09-AA-01 Worksheet
TOWN OF
ZONING BOARD OF ADJUSTMENT QUASI-JUDICIAL HEARING
MINIMUM HOUSING APPEAL WORKSHEET
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IN THE MATTER OF: |
CASE NO. 09-AA-01 |
TOWN OF
STATE OF
APPLICANT NAME(S) AND ADDRESS (Owner or party in interest):
Ernest Suber
Briarcliff Apartments
ADDRESSOF SUBJECT PROPERTY:
NAME OF PROPERTY OWNER(S):
3955 E
STAFF REPRESENTATIVES:
Debra Grannan, Senior Planner
phone: (919) 460-4980
e-mail: debra.grannan@townofcary.org
Dexter Lanier, Minimum Housing Inspector
phone: (919) 469-4376
e-mail: dexter.lanier@townofcary.org
ORDER OR DECISION (jointly ‘CONTESTED ACTION’) THAT IS BEING APPEALED:
THE APPEAL PROCESS is provided as required by N.C.G.S 160A-446, Section 8-130 of the Cary Code of Ordinances, and Sections 3.21 and 11.2.2 of the Cary Land Development Ordinance, as applicable.
The Board shall fix a reasonable time for hearing the appeal, shall give due notice to the parties, and shall render its decision within a reasonable time. Any party may appear in person or by agent or attorney. The Board may reverse or affirm, wholly or partly, or may modify the December 3, 2008 Order appealed from, and may make any decision and order that in its opinion ought to be made in the matter, and to that end it shall have all the powers of the Minimum Housing Inspector, but the concurring vote of four members of the Board shall be necessary to reverse or modify the December 3, 2008 Order. The Board shall have power also in passing upon appeals, when practical difficulties or unnecessary hardships would result from carrying out the strict letter of the ordinance, to adapt the application of the ordinance to the necessities of the case to the end that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.
If the Board reverses or modifies the Contested Action, all subsequent actions taken by administrative officers with regard to the subject matter shall be in accordance with the reversal or modification granted by the Board.
REQUEST: The Applicant appeals from the December 3, 2008 Order of the Minimum Housing Inspector ordering that 308 Bargate Drive, Apartment H, be repaired, altered, or improved so as to comply with the minimum standards of fitness established by the Minimum Housing Code.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND:
1. The Appeal was mailed
2. The Contested Action was made on
3. The Contested Action was served on
4. The Applicant is Ernest Suber. The Property Owner is 3955 E Charleston Blvd LLC.
5. The Subject Property is: Briarcliff Apartments
Site Address:
6. All proceedings in furtherance of the Contested Action have been stayed. No civil penalties have been assessed.
7. Notice was provided by the Town of
a. The following owners and/or parties in interest were notified of the
Tenant
3955 E.
Attn: Ernest Suber
NC Corporate Connection, Inc
Attn: Registered Agent
Sunchase American, Ltd
Property Management
Attn: Robert Canham (President)
Briarcliff Apartments
Attn: Earnest Suber
Capmark Finance Inc
Commercial Mortgage Loans
Attn: Morgan G Earnest, II
Capmark Finance Inc
Attn: Michael A. Boyd
Trustee on Deed of Trust for Bargate Properties
b. The Subject Property was posted with a public hearing notification sign on
c. Ads were placed in the Cary News on January 28 and
d. All property owners within 400 feet of the Subject Property were notified by first-class mail sent
8. A copy of this Appeal Worksheet and all Exhibits have been provided to the BOA, the applicant and other persons requesting copies.
9. On
10. The Minimum Housing Inspector inspected the Subject Property on
11. As noted in the
12. The Minimum Housing Inspector inspected the Subject Property again on
13. Neither the Applicant nor anyone else associated with the Subject Property attended the
14. The Minutes of the
15. A second “Complaint and Notice of Hearing” was mailed on
16. The November 4, 2008 Complaint restated the violations found at the August 25, 2008 inspection: a water leak from the unit above; mold growing throughout the walls, cabinets and ceiling; and sheet rock that had been removed.
17. Mr. and Mrs. Suber attended the
18. The Minimum Housing Inspector entered an Order
19. The Minimum Housing Code is codified at Sections 8-116 through 8-134 of the Town of Cary Code of Ordinances, and is attached hereto as Exhibit J.
ISSUE BEFORE THE BOARD:
The Board must determine whether the Minimum Housing Inspector erred in finding that the Subject Property was in violation of the Minimum Housing Code and ordering the Owner to repair, alter, or improve the Subject Property.
MOTIONS:
The Board may deny the appeal and affirm the Order of the Minimum Housing Inspector in its entirety; modify the Order of the Minimum Housing Inspector; or reverse the Order of the Minimum Housing Inspector.
