
stated that he conducted a preliminary soils
evaluation of the property and that there was
approximately 1 perk hole to each acre. Cole said
that in his evaluation he discovered sandy-loam,
saprolite, and sandy clay loams. Cole added that
over all the soils were approved for a preliminary
test, but that this was not considered official
until it was evaluated on an individual lot basis.
Cole told the Board that he was aware of the facts
that the property was in a watershed and a stream
was on the property, but in his professional
opinion he saw no immediate threat of a public
health hazard.
Hal Johnson told Beck that he had a letter from the
Public Health Director that appeared to contradict
some of this testimony and asked if he could read
the letter . Beck objected to the reading of the
letter because the Health Director was not present
and it was not swore testimony. Johnson delayed
the reading of this letter .
Joseph A. Hinton, Soil Scientist with the Depart-
ment of Public Health in Rockingham County, stated
that he was a private consultant and that he had
also evaluated this property. Hinton stated that
he made new borings (did not use the same holes
Cole did) for his evaluation. Hinton told the
Board he classified the three different types of
soils that he found as A (soil suitable to install
a convention system) , B (soil suitable to install
special types of systems {such as low pressure pipe
systems} ) , and C (soil unsuitable to install any
type of system) . Hinton presented the Board with
plats that showed where these areas were located.
Hinton stated that in his professional he did not
feel this development would affect Randleman's
Watershed. Arlie Culp asked Hinton if he had the
amount of acreage designated as areas A,B, or C.
Hinton answered by saying no but he had an arial
photo and a plat. Bill Dorsett asked Hinton if a
septic tank failed in this area would it pose a
threat and Hinton answered by saying yes.
Beck introduced the general application form (of
Kearns & McDowell) for the record.
7 . Chairman Stout asked for Arguments in Opposition of
the Request.
Joe Craig, Attorney (also adjoining property
owner) , represented the concerned citizens present
September 27 , 1988 Page 4
in opposition to this request. Beck objected to
Craig making testimony. Craig stated that this was
a quasi judicial Board and because it is he did not
interupt Beck by objecting to his testimony (he
also stated that the strict rule of evidence does
not necessarily apply because the Board is not made
of Attorneys and is a quasi judicial Board) and he
would appreciate the same courtesy. Craig stated
that North Carolina law treats this type of case as
a Variance (disputing Beck ' s statement of this not
being a Variance) . Craig stated that Johnson' s
letter to the adjoining property owners did not
state it was a full expert testimony hearing, and
they would have liked to have had the opportunity
to have hired experts to check the property. Beck
objected to these statements and stated that if he
did not object at the time the testimony was
presented he would waive that right. Craig asked
Johnson if he had stated (as Reid Kearns said) that
this proposed subdivision development met all the
County' s regulations, Johnson answered that he did
not recall making the statement. Craig stated
that he was at that meeting (that Kearns said
Johnson made the statement) and Johnson in fact did
not make that statement and Craig added that he
would testify to this if necessary. Craig also
asked for those citizens that attend the July 11
Commissioners meeting and also did not recall
Johnson making that statement to raise their hands.
A large number of persons raised their hands. At
this time Craig stated that the adjoining property
owners would request that this letter from the
Director of Public Health be read if it had
relavence to concerns of pubic health and safety
(Craig stated that the Board could decide what
evidence the would consider) . Beck objected on the
grounds that it is not swore testimony.
Guy Troy asked Johnson if it would be wrong for the
Board to hear the letter and he was answered no.
Troy made the motion, seconded by Charles Adams, to
hear the letter from the Public Health Director .
The motion passed unanimously. Johnson read the
letter, that in summary stated the concerns the
Health Director had of the potential major environ-
mental effect this development could have on
Randleman' s Watershed and the need for a comprehen-
sive evaluation that goes beyond the scope of this
agency, Randolph County Health Department. Refer-
ence attached letter .
Joe Craig asked to reserve time at the end of the
case.
Don Osborne, Chairman of Randolph County Board of
Education (for 8 years) , stated that the Board of
Education is concerned about residential develop-
ment in the County. The Schools that would be
serving this development are operating with a
capacity of 115. 29% in the elementary school and
101 .97% at the high school. The Board of Education
and/or the School System does not believe develop-
ment should be curbed but be developed at a more
orderly fashion so the school would have time to
fill the needs of the children. Osborne compli-
mented the Commissioners on the changes to help
control development in Randolph County. Beck
objected to testimony (irrelevant to case) .
