Cary Town Hall Building A, Auditorium
316 N. Academy Street

Board Members Present-Voting: Jeffrey Bartley, Eric Strom, Steve Crutchfield, T.C. Frick, Chairman Gaines Weaver, Michael Cantrell, Alternate Lea Strickland, Alternate Peter Coleman, and Alternate Larry Snead

Staff Present: Chris Simpson, Walter Harris, Beth Lewis, Ricky Barker, Bob Benfield, Donna Blackmer and Joanne Gunther.

Minutes from the June 10, 2002 meeting – the quasi-judicial decisions of the Board made at the July 8, 2002 meeting were prepared in written form by Town staff and sent to the Board. Board members were given the opportunity to note typographical-type errors and a final version of each decision was signed by the Chairperson.

APPLICATION: 02-A-011

STAFF CONTACT: Beth Lewis

SUBJECT PROPERTY: 0 NW Maynard Road, Cary, NC 27513

APPLICANT: Charles McDarris, Esq. 

OWNER(S): Weaver Brothers, Inc.

REQUEST: This is an appeal of a written decision of Associate Planning Director Ricky Barker. Ms. Robin Morris, an attorney for the owner Weaver Bros., Inc, requested that Mr. Barker provide a written decision as to whether her client, Weaver Bros. Inc. had obtained a vested right to proceed with development of a "vehicle sales lot" on Lots 7 and 8, Maynard Crossing Subdivision Phase 3, under the Cary UDO as it existed prior to March 22, 2001, due to Weaver Bros’ "substantial expenditures in good faith reliance on existing zoning regulations". The letter also claimed that, under the zoning code as it existed prior to March 22, 2001, only a 20 foot, and not a 30 foot, buffer was required for the type of development proposed. The applicant, Mr. Charles McDarris, the present attorney for the owner, appealed Mr. Barker’s decision. The applicant also requests an "interpretation" of the Town Zoning Ordinance as it existed prior to March 22, 2001, pertaining to buffers for the proposed use an issue that was raised in Ms. Morris’ letter and Mr. Barker’s decision.

After hearing testimony from staff, Mr. Nick Herman, counsel representing the Town of Cary, Mr. Charles McDarris, counsel representing the applicant and Mr. Danny Weaver, an officer of the applicant, the Board discussed the application.

ACTION:  Mr. Gaines Weaver, Chair, made a motion to affirm the administrative officer’s decision because no error was made by Mr. Barker in deciding that Weaver Bros., Inc. had not obtained vested rights to develop an auto sales lot under the Cary UDO as it existed prior to March 22, 2001. Mr. Weaver’s motion included the following findings of fact: (The Findings of Fact made by Mr. Weaver were those proposed by staff and counsel for the Town, with changes to Findings number 10 and 24).

1. On 12/14/00 the Town Council discussed options presented by Staff to amend the zoning ordinance regarding vehicle sales and rentals.
2. On 12/19/00 Zoning verification letters were sent to Weaver Brothers about allowable uses in the B-2 district as of 12/19/00, along with a copy of ordinance provisions for the B-2 Commercial District as of 12/19/00. As of that date, vehicle sales and rental were permitted uses in the B-2 District subject to the conditions of Section 8.14.2(1) (1)-(3), which included having a permanent sales office located on the site. Before any vehicle sales and rental use was permitted in the B-2 District, Weaver Brothers was required to obtain from the Town of Cary (1) site plan approval, (2) an environmental permit, (3) a building permit, and (4) a certificate of occupancy as required by Part 2, Chapter 5 of the Ordinance. Site Plan approval is governed by Part 7, Chapter 5 of the Ordinance.
3. On 1/18/01 the Planning and Development Committee recommended amendments to the zoning ordinance to allow auto delarships within the B-2 district as a Major Special Use and recommended setting a public hearing for February 22, 2001.
4. On 1/25/01 the Town Council directed Staff to draft an ordinance amendment that would permit auto dealerships in the B-2 district as a major special use.
5. On 2/19/01 Weaver Brothers purchased Lot 8 (deed signed 2/19/01 and recorded on 2/20/01).
6. On 2/22/02 the Town Council held a public hearing on the proposed amendment to the zoning ordinance regarding vehicle sales and rental in the B-2 zoing district.
7. On 3/19/01 the Planning and Zoning Board voted to unanimously approve the amendment to the zoning ordinance regarding vehicles sales and rental in the B-2 zoning district.
8. On 3/22/01 the Town Council unanimously approved the zoning ordinance amendment allowing vehicle sales and rentals in the B-2 district as a major special use where the vehicle sales lot is separated from other business uses by at least a 30-foot Type A buffer.
9. On 3/29/01 Weaver Brothers purchased Lot 7 (deed signed 3/29/01 and recorded 4/2/01).
10. On 7/02/01 a member of the Weaver family, which owns Weaver Brothers (said family member also being a stock holder in Weaver Brothers and officer in Weaver Brothers) purchased Lot 9 (deed signed 7/02/01 and recorded 7/27/01).
11. In documents dated 8/31/01 and 9/04/01, Weaver Brothers submitted a major special use application and Site Plan application (lots 7, 8, 9 per pin numbers on Application and Site Plan).
12. From 9/06/01 to 11/01, the Town reviewed Weaver Brothers plan.
13. On 11/12/01 the Town submitted a letter to Weaver Brothers explaining that the applicant’s plan must be modified to provide a 20-foot buffer on Weaver Brother’s property (in addition to the 10-foot buffer being provided by the adjacent property owner, Neo China) to satisfy the Ordinance’s overall 30-foot buffer requirement.
14. On 11/27/01 Weaver Brothers requested a variance from the overall 30-foot buffer requirement by requesting that it be permitted to provide only a 10-foot buffer on its property, which buffer, when added to the 10 feet being provided on the Neo China property, would total 20 feet rather than 30 feet.
15. On 1/29/02 the Town sent notification to property owners of Weaver Brother’s request for a major special use and site plan approval and provided notification of a public hearing set for 2/14/02
16. On 2/14/02 the Town Council held a meeting and public hearing on Weaver Brothers’ major special use application and request for a variance from the 30-foot buffer requirement, and the Council passed a motion denying Weaver Brothers’ request for a variance. Because the Council denied the variance, the major special use application became moot and was, in effect, denied.
17. On 3/8/02 Weaver Brothers sent to the Town a letter requesting a written opinion on vested rights.
18. On 3/11/02 the Town sent Weaver Brothers a letter informing them of the Council’s decision to deny Weaver Brothers request for a variance to the buffer requirements, with the resulting effect that the major special use permit application was denied.
19. On 4/19/02 the Town sent a letter to Weaver Brothers stating that Town had determined that vested rights did not attach to Weaver Brothers proposed use.
20. On 5/20/02 Weaver Brothers appealed to the Board of Adjustment on the vested rights issue.
21. Under Section 8.14.2 of the Zoning Ordinance as it existed prior to the amendment of 3/22/01, Weaver Brothers never obtained from the Town either site plan approval, an environmental permit, a building permit, or a certificate of occupancy as required by Part 2 of Chapter 5 of the Ordinance. In January 2001, Weaver Brothers submitted a "concept plan" for Lots 7 and 8 to the Cary Planning Department for a courtesy review; but these reviews are not specifically provided for in the Zoning Ordinance and are merely done on an informal basis to provide potential applicants with preliminary staff observations to help orient them to the Town’s Zoning Ordinance.
22. Weaver Brothers does not have a statutory vested right to proceed with with its "vehicle sales facility" under the pre-3/22/01 Zoning Ordinance because Weaver Brothers never obtained from the Town any valid approval or conditional approval of a site specific development plan within the meaning of G.S. 160A-385.1 or any building permit under G.S. 160A-385(b).
23. Weaver Brothers does not have a common-law vested right to proceed with its "vehicle sales facility" under the pre-3/22/01 Zoning Ordinance because Weaver Brothers did not make substantial expenditures prior to, and in good faith reliance on, any valid Town approval of the use in that:
    
