TOWN OF CARY
Zoning Board of Adjustment Hearing
January 12, 2004

TOWN OF CARY                                                                                               CASE NO. 03-A-013
STATE OF NORTH CAROLINA

STAFF CONTACT:       Beth Lewis
                                   Senior Planner
                                   (919) 462-3944
                                   e-mail: beth.lewis@townofcary.org

APPLICANT(S):            Baxter’s Blue Marlin

OWNER(S):                  Dennis Thompson LLC Mgr.

LOCATION:                  111 Shannon Oaks Circle , Cary , NC   27513

PRESENT ZONING:       PDD Major

REQUEST:                    This is an appeal of a Zoning Compliance Officer's decision that a sign placed without a
                                    permit and in violation of a condition of site plan approval must be removed.                                                                           

ADMINISTRATIVE APPEAL WORKSHEET

FACTORS RELEVANT TO THE DETERMINATION OF AN ADMINISTRATIVE APPEAL:

Appeals to the Zoning Board of Adjustment from decisions of the Town’s administrative staff are allowed under the Land Development Ordinance (LDO).  Decisions which may be appealed to the Zoning Board of Adjustment include any order, requirement, permit, decision, determination, refusal, or interpretation made by any administrative officer in interpreting and/or enforcing the provisions of the LDO.  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 LDO 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:

February 18, 2000    Phillip Waller applied for three sign permits for the Blue Marlin Restaurant.

February 23, 2000     Inspections and Permits received the applications.

March 1, 2000             Matthew Griffin issued sign permit number 00126 for all three signs.  This included a sign for the words Blue Marlin in channel letters with a burgundy face and a mirror gold trim cap.  The lower raceway mount was to be painted to match the building color. This permit for channel letters should not have been issued, since it did not meet nor match the Uniform Sign Plan of the property. This particular sign has been removed.

In the ensuing years, there is a change of ownership.  Baxter’s Blue Marlin opens.  

April 17, 2001         Comco Signs designs a sign for Baxter’s Blue Marlin Steaks & Seafood.

June 4, 2001          Suzanne Prince issued a sign permit for an oval wall sign restricted to “accordance w/ uniform sign plan for Shannon Oaks”.  The permit has Non-illumination checked and double underlined.  The permit application included two separate drawings. One of the drawings showed only the oval sign to “replace the existing signage (name change),  colors to match existing signage”.  The second drawing indicating placement of the oval sign did include a sign of individual channel letters as well as the oval sign, but a permit was not sought nor issued for the channel letters.  

June 2, 2003          The development review committee approved the “site plan subject to any Special Conditions of Approval”.

June 16, 2003       Shannon Oaks Partnership received a letter from Beth Lewis, Planner for the Town of Cary which noted Special Condition of Approval number 4 “A new sign has been installed over the front door.  The sign was installed without a permit, and does not meet the Uniform Sign Plan for Shannon Oaks.  A site plan amendment cannot be granted until that sign is removed.  Amanda Powell, 469-4342, can answer sign-related questions.”

September 11, 2003      A second notice of sign ordinance violation was issued to Baxter’s Blue Marlin at 111 Shannon Oaks by Zoning Compliance Officer Mark Tutor, noting the sign was not permitted as prescribed in the site plan approval letter and the owners were given 15 days to comply by removing the sign.

October 6, 2003          Zoning Compliance Officer Tutor mailed a Notice of Zoning Citation to Baxter’s Blue Marlin again noting that one of the wall signs did not have a permit nor could it receive a permit because that particular sign as it did not meet the uniform sign plan criteria for Shannon Oaks.

October 8, 2003        Mark Tutor, Amanda Powell, and Beth Lewis met with John Thomas of Baxter’s Blue Marlin restaurant. They explained that the existing sign was not permitted and could not be permitted under the current Uniform Sign Plan for Shannon Oaks.  Changing the Uniform Sign Plan is possible, but all other signs in Shannon Oaks would have to be changed.  The option to appeal was discussed and Mr. Thomas was informed that he would need to state his intentions by Friday, October 10, 2003 to avoid additional fines.  

October 13, 2003       Application for the administrative appeal was received.

November 6, 2003     The appeal was scheduled for the December 8, 2003 Board of Adjustment meeting.

Per the Uniform Sign Plan, this is the type of sign permitted on Baxter’s.  This sign was installed with a permit.

This is the sign that was installed on the façade of Baxter’s without a permit.  This is the sign that that was ordered removed as a condition of site plan approval and is the subject of this appeal.

Another restaurant in Shannon Oaks, Chili’s, has this sign.  This sign was specifically permitted by the Town Council in Shannon Oaks’ Uniform Sign Plan.  In previous years, the Town Council approved each sign and Uniform Sign Plan specifically, and this sign was permitted for Chili’s only.  The Town Council has amended the sign ordinance in ensuing years, and they no longer oversee each sign installed nor can they permit an exception such as this to a Uniform Sign Plan.

Attached is a copy of the text of the Town Council discussion of the Chili’s sign.  The Chili’s sign was discussed and permitted by Town Council specifically.

UNDISPUTED FINDING OF FACTS:

1.   The applicant is Dennis Thompson LLC manager.

2.       The property is developed with Baxter’s Blue Marlin Restaurant.

3.       The property is zoned PDD, Major, and is part of the Kildaire Community Activity Center .   

If you feel the Notice of Zoning Citation was issued correctly:

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 LDO, we find the following:

FACTS:  [insert facts found]

CONCLUSION:

1.       Based on the application, testimony and evidence, the general purposes of the LDO, and the above findings, the Board concludes that the decision of the Town official was correct, and the applicant has failed to show that the Officer erred in the application or interpretation of the LDO and the Notice of Zoning Citation is applicable. The appeal is denied.

If you feel the Administrative Appeal has merit, and the Notice of Zoning Citation was issued in error:

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 LDO, we find the administrative officer erred in the application or interpretation of the terms of the LDO and the Notice of Zoning Citation is not applicable because of the following:

FACTS:  [insert facts found]

CONCLUSION:

1.       Based on the application, testimony and evidence, the general purposes of the LDO, and the above findings, the Board concludes that the decision of the Town official was incorrect, and the Notice of Zoning Citation was issued in error.  The appeal is granted.

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