MOTION to DENY the APPEAL and AFFIRM the ORDER of the Minimum Housing Inspector:
After conducting a duly advertised public hearing and reviewing the Contested Action, application materials, testimony and evidence, I MOVE that we DENY the Appeal and adopt the Proposed Resolution Denying Appeal with the following particular findings and conditions:
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TOWN OF |
APPLICATION #09-AA-01 |
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STATE OF |
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RESOLUTION DENYING APPEAL
The Board of Adjustment for the Town of Cary, having held a public hearing on February 9, 2009 to consider the above-referenced appeal and having considered all of the evidence presented in the Contested Action, application materials, record and at the hearing, makes the following FINDINGS OF FACT and CONCLUSIONS.
FINDINGS OF FACT:
1. Insert appropriate facts from “procedural history/factual background” section of Worksheet.
xx. Insert any additional facts found by the Board at the hearing. Facts listed above may also be modified as appropriate.
CONCLUSIONS:
1. The Subject Property is in violation of sections 8-119(4), 8-119(5), 8-120(a), 8-120(c), and 8-123(b) of the Minimum Housing Code.
2. The December 3, 2008 Order of the Minimum Housing Inspector is therefore affirmed.
3. Applicant must make the necessary repairs, alterations, or improvements on or before ____________, 2009. Failure to make the necessary repairs, alterations, or improvements will subject the property owner to a civil penalty of one hundred dollars ($100) for the first day following the expiration of the time period specified herein (___________, 2009). A penalty of one hundred dollars ($100) per day shall be imposed for each subsequent day that the Order remains unsatisfied.
THEREFORE, on the basis of the foregoing, IT IS RESOLVED that the Appeal be DENIED and the Contested Action affirmed.
Ordered this 9th day of February, 2009.
MOTION to MODIFY the Contested Action:
PROPOSED MOTION TO ADOPT RESOLUTION MODIFYNG CONTESTED ACTION
After conducting a duly advertised public hearing and reviewing the Contested Action and application materials, testimony and evidence, I MOVE that we MODIFY the Contested Action and adopt the Proposed Resolution with the following particular findings and conditions:
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TOWN OF |
APPLICATION #09-AA-01 |
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STATE OF |
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RESOLUTION MODIFYING CONTESTED ACTION
The Board of Adjustment for the Town of Cary, having held a public hearing on February 9, 2009 to consider the above-referenced appeal, and having heard all of the evidence presented in the Contested Action, application materials, record and at the hearing, makes the following FINDINGS OF FACT and CONCLUSIONS.
FINDINGS OF FACT:
1. Insert appropriate facts from “procedural history/factual background”” section of Worksheet.
xx. Insert any additional facts found by the Board at the hearing.
CONCLUSIONS:
1. The Subject Property is in violation of section(s) _______ (specify) of the Minimum Housing Code.
2. The December 3, 2008 Order of the Minimum Housing Inspector is therefore modified as follows:
3. Applicant must make the necessary repairs, alterations, or improvements on or before ____________, 2009. Failure to make the necessary repairs, alterations, or improvements will subject the property owner to a civil penalty of one hundred dollars ($100) for the first day following the expiration of the time period specified herein (___________, 2009). A penalty of one hundred dollars ($100) per day shall be imposed for each subsequent day that the Order remains unsatisfied.
THEREFORE, on the basis of the foregoing, IT IS RESOLVED that the Contested Action is modified as provided herein.
Resolved this 9th day of February, 2009.
MOTION to REVERSE the ORDER of the Minimum Housing Inspector:
PROPOSED MOTION TO ADOPT RESOLUTION REVERSING CONTESTED ACTION
After conducting a duly advertised public hearing and reviewing the Contested Action and application materials, testimony and evidence, I MOVE that we REVERSE the Contested Action and adopt the Proposed Resolution with the following particular findings and conditions:
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TOWN OF |
APPLICATION #09-AA-01 |
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STATE OF |
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RESOLUTION REVERSING CONTESTED ACTION
The Board of Adjustment for the Town of Cary, having held a public hearing on February 9, 2009 to consider the above referenced appeal, and having heard all of the evidence presented in the Contested Action, application materials, record and at the hearing, makes the following FINDINGS OF FACT and CONCLUSIONS.
FINDINGS OF FACT:
1. Insert appropriate facts from “procedural history/factual background” section of Worksheet.
xx. Insert any additional facts found by the Board at the hearing.
CONCLUSIONS:
1. The Subject Property is not in violation of the Minimum Housing Code.
2. The December 3, 2008 Order of the Minimum Housing Inspector is therefore reversed.
THEREFORE, on the basis of the foregoing, IT IS RESOLVED that the Contested Action is Reversed,
Resolved this 9th day of February, 2009.
List of Attached Exhibits:
Exhibit A
Exhibit B
Exhibit C
Exhibit D Photographs of
Exhibit E
Exhibit F Minutes of September 19, 2008 hearing
Exhibit G
Exhibit H
Exhibit I Minutes of November 18, 2008 hearing
Exhibit J Town of
