TOWN OF CARY
STATE OF NORTH CAROLINA
ZONING BOARD OF ADJUSTMENT HEARING
August 12, 2002

CASE:

02-A-010

STAFF CONTACT:

Beth Lewis
Planner
(919) 469-4342

e-mail: ehlewis@ci.cary.nc.us

APPLICANT(S):

Emmett Boney Haywood

OWNER(S):

John Mitchell, Thrifty Car Rental. Edith Wilson etal, owner, real estate.

LOCATION:

2800 Pleasant Grove Church Road, Morrisville, NC  27560

PRESENT ZONING:

Planned Employment Center (PEC)

REQUEST:

The applicant is requesting an administrative appeal of the Zoning Compliance Officer's decision that Thrifty Car Rental is in violation of an approved Site Plan.

 

ADMINISTRATIVE APPEAL WORKSHEET

FACTORS RELEVANT TO THE DETERMINATION OF AN ADMINISTRATIVE APPEAL:

Decisions which may be appealed to the Zoning Board of Adjustment include any order, requirement, permit, decision, determination, or refusal made by any administrative officer in enforcing the provisions of the UDO. An appeal to the Zoning Board of Adjustment may be brought by any person, firm, corporation, office, department, board, bureau or commission aggrieved by the order, requirement, permit, decision, or determination which is the subject of the appeal. At a public hearing or a subsequent meeting, the Zoning Board of Adjustment shall adopt a resolution reversing, affirming, or modifying the contested action. In reversing, affirming, or modifying the contested action, the Zoning Board of Adjustment shall have all relevant powers of the administrative officer from whom the appeal is taken. 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 the UDO or related policies adopted by the Town. The Zoning Board of Adjustment shall not reverse or modify the contested action unless there is a concurring vote of at least eight members.

CHRONOLOGY

  1. In the 1980s, Thrifty Car Rental located at 2800 Pleasant Grove Church Road (the "site"). On January 31, 2001, the Town of Cary approved Site Plan 00-SP-239 that provided a revision to the parking lot entrance, necessitated by the addition of a median in Pleasant Grove Church Road.
  2. An inspection by Zoning Compliance Officer Lissa Parrish in late March 2002 found vehicles stored in the right-of-way between Thrifty Car Rental’s property line and the edge of the pavement of Pleasant Grove Church Road.
  3. Officer Parrish sent a Notice of Violation ("NOV") to Thrifty Car Rental on April 1, 2002, citing the agency for acting in violation of an approved Site Plan. Vehicles used in the business were being stored in the right-of-way (see copy of NOV attached). Ms. Parrish gave Thrifty Car Rental the option to either remove the vehicles from the right-of-way within seven (7) days, or appeal her decision to the Zoning Board of Adjustment. The NOV was signed for at Thrifty Car Rental on April 9, 2002.
  4. On April 15, 2002, Emmett Boney Haywood, attorney for Thrifty Car Rental, requested by e-mail an extension of thirty (30) days to bring the property into compliance with the Site Plan. Officer Parrish granted the extension.
  5. On May 9, 2002, Ms. Haywood, on behalf of Thrifty Car Rental, filed an application for the July 8, 2002 Zoning Board of Adjustment meeting for an Administrative Appeal of Officer Parrish’s NOV decision that Thrifty Car Rental was in violation of an approved Site Plan. Filing the appeal stopped all enforcement action on the Town’s behalf until the appeal is decided.
  6. On June 17, 2002, Caroline Fissinger, Legal Assistant to Ms. Haywood, requested by email and received a postponement of the Zoning Board of Adjustment hearing until the August 12, 2002 meeting.

SUMMARY

Site Plan 00-SP-239, approved in January 2001, showed the new entrance to Thrifty Car Rental necessitated by the road improvements. The Site Plan showed the edge of the pavement of Pleasant Grove Church Road, and Thrifty Car Rental’s property line. No vehicular storage was shown in the area between the property line and the edge of the pavement on the approved Site Plan. Officer Parrish issued a Notice of Violation to Thrifty Car Rental for a violation to an approved Site Plan.

The applicant claims that:

- the property is in compliance with the approved Site Plan.

- the right-of-way is a state road, belonging to the state Department of Transportation, and that the Town of  Cary has no authority to impose regulations on State roadways.

- the applicant claims the state has expressed no objection to the parking of vehicles on the right-of-way.

UNDISPUTED FINDING OF FACTS:

  1. The applicant is an attorney representing Thrifty Car Rental, and written documentation of that authorization has been received.
  2. The property is developed with a car rental agency, and is subject to Site Plan 00-SP-239.
  3. The property is zoned PEC, Planned Employment Center.
  4. A Notice of Violation was issued on April 1, 2002, by Officer Lissa Parrish to Thrifty Car Rental for violation of an approved Site Plan.

If you feel the Zoning Compliance Officer’s Notice of Violation was issued correctly:

4. The applicant was cited correctly for operating in violation of an approved Site Plan, and the officer’s Notice of Violation is valid. The applicant violated an approved Site Plan by storing vehicles in the right-of-way between their property line and the edge of the pavement on Pleasant Grove Church Road.

5. The Town of Cary has standing to enforce Cary ordinances on all rights-of-way within Cary’s jurisdiction. The Charter of the Town of Cary, Article I, Section 1.1 states that "The Town of Cary…may exercise in conformity with this charter all municipal powers, functions, rights, privileges and immunities of every name and nature." Section 1.2 states, "the Town of Cary shall have and may exercise all powers which are granted to municipal corporations by the general laws of North Carolina". These sections authorize the Town of Cary to enforce Cary ordinances within our jurisdiction, even with regard to a State Department of Transportation roadway.

If you feel the Administrative Appeal has merit, and the Zoning Compliance Officer’s Notice of Violation was issued in error:

4. The applicant was cited incorrectly for operating in violation of an approved Site Plan, and the officer’s Notice of Violation is to be voided. The applicant has the right to store vehicles on the right-of-way between their property line and the edge of the pavement on Pleasant Grove Church Road without violating any approved Site Plan.

5. The Town of Cary does not have standing to prohibit storage of vehicles on Pleasant Grove Church right-of-way, because it is a State Department of Transportation road.

MOTION TO UPHOLD THE DECISION OF THE TOWN OFFICIAL

After conducting a duly advertised public hearing and reviewing the application, testimony and evidence and the general purposes of the UDO, we find the following

FACTS: [insert facts found]

 

CONCLUSION:

1. Based on the application, testimony and evidence, the general purposes of the UDO, and the above findings, the Board concludes that the decision of the Town official was correct, and the Notice of Violation is applicable.

 

MOTION TO OVERTURN THE DECISION OF THE TOWN OFFICIAL

After conducting a duly advertised public hearing and reviewing the application, testimony, and evidence and the general purpose of the UDO, we find the administrative officer erred in the application or interpretation of the terms of the UDO or related policies BECAUSE OF THE FOLLOWING:

FACTS: [insert facts found]

 

CONCLUSION:
  1. Based on the application, testimony and evidence, the general purposes of the UDO, and the above findings, the Board concludes that the decision of the Town official was incorrect, and the Notice of Violation was issued in error.


Small Vicinity Map
Large Vicinity Map