TOWN OF CARY
STATE OF NORTH CAROLINA
ZONING BOARD OF ADJUSTMENT HEARING
July 8, 2002

CASE:

02-A-011

STAFF CONTACT:

Beth Lewis
Planner
(919) 469-4342

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

APPLICANT(S):

Charles F. McDarris, Holt York McDarris & High, LLP

OWNER(S):

Weaver Bros., Inc.

LOCATION:

0 NW Maynard Road, Cary, NC

PRESENT ZONING:

Business-2 Conditional Use (B2CU)
   

REQUEST:

Ms. Robin Morris, an attorney for the owner, requested that Mr. Ricky Barker, Associate Director, Planning Department, provide a written interpretation as to whether her client, Weaver Bros. had obtained a vested right to proceed with development of a "vehicle sales lot" on Lots 7 and 8, Maynard Crossing Subdivision Phase 3, due to their "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 at 20 foot, and not a 30 foot, buffer was required for the type of development proposed (a copy of the letter is attached.) The applicant, the present attorney for the owner, is requesting an administrative appeal of Associate Planning Director Ricky Barker’s decision regarding Ms. Morris’ letter (a copy of Mr. Barker’s decision is attached). The applicant is also requesting that you "interpret the Town Zoning Ordinance to require a twenty (20) foot buffer between Weaver Brothers’ employee parking and the adjacent Neo-China Restaurant," an issue that was raised in Ms. Morris’ letter.

 

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.

THE DECISION APPEALED FROM: Mr. Barker’s determination that vested right did not attach to Weaver Bros. proposed development plan.

STANDARD OF REVIEW: 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.

CHRONOLOGY

December 19, 2000 - Michele Hane, Zoning Code Enforcement Officer, provided "Zoning Verification" letters for Lots 7 and 8, Maynard Crossing Subdivision Phase 3, to Elizabeth Narron, of Poyner & Spruill LLP (an agent of the owner) stating that "the above-referenced property is vacant and is zoned Business-2 with Conditions (B2CU)", attaching copies of the allowable uses and conditions. Ms. Hane also stated, "this certification is based on a review of the current ordinances and regulations in full force and effect on December 19, 2000" (a copy of her letters are attached).

January 18, 2001 – Planning and Development Committee considers an ordinance amendment pertaining to "vehicle sales and rental" and recommends setting a public hearing for February 22, 2001.

January 25, 2001 – Town Council directs staff to pursue a UDO amendment making "vehicle sales and rental" a major special use.

On or about January 2001 – Truman Newberry, for the owner, submitted a "concept" plan for Lots 7 and 8 to the Cary Planning Department for a courtesy review. Such reviews "are not specifically provided for in the UDO, and are done on an informal basis to provide potential applicants with preliminary staff observations to help orient them to the Town’s UDO" (from Mr. Barker’s letter), Chapter 5, Part 7 of the UDO provides the process for submitting a site plan and requires an application and related review fee.

February 19, 2001 – Weaver Bros., Inc. purchases Lot 8 and records the deed on February 20th with the Wake County Register of Deeds.

February 22, 2001 – Town Council holds a public hearing of the proposed amendment making "vehicle sales and rental" a major special use.

March 19, 2001 – Planning and Zoning considers the proposed amendment and recommends it to Council.

March 22, 2001 – The Town Council adopts the amendment to the Cary Zoning Ordinance to permit vehicle sales and rental in the B2 zoning district only upon approval of a Major Special Use by the Town Council.

March 29, 2001 – Weaver Bros., Inc. purchases Lot 7 by Weaver Brothers Inc. and records the deed on April 2nd with the Wake County Register of Deeds.

August 31, 2001 – William Piver, P.E., for the owner, Weaver Bros., Inc. submits a Major Special Use application for a Volvo automobile dealership facility for new and pre-owned automobile sales and service" facility on Lots 7 and 8.

September 4, 2001 – William Piver, P.E., for the owner, submits a Site Plan application for a "Sales and Service Volvo Facility" (01-SP-138). Applicant pays the fees for the Major Special Use application and the Site Plan application.

The following is for other background:

January 22, 2002 – The Planning and Zoning Board considers the site plan application and forwards a recommendation for approval to Council. The Planning and Zoning Board Report is attached.

February 14, 2002 – The Town Council held the evidentiary hearing on the Major Special Use application. The related site plan accompanied the Major Special Use for Council action. The major special use application included a request to vary one of the major special use requirements and reduce the required buffer from 30’ to 20’. Per Section 8.14.4(e) of the UDO, "vehicles sales and rental" uses must meet a condition that "The vehicle sales lot is separated from any other business use by at least a 30 foot Type A buffer".

The Town Council passed a motion that the Major Special Use application was denied because of the proposed reduction to the buffer from 30’ to 20’.

