TOWN OF CARY
BOARD OF ADJUSTMENT HEARING
September 10, 2001

CASE:

 01-A-012

STAFF CONTACT:

Walter Harris
Zoning Compliance Supervisor
(919) 462-3885
email: wharris@ci.cary.nc.us

APPLICANT(S):

 Paul V. Phillips

OWNER(S):

 Paul and Wilma Phillips

LOCATION:

6817 Indian Wells Road, Morrisville, NC 27560

PRESENT ZONING:

 Residential-40 (R-40)

REQUEST:

 The applicant is appealing a determination made by an administrative officer in case number 01-ZV-256 that operations on the site at 6817 Indian Wells Road constitutes an illegal use. Staff’s decision is based on a complaint and several inspections of 6817 Indian Wells Road whereby a "logging" operation of Triangle Forest Products, Inc. was noted. This use is not listed as a permitted use on property zoned Residential 30 (R30) and appears to exceed the Special Use Permit granted by the Wake County Board of Adjustment on December 8, 1981. The applicant contends that the operation of the "wood yard" at the site is a legal nonconforming use of the property. The applicant says that there has been no expansion or enlargement of the use since 1981 when the special use permit was granted, except for "overflow storage" on an adjacent lot, which applicant says has been terminated.

BACKGROUND:

Tracy Roberts, Sr. Planner, received a citizen complaint about the logging operation at 6817 Indian Wells Road in April, 2001. Staff has inspected the property several times. Affidavits provided by the petition show that the petitioner, Paul V. Phillips began "cutting firewood" for resale in the 1950’s. On October 28, 1981, P. V. Phillips applied to the Wake County Board of Adjustment ("WCBOA") to "expand wood business and use newly constructed 32 x 60 building to conduct business from" (copy attached). The WCBOA granted a special use permit to Mr. P. V. Phillips to operate his present activities in the location in which he is now located and that he be permitted to use the building as he has indicated; provided that he moves the portion of use to the right of the entrance, across the road to the left hand side, on his property; that he construct a vegetative fence on the line to the west of his property, where it joins the Cobb property down to the trees in the rear…That the Petitioner be allowed twelve months to carry out the provisions of the motion and the vegetation planted. This Motion also incorporated the findings that were made in response to Attorney Holt’s questions and the responses to his questions. A copy of the Minutes is attached. This special use permit was amended on January 5, 1982 by adding a requirement that the applicant plant a vegetative fence on the east and west side of the property.

Specific findings included in the special use permit were:

  • Paul V. Phillips, the landowner, operated a firewood business;
  • Mr. Phillips farmed the property and the firewood business was an accessory operation;
  • Mr. Phillips farmed about ˝ of his acreage in the summer and woodcut in the winter months;
  • Mr. Phillips constructed the building for storage and maintenance of his equipment in the summer and hoped to use it to get out the weather for his woodcutting in the winter months;
  • Mr. Phillips presented affidavits of neighbors stating that Mr. Phillips had been cutting firewood for resale for years and that they approved of it.

The area was zoned in 1960 by Wake County as Residential-20. The property came into Cary’s jurisdiction in 1988. The property is currently zoned Residential-30. Permitted uses for this district are: detached dwelling; churches; schools; bona fide farms, provided that any stand or building used for the sale of products grown or raised on the premises has a floor area or lot coverage no greater than 500 square feet, is located no closer than 100 feet from the side or rear property line, and has a height less than 15 feet; public utility facilities; public safety facilities; utility substations; Accessory uses meeting the requirements of Chapter 13 of this Ordinance.

Chapter 17 deals with the continuation of nonconforming use, and permits normal maintenance and repair. A nonconforming use may not be enlarged or extended in any way, nor may major repairs be made, unless another special use permit is obtained to determine "whether it will substantially injure the value, use and enjoyment of neighboring properties". Mr. Phillips has not been issued a special use permit by the Town of Cary. The purpose of Chapter 17, "Nonconformities" is to regulate and limit the development and continued existence of uses…established prior to the effective date of the [UDO] which do not conform to the requirements of [the UDO]. Many nonconformities may continue, but the provisions of [Chapter 17] are designed to curtail substantial investment in nonconformities and to bring about their eventual improvement or elimination in order to preserve the integrity of [the UDO].

