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MINUTES OF THE ORANGE COUNTY ~.~J BDAR17 OF COMMISSIONERS October 16, 1973 The Board of Commissioners of Drange County met in regular session on Tuesday, October 16, 1973, in the biatriat Cpurtroom of the County Courthouse in Hillsborough. Members Pr©aent: Chairman C. Norman Walker and Commissioners Henry 5, Walker, Flora Garrett, Richard E. Whitted and Melvin Whitfield. Members Absent: None Chairman Walker called upon Honorable A. B, Coleman, representing University Builders, to continue discussion of the County~s action in revocation of the building permit issued for lot number 22 of Heritage Hills Development. Mr. Coleman first filed with Chairman Walker a statement from Robert Ayers, Registered Land Surve or, that showed the area of lot #22 of Heritage Hills Development to be 13 ,26.30 square feet. Mr. Coleman further stated that Mr. Ayers had surveyed the lot, #23 now owned by Mr. Hector Ferias, one of the complaintants against University Builders, in July of 1971. He found this lot to contain 13,918 square feet. This lot was surveyed two months later by Mr. George Love, Registered Land Surveyor. Mr. Loves survey indicated lot ~23 to have in excess of 15,000 square feet. Mr. Coleman further stated that this disparity in size was asused b a ten foot variation in the length of the common boundary between Lots #22 and ~23. No evidence has been produced to indicate which if either of these measurements is correct. Obviously there was considerable difference of opinion between two reputable surveyors as to the area of these two lots. It is equally obvious that if the shorter of the two measurements is correct then there would be a material reduction in the size of many other lots in this particular subdivision. It is unreasonable to assume that the structures on those lots that might become undersized would have to be removed merely because the lots are now found'to be smaller than the minimum size prescribed in the County Zoning Ordinance. It is likewise equally unreasonable to say that University Builders cannot construct on a lot that is approximately the same size as the neighboring lots. Mr. Coleman further stated that the fee title in the atreete of this subdivision was still in the name of Roberts Construction Company and they had in feat conveyed an area of approximately 5,000 square feet to University Builders. Tor. Coleman continued on by niting a North Carolina Supreme Court case which stated that the owner of land under easement could freely convey the fee title to this property. Bohn Woodson, Attorney representing Mr. Clark and Mr•. Ferias, presented an affidavit from George Love, Registered Surveyor, stating that lot #23 belonging to Mr. Ferias contained more than 15,000 square feet. T2r. Woodson continued by saying in his opinion the adoptions of the County zoning Ordinance did not intend for the area of land under publio streets to be considered as part of the overall area of slot. He supports this contention by citing the definition of a lot propounded in the Zoning Ordinance itself. This definition among other things states that a lot is a parcel of land intended to be oaeupied by a house. Obviously no area of a street was intended to be oaeupied by a house. Chairman Norman Walker then called upon the County Attorney for his opinion of this matter. Mr. Cheshire stated that in hie opinior_ the Roberts Construction Company could convey the fee in these streets to University Builders if it so desired. Thus, University Builders did have or might obtain the fee in this laud if it so desired. Re was not prepared to oomment on what effect this acquisition would have on a courts opinion of the lot size issue. 7iowever, he did observe that past courts have held that matters affecting property rights in law must be construed strictly. Since our Zoning Ordinance did not specifically prohibit inclusion of an area under easement in the calculation of lot size the court might well state that this area must be included. Commissioner Flora Garrett reported that she had investigated the practices of Durham County and the Town of Chapel Hill in this area. Neither of these agencies consider the land in streets as part of the area of a lot. - Commissioner Richard Whitted stated it seems that University Builders seemed determined to build an this lot even in violation of a ruling of the County Board of Adjustments. Since the County had adopted this ordinance and since the Board of Adjustments had issued its ruling denying s variance it seemed unreasonable to him for the County not to enforce the ruling of its appointed Board. The action of not enforcing this ruling would put the legal burden of enforcing the County Zoning Ordinance upon private aitizena. This he did not believe was proper. Commissioner Whitted asked the County Attorney if the Zoning Ordinance prohibited the County from using the street area as part of the area of a lot? Mr. Cheshire replied it did not prohibit this.