    (a)  Weaver Brothers never obtained approval of any kind from the Town to operate its proposed business on Lots 7, 8 or 9, and such approval was required under the pre-3/22/01 Ordinance through the requirements of obtaining site plan approval, an environmental permit, a building permit, and a certificate of occupancy; and such approval was required under the amended Ordinance through obtaining a major special use permit;
    (b)  Weaver Brothers expenditures for Lots 7, 8 and 9 were not made in good faith reliance on, or prior to, any Town approval of Weaver Brothers’ proposed use because no Town approval was ever obtained and neither the Town’s zoning verification letters nor the Staff’s review of Weaver Brothers’ "concept plan" constituted any approval by the Town of Weaver Brothers’ proposed use;
    (c) Weaver Brothers expenditures for Lots 7 and 9 were made after the 3/22/01 amendment to the Zoning Ordinance;
    (d)  Weaver Brothers has not shown that it cannot reasonably comply with the buffer and other requirements of the amended Ordinance and therefore has not shown that the amended Ordinance is a detriment to Weaver Brothers. 
24. Weaver Brothers plan calls for approximately 147 parking spaces and compliance with the standards of the major special use permit would eliminate between 11 and 18 parking spaces.

Based on the foregoing findings of fact, the Board makes the following conclusions of law:

1. Weaver Bros., Inc submitted no evidence to support a conclusion that the company had a statutory vested right to develop its project under the zoning ordinance as it existed prior to 3/22/01.

2. In order to show common law vested rights Weaver Bros., Inc. needed to show:

(a) The company made substantial expenditures before the 3/22/01 amendment to the ordinance;

(b) The substantial expenditures were made in good faith with no knowledge of the pending change to the ordinance;

(c) The substantial expenditures were made in reliance on a permit or some other formal Town approval as required under the old ordinance; and

(d) The company is not prejudiced by, in the sense that they cannot reasonably comply with, the new ordinance as adopted on 3/22/01.

3. The evidence presented by Weaver Brothers was insufficient to show that substantial expenses were incurred in good faith reliance on and prior to any formal Town approval of Weaver Brothers’ project, as no permit or formal approval was ever obtained or applied for by Weaver Brothers.

4. No formal approval, by permit or otherwise, was granted by the Town to Weaver Brothers under the old ordinance and Weaver Brothers never applied for any permit or other formal approval from the Town for its project prior to 3/22/01.

5. Weaver Bros., could reasonably comply with the new ordinance because the loss of parking spaces would only amount to approximately ten to twelve percent loss of their parking spaces, and they could potentially submit a different site plan incorporating lot number 9 owned by one of their officers and share holders to accommodate or to make up for the loss of parking spaces.

6. Were vested rights granted in this case, then any large project could essentially get vested rights merely by purchasing a piece of property.

7. Because vested rights does not apply, Weaver Brothers must comply with the amendments to the Unified Development Ordinance adopted by Town Council on March 22, 2201.