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APPROVED 5/10/2010 OC Board of Adjustment – 2/8/2010 Page 6 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Michael Harvey: We can add that. Jeffrey Schmitt: Please. Michael Harvey: The next is Timeliness of appeal – erection of outdoor sports field lights. Staff has written this script as reinforcing comments made by members during the hearing indicating that the board has found the appeal was not submitted in a timely manner. In rendering this decision, the board relied on the following: The applicant’s testimony and affidavit indicating she was fully aware of the County’ decision to allow the church to erect outdoor sports field lights in September of 2008. The applicant’s affidavit that indicated that she was told of her appeal rights by the Planning Director on January 13, 2009. As you will recall from her affidavit, it indicated that Craig Benedict, Planning Director, indicated she could appeal our decision at that time. Both North Carolina General Statute and the Orange County Zoning Ordinance state that an appeal must be filled within thirty (30) days from a party being aggrieved by the decision of a planner. It is my contention, as it was that evening, as it is before you this evening that she was fully aware she had the rights to appeal and didn’t file her application in a timely manner. In fact, she waited four months after she was told she had to right to appeal to file her application. This is not for the Board’s jurisdiction to consider, the church spent a lot of time and money to bring the lights in compliance. The reason I don’t think it is applicable here is because they would have to do that anyway so that is why you don’t see that here. I have also included in this section that the applicant presented no evidence that the church did not comply with the development provisions or submittal requirements, associated with the submittal of a lighting plan per Section 6.31 of the ordinance. In fact, the record clearly shows that the applicant’s attorney clearly states that the conforming status of the lights, with respect to regulations detailed within the Ordinance, are not an issue. Toward the end of the evening, it is in the record in the minutes, that they would not mind the use of the ball field if the lights were removed. That is not an issue they were focusing on. Per John’s recommendation, we will include an appropriate timeline herein. The argument is that she didn’t file a timely appeal because she should have filed it technically in September or October and in theory, January since the Planning Director gave her that specified amount of time to file the appeal. Tom Brown: How are we, as the board, finding that the Planning Staff, inappropriately suggested. Where is that documented? Michael Harvey: It is in her affidavit. Tom Brown: Staff agrees with her affidavit? Michael Harvey: What the affidavit says is that the planning director told her that she had an unlimited amount of time to appeal this decision. That is not consistent with the state law or zoning ordinance. I cannot offer any kind of testimony that is what the planning director said because I was not at the meeting. Tom Brown: As a board, why would I want to say that? Michael Harvey: Right. My point of putting it in here is that you have to go by the ordinance, which says 30 days. David Blankfard: Is that from when the permit was issued? Michael Harvey: It is technically, from my interpretation, when the permit was issued. There have been a couple of court cases where they say it is 30 days from when the decision is made available to the affected or harmed party which in this case is September but if you allow January it still would have been due in February. David Blankfard: My problem is that the board is finding something based on an affidavit, is that appropriate?