March 8, 2002 – Letter from Ms. Robin Morris requesting interpretation from staff that Weaver Bros. did not have to go through major special process because they had a "vested right" to develop Lots 7 and 8 under the UDO as it existed prior to March 22, 2001 (when "vehicle sales and rental" were made a major special use).

April 19, 2002 – Mr. Ricky Barker’s written decision completed.

May 20, 2002, Charles F. McDarris, representing Weaver Brothers, Inc., submitted an application for a hearing before the Zoning Board of Adjustment.

UNDISPUTED FINDING OF FACTS:

1. The applicant, Charles McDarris, is an attorney authorized by Weaver Bros., Inc. to file the appeal , and written documentation of that authorization has been received.

2.  Lot 7 and Lot 8 are zoned B2CU, Business 2 , Conditional Use.

3.  Ms. Michelle Hane issued a "zoning verification" letter dated December 19, 2000, stating: "the above-referenced property is vacant and is zoned Business with Conditions (B2CU)", Ms. Hane also stated "This certification is based on a review of the current ordinances and regulations in full force and effect on December 19, 2000."

4.  Sometime in January 2001, Weaver Bros., Inc. submitted an informal concept plan, showing a vehicle sales facility located on lots 7 and 8.

5.  Lot 8 was purchased by Weaver Bros., Inc. on February 19, 2001.

6.  March 22, 2001 – The Town Council adopted a amendment to the Cary Zoning Ordinance to permit vehicle sales and rental in the B2 zoning district only upon approval of a Major Special Use by the Town Council.

7.  Lot 7 was purchased by Weaver Bros., Inc. on March 29, 2001.

8.  Weaver Bros., Inc, through an agent submitted its major special use application on August 31, 2001 and submitted its site plan for an auto sales facility on September 4, 2001. Weaver Bros., Inc. paid the application fees on September 4, 2001.

     

    If you feel Mr. Barker’s decision was correct, you should affirm the contested action:

    MOTION TO DENY APPLICATION AND AFFIRM STAFF’S DETERMINATION

    After conducting a duly advertised public hearing and reviewing the application, testimony and evidence and the general purposes of the UDO and based upon substantial evidence, I MOVE THAT THE APPLICANT HAS FAILED TO SHOW THAT MR. RICKY BARKER, ERRED IN THE APPLICATION OR INTERPRETATION OF THE TERMS OF THE CARY UDO, FOR THE FOLLOWING REASONS:

    Additional Proposed Finding of Fact:

9.  Mr. Barker’s was correct in asserting that the vested rights concept did not apply. Vested rights means that once a person has established a legal right to carry out a project, it can be done under the rules that were in effect when the project was approved. Weaver Bros. never established a legal right to carry out their project, either before or after adoption of the UDO amendment. Mr. Barker was right:

AND MR. BARKER’S DETERMINATION THAT NO VESTED RIGHTS ATTACHED TO THE DEVELOPMENT OF EITHER LOT 7 OR LOT 8 IS AFFIRMED.

If you feel the Administrative Appeal has merit, and that Mr. Barker’s decision was in error, and you want to reverse or modify his decision:

MOTION TO GRANT APPLICATION AND MODIFY STAFF’S DETERMINATION

After conducting a duly advertised public hearing and reviewing the application, testimony and evidence and the general purposes of the UDO and based upon substantial evidence, I MOVE THAT THE APPLICANT HAS SHOWN THAT MR. RICKY BARKER ERRED IN THE APPLICATION OR INTERPRETATION OF THE TERMS OF THE CARY UDO, FOR THE FOLLOWING REASON:

Weaver Bro.’s Inc. acquired vested rights because:

  1. Vested rights do apply to the development of Lots 7 and 8. The applicant acted in good faith reliance on local zoning law in purchasing Lot 8 and Lot 7, because they reasonably relied on staff’s zoning verification letters and they reasonably relied on staff’s "courtesy review" of the "concept plan" in purchasing Lot 8 on February 19th 2001 and in purchasing Lot 7 on March 29th, 2001.
  2. ______________________________.
  3. ______________________________.

AND MR. BARKER’S DECISION IS OVERTURNED [OR MODIFIED].

REQUEST FOR "INTERPRETATION":

IF THE BOARD OVERTURNS STAFF’S DECISION, IT MAY DECIDE TO GO ON TO DECIDE IF STAFF ERRED IN DECIDING THAT, UNDER THE UDO AS IT EXISTED PRIOR TO MARCH 22, 2001, A 20 OR 30 FOOT BUFFER WAS REQUIRED.

Chapter 8, Part 14. B-2 Commercial District. Sec. 8.14..2 Permitted Use prior to March 22, 2001 was the basis for this requirement.