PH-NS ORD-1996-003 Proposed Zoning Ordinance Text Amendment Article 8.2 and Article 23

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Mr. Marvin Collins 055 Page 3 March 7 , 1995 the issue of public health and safety was that there was no evidence before the board on this issue. I recognize that all of this is perhaps legalistic to a fault . However, I think my analysis is correct and I wanted to share it with you if for no other reason than to test your quasi lawyering skills and set down in writing the basis for the ordinance change, together with an analysis that will help in its implementation when adopted. I have also enclosed a copy of a recent North Carolina Court of Appeals decision in the case of Vulcan Materials Company v. Guilford County Board of County Commissioners , 115 N.C.App. 319, 444 S .E . 2d 639 . That case approves the use of a special use permit standard in the Guilford County Zoning Ordinance which may be helpful to Orange County and which could be an addition to the third special use permit general standard in the Orange County Zoning Ordinance . That standard is that the special use be "in harmony with the area in which (it] is to be located. . . . 11 Id. , 444 S .E . 2d at 642 . As you can see by the analysis of the court in the enclosed opinion, that standard permitted a denial of an industrial use (rock quarry) when competent, material and substantial evidence was presented that the use contemplated was in fact not "in harmony" with the surrounding residential and agricultural land uses, notwithstanding the general conformity implicit in the fact that this special use is one permitted in the agricultural/residential zoning district . I commend this approach and have included language in the rewrite of Section 8 . 2 . 1 which will accomplish it for your consideration. Finally, I have reviewed again the Orange County Board of Adjustment' s Rules of Procedure and recommend the changes enclosed. These recommended changes arise out of one or more North Carolina Appellate Court decisions . The most important proposed change is to Section 3 (e) . One North Carolina Court of Appeals decision remanded a board of adjustment decision because, among other reasons , the chair failed to summarize the evidence presented at the special use permit hearing and provide the parties an opportunity to make objections or corrections before the board of adjustment made its decision. Cardwell v. Forsyth County Zoning Board of Adjustment, 88 N.C .App. 244 , 362 S .E .2d 843 ( 1987 ) , rev. denied 321 N.C. 742 ( 1988) . It seems to me that no matter how helpful such a practice is , it need not be the basis for overturning a board of adjustment decision. In that regard, there is no comparable requirement or practice by the Board of Commissioners in its special use permit procedures . Also, eliminating the requirement that the chair of the board of adjustment summarize evidence does not mean that the chair cannot do this if it is the practice.