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Approved 1/11/2016
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<br />OC Board of Adjustment – 11/9/15 Page 42 of 48
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<br />addressed. 1
<br /> 2 Michael Harvey: Because the NCDOT did not respond to our request. 3
<br /> 4 Barry Katz: It seems to me that this kind of intermittent traffic is not something that the DOT is going to make a traffic finding on 5
<br />that would materially affect this. The question of the traffic has to do with, if it has anything to do with the quality of the life and the 6
<br />health and safety of the people that use that road. Because it could be intermittent, heavy traffic. And also, of course there would 7
<br />be some occasional, like UPS type trucks and disposal trucks going on there that aren’t there, in an area where there are, it’s 8
<br />evidently a large bike route where people are used to doing things a certain way. Having said that, everybody in this room has to 9
<br />realize that everything’s changing in Orange County, Orange County’s not staying the same. It’s all changing, everywhere. I’ve 10
<br />been here 45 years, I wish it was like it was then, but it’s not anything like that. So, things do change, but this really speaks to the 11
<br />traffic to the health and safety issue. 12
<br /> 13 Michael Harvey: Let me also state that the Orange County UDO does have thresholds where formal traffic impact assessment 14
<br />are required to be done. This did not meet those thresholds, which is why the applicant was not required to produce one. 15 16
<br />Barry Katz: And how far from that threshold was the application? 17
<br /> 18 Michael Harvey: Yeah, that may actually be a better questioned answered by Mr. Smith or another member of the applicant 19
<br />team. I will say the threshold per the UDO was 800 cars/trips for a 24-hour period. 20
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<br />James Bryan: If I may, there’s a few things that I’ll offer, just because this is a new Board and is a very long meeting. So, it seems 22
<br />to be where the big attention is with the last three standards. There was some question raised about the acoustics and stuff like 23
<br />that so just so the Board knows their prerogative that the Board has the prerogative that they have subpoena power so, if you 24
<br />want to hear somebody or something to make a decision, it’s very unusual but you could ask/say, “Hey, bring me somebody”. 25
<br />Another prerogative you have is to grant a continuance. This is a very late meeting, it’s very common for a Board to say, “We’re 26
<br />tired, we’re going to go another day for our own sake, or because there’s more evidence that we want to hear”. Parties can ask for 27
<br />a continuance and say, “I would like to have somebody available” to come before you. But, that’s all the Boards prerogative, you 28
<br />don’t have to do any of that. Now, harmony is one of the ones that we’ve heard about and is sometimes very difficult for a Board 29
<br />to get a grasp on it. I’m not going to do a great job but hopefully I can nudge in the right direction of what to consider. First is that 30
<br />all of these start with a rebuttable presumption, so the Board of county commissioners established all the zoning, they say, “These 31
<br />are our zoning districts, these are uses, this is what can go in here” and by saying that you can apply for a SUP, that’s the first 32
<br />rebuttable presumption. Now, the first burden in upon the applicant. They have to give some confident material, substantial 33
<br />evidence, that says, “Yeah, that’s true” and the opponents say, “No, you haven’t met your burden” or something to the contrary. So 34
<br />for harmony there was a case out of Guilford where the Board rejected a use, said that there’s insufficient evidence of harmony. 35
<br />That was overturned because the courts said, “No, you’ve got that rebuttable presumption that there was some sort of plan in 36
<br />place”. Another case came out of Pine Bluff and that case was about this nebulous objection that they were saying this will change 37
<br />the area. And that one was so – that it could be applied to virtually any development and those were the key words that the court 38
<br />was saying that it could be applied to anything. So, it has to be something more specific than that. Has to be specific to this 39
<br />development. So those are the kind of things to keep in mind. 40
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<br />Barry Katz: I request… as far as what we’ve heard from numerous people is what the character of this area is, very much about 42
<br />what this character is. And that’s a particular circumstance when we’re faced with general statutes that the county and the state 43
<br />have put forward. How much weight can we or do we put on the particular circumstances? These would be whether or not the 44
<br />applicant has met the standards issued by the county and issued by the state. 45
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<br />James Bryan: I’m not sure I’ve got a good answer for you. So, a practical answer. Let me start with a practical answer. First, you 47
<br />ask staff point to me in the comprehensive plan what we expect for this area and then once you have that, then you ask the 48
<br />applicant, “show me that it’s harmonious” and they’re going to give you something. And then, you’re going to have the opponent 49
<br />saying, “It’s not harmonious because of this... “. It has to be something more than nebulous and then it’s a weight, a balancing act. 50
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<br />Barry Katz: Ok, I wouldn’t dispute that the applicant has met the obligations, the legal obligations of the state and the county. I 52
<br />believe that. But, that’s not what we’re here to evaluate then, it goes further. And, this is another of the issue. 53
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