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Agenda - 08-03-1995 - VIII-K
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Agenda - 08-03-1995 - VIII-K
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12/11/2014 11:11:29 AM
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BOCC
Date
8/3/1995
Meeting Type
Regular Meeting
Document Type
Agenda
Agenda Item
VIII-K
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Minutes - 19950803
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\Board of County Commissioners\Minutes - Approved\1990's\1995
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I <br /> Mr. Marvin Collins 7 <br /> Page 3 <br /> March 7, 1995 <br /> the issue of public health and safety was that there was no <br /> evidence before the board on this issue. <br /> I recognize that all of this is perhaps legalistic to a <br /> fault. However, I think my analysis is correct and I wanted to <br /> share it with you. if for no other reason than to test your quasi <br /> lawyering skills and set down in writing the basis for the <br /> ordinance change, together with an analysis that will help in its <br /> implementation when adopted. <br /> I have also enclosed a copy of a recent North 'Carolina Court <br /> of Appeals decision in the case of Vulcan Materials Company v. <br /> Guilford County Board of County Commissioners, 115 N.C.App. 319, <br /> 444 S.E.2d 639 . That case approves the use of a special use <br /> permit standard in the Guilford County Zoning Ordinance which may <br /> be helpful to Orange County and which could be an addition to the <br /> third special use permit general standard in the Orange County <br /> Zoning Ordinance. That standard is that the special use be "in <br /> harmony with the area in which (it] is to be located. . . . " Id. , <br /> 444 S.E.2d at 642. As you can see by the analysis of the court <br /> in the enclosed opinion, that standard permitted a denial of an <br /> industrial use (rock quarry) when competent, material and <br /> substantial evidence was presented that the use contemplated was <br /> in fact not "in harmony" with the surrounding residential and <br /> Agricultural land uses, notwithstanding the general conformity <br /> implicit in the fact that this special use is one permitted in <br /> the agricultural/residential zoning district. I commend this <br /> approach and have included language in the rewrite of Section <br /> 8.2.1 which will accomplish it for your consideration. <br /> Finally, I .have reviewed again the Orange County Board of <br /> Adjustment's Rules of Procedure and recommend the changes <br /> enclosed. These recommended changes arise out of one or more <br /> North Carolina Appellate Court decisions. The most important <br /> proposed change is to Section 3(e) . One North Carolina .Court of <br /> Appeals decision remanded a board of adjustment decision because, <br /> among other reasons, the chair failed to summarize the evidence <br /> presented at the special use permit hearing and provide the <br /> parties an opportunity to make objections or corrections before <br /> the board of adjustment made its decision. Cardwell v. Forsyth <br /> County Zoning Board of Adjustment, 88 N.C.App. 244, 362 S.E.2d <br /> 843 (1987) , rev. denied 321 N.C. 742 (1988) . It seems to me that <br /> no matter how helpful such a practice is, it need not be the <br /> basis for overturning a board of adjustment decision. In that <br /> regard, there is no comparable requirement or practice by the <br /> Board of Commissioners in its special use permit procedures. <br /> Also, eliminating the requirement that the chair of the board of <br /> adjustment summarize evidence does not mean that the chair cannot <br /> do this if it is the practice. <br />
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