Phil Pendry, City Manager of Randleman, stated that
on behalf of the City of Randleman, he wished to
express the concerns the City had on the effects
this development could have on the Randleman
Watershed (Polecat Creek) . Pendry stated that the
City of Randleman relied solely on Polecat Creek
September 27 , 1988 Page 5
for their water source. Two years ago Randleman
was forced to run pipe from the City of Asheboro
for the emergency situation of low water levels.
The Piedmont Triad Water Authority are working on
the future Randleman Lake Project but the completed
project would be in the year 2000 . Beck objected
to this testimony (not properly introduced) .
Josephine Clise, Adjoining property owner on SR
2113, stated that two years ago she experienced a
water shortage problem and again last year . Clise
stated that there are only two people living in her
residence and if this one home could have this
problem what would 200+ additional homes do for
water . Beck objected to testimony (not expert) .
W. E. Hockett, adjoining property owner on SR 2106,
stated that he has lived at this residence for 15
years and has been a property owner since 1967 .
Hockett said he had been the caretaker of the
property up until the last 2 years. Hockett said
he felt more evaluations should be done because a
large part of this acreage is underground rock .
Hockett stated that he was in the grading business
and he knew you could blast rock to put in roads,
but Hockett said you could not blast rock to put in
septic tank systems. Beck objected to testimony
(not expert) .
Joe Craig requested that the Board asked for a copy
of the. option on the property. Craig stated the
following arguments for denying the Variance:
1. The individuals do not own the property, the
have an option (no hardship has been shown) .
2 . The property has no physical change - (in the
last five years) .
3 . The applicants are presuming they have a right
to incur cost (for preliminary work) .
4. The Planning Board never ruled on the prelimi-
nary plat.
5. The applicants ' expenditures were preliminary
which are not to be considered as substantial
expenditures (no vested right) .
6 . The property should not be considered for an
existing use (there are no mobile homes, etc.
on the property) because there are only cattle
and fencing there.
Beck objected to all of Craig ' s testimony because
he felt it was not appropriate to this Board only
to the Planning Board. Craig stated that the
applicants have to prove practical difficulty or
hardship if they must comply with the new ordinance
(can make no reasonable return) . Craig said the
applicants have not proven this because the new
Zoning Ordinance does not prohibit mobile home
subdivision development, it only requires a new
procedure. Craig stated that the hardship would
have to be peculiar to this property and it is not,
all developers must comply. Craig said that the
Board must decide if this is in harmony of the
Randolph County Zoning/Subdivision Ordinance and
Craig contested that it is not because the Ordi-
nance discourages non-conforming uses. Craig
stated that in granting a Variance the case should
be keeping with the Public Health, Safety, and
Welfare. Craig said it would not be for the good
of the Community only the 2 developers. Craig
stated that in his opinion the applicants do not
September 27 , 1988 Page 6
have a vested right to be granted a Variance.
Adam Beck stated that Craig was overwhelmed by
Beck ' s expert witnesses. Beck stated that the
evidence has been clearly present. Beck said the
applicants are not complaining of the rezoning of
the property and presented the Board members
packets to read at their leisure. Beck told the
Board that no changes were considered until this
mobile home subdivision was submitted to the
Planning Board. At that time the Board froze the
application until the Commissioners could rezone
the property. Beck stated that Ruffin Cole and
Joseph Hinton testimony proved that this develop-
ment would poses no health problems. Guy Troy
asked Beck for a copy of the option to purchase the
property. Beck stated that he did not have the
option with him, but that he would submit a copy to
the Board.
8. Chairman Stout closed the hearing of any more
testimony and announced that a decision would be
made at the October 4, 1988 meeting, scheduled for
7 : 00 p.m. , in Courtroom B.
9 . Bill Dorsett made the motion, seconded by Lynden
Craven, to adjourn the meeting. The motion passed.
The meeting adjourned at 8:56 p.m.
RANDOLPH COUNTY
NORTH CAROLINA
544,1:44-vaerb---
Planning Director
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Date Secretary
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September 27 , 1988 Page 7