After observation of the site and review of aerial photos, Lissa Parrish, Zoning Compliance Officer, determined that an enlargement or extension of the operation had occurred and that this operation was no longer an accessory use to the farming activity of the property owner. Mr. Paul V. Phillips dba Triangle Forest Products, Inc. was notified in a violation letter dated May 2, 2001 that this use is not allowed under R30 zoning and exceeds the special use permit granted by the Wake County Board of Adjustment.

Staff believes that there has been an enlargement and an extension of the use for the following reasons:

  • The stated primary use of farming of tobacco and/or vegetables is not apparent;
  • It appears that the special use permit was for the cutting and storage of firewood.
  • The business now involves grading logs and loading and unloading of tractor-trailers and is conducted on the site and in the structure year-round.
  • The business is operated by Triangle Forest Products, Inc. who is not the landowner;
  • The business is listed under "logging companies" in the yellow pages as "Triangle Forest Products, Inc., 6817 Indian Wells Road."

The Notice of Violation was issued on May 2, 2001. The petitioner was granted an extension for filing his appeal per a written request dated June 15, 2001. On August 1, 2001 an administrative appeal was filed by the petitioner. The petitioner maintains that he has not expanded his operation and should be allowed to continue with this non-conforming use.

STANDARDS OF REVIEW: Section 6.2.5 of the Cary Unified Development Ordinance regarding Administrative Appeals, states in part the following:

c. In reversing, affirming, or modifying the contested action, the Zoning Board of Adjustment shall have all relevant powers of the administrative officer whom the appeal is taken.

d. The Zoning board of Adjustment shall not reverse or modify the contested action unless it finds that the administrative officer erred in the application or interpretation of the terms of this Ordinance or related policies adopted by the Town.

e. The Zoning Board of Adjustment shall not reverse or modify the contested action unless there is a concurring vote of at least eight members.

SUGGESTED MOTION:

 MOTION TO GRANT APPLICATION AND REVERSE STAFF’S DETERMINATION

Upon consideration of the application materials, staff report, testimony and evidence received at the public hearing, I MOVE THAT THE APPLICANT HAS SHOWN THAT THE ADMINISTRATIVE OFFICER ERRED IN THE APPLICATION OR INTERPRETATION OF THE TERMS OF THE CARY UDO, FOR THE FOLLOWING REASON:

  1. The use has not been enlarged or extended in any way because……………, AND THE STAFF DETERMINATION THAT THE USE IS AN ENLARGEMENT OR EXTENSION OF THAT PERMITTED BY THE SPECIAL USE PERMIT AND IS ILLEGAL IS HEREBY REVERSED.

All subsequent actions taken by staff with regard to this matter shall be in accordance with this reversal.

MOTION TO GRANT APPLICATION AND MODIFY STAFF’S DETERMINATION

Upon consideration of the application materials, staff report, testimony and evidence received at the public hearing, I move that the applicant has shown that the administrative officer erred in the application or interpretation of the terms of the Cary UDO, for the following reason:

  1. The nonconforming use has not been enlarged or extended in any way because_______________________________________,

AND THE STAFF DETERMINATION THAT THE USE IS AN ENLARGEMENT OR EXTENSION OF THAT PERMITTED BY THE SPECIAL USE PERMIT AND IS ILLEGAL IS HEREBY MODIFIED, AS FOLLOWS:

  1. ______________________________________
  2. ______________________________________

All subsequent actions taken by staff with regard to this matter shall be in accordance with this modification.

  1. ______________________________________
  2. ______________________________________
    3.
MOTION TO DENY APPEAL

Upon consideration the application materials, staff report, testimony and evidence received at the public hearing, I MOVE THAT APPEAL NO. 01-A-012 HAS FAILED TO SHOW THAT STAFF ERRED IN THE APPLICATION OR INTERPRETATION OF THE TERMS OF THE UDO AND THE APPLICATION IS DENIED BECAUSE THE USE HAS BEEN ENLARGED OR EXTENDED AS FOLLOWS:

1.  _____________________________________
2.  _____________________________________
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