TOWN
OF
STATE OF
CASE NO. 04-A-002
February 9, 2004
ADMINISTRATIVE
APPEAL
WORKSHEET
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STAFF
CONTACT: |
Beth
Lewis |
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APPLICANT: |
Jerry and Anne Hailey
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OWNER: |
Jerry and Anne Hailey |
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LOCATION: |
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PRESENT
ZONING: |
OICU, Office and Institutional Conditional Use |
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REQUEST: |
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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
STAFF’S POSITION
SUMMARY
This property contains a duplex, or two-family, dwelling that
are in use as residences. This fact
is supported by both Wake County Real Estate data (attached) and Town of
“(B)
Household living
This use category is
characterized by residential occupancy of a dwelling unit by a household.
Tenancy is arranged on a month-to-month or longer basis (lodging where a
tenancy may be arranged for a period of less than 30 days is classified under
the “Visitor Accommodation” category). Common
accessory uses include recreational activities, raising of pets, gardens,
personal storage buildings, hobbies, and parking of the occupants’ vehicles.
Home Occupations and Accessory Dwelling Units are accessory uses that are
subject to additional regulations (see Section 5.3.4).
Specific use types include, but are not limited to:
[omitted material]
(5)
Duplex Dwelling
A building on one lot
that has open yards on all sides and contains two dwelling units that share a
common wall or ceiling/floor and have separate access from the outside.”
Group homes are considered to be a subcategory of “Group
Living” “Residential Use” (Sec. 12.3.2(A)(2):
“(A)
Group Living
This category is
characterized by residential occupancy of a structure by a group of people who
do not meet the definition of “Household Living”.
Tenancy is arranged on a monthly or longer basis, and the size of the
group may be larger than a family. Generally,
Group Living structures have a common eating area for residents.
The residents may receive care, training, or treatment, and the
caregivers may or may not reside at the site.
Accessory uses commonly include recreational facilities and vehicle
parking for occupants and staff. Specific
use types include:
[omitted material]
(2)
Group Home
A dwelling unit in
which unrelated persons with handicaps, as such term is defined in the Fair
Housing Amendments Act, 42 U.S.C. 3602 and Chapter 168, Article 3 of the North
Carolina General Statues, live together as a single housekeeping unit.
Supervisory and support personnel who assist in rehabilitation and
personal care for the residents with disabilities may, but are not required to,
reside in the dwelling. All group
homes must comply with all applicable federal, state, and local licensing
requirements and health regulations. A
group home may house up to ten residents. The
term “group home” does not include a facility that provides the full range
of medical services found in health care institutions or dependent living
facilities, and the term “handicapped” does not include mentally ill persons
who are dangerous to others as defined in N.C.G.S. 122C-3(11)b.
A group home may not serve the purpose of, or as an alternative to,
incarceration.”
Sec.
10.3.4 of the LDO provides as follows:
“Change
of Use
(A)
Any nonconforming use may be changed to a conforming use by securing all
approvals and permits that this Ordinance requires for the intended or resulting
use. No nonconforming use may be
changed to another nonconforming use.
(B)
However, the establishment or replacement of residentially used
structures on land zoned for non-residential use shall be prohibited unless a
rezoning to an appropriate residential district is approved first.”
The
applicants wish to change the use from “Duplex Dwelling” use sub-classification
of “Household Living” Residential
Use to a “Group Home” use, sub-classification under “Group
Living” Residential Use. Since
“Group Living” is not a permitted use in the OICU zoning classification, a
change of use from Duplex Dwelling to Group Home use is not permitted. This
would be similar to changing an “Aviation” subcategory use under
the “Public/Institutional” Use category to a “Cemetery”
subcategory use. The LDO does
not permit the use of a structure to change from one non-conforming use to
another non-conforming use. If the
non-conforming use is to be changed, it must be changed to a conforming use.
The only way to permit a “Group Home” use to be instituted in this
building is to change the zoning classification to a Residential Use that
permits “Group Living” uses such as “Group Homes”.
APPLICANT’S POSITION
SUMMARY
The applicants’ claim that the structure at
10.1.4.
Change of Ownership or Tenancy
Changes of ownership,
tenancy, or management of an existing nonconformity are permitted but such
nonconformities shall continue to be subject to the provisions of this chapter.
I am proposing to lease my house to be occupied as a
residential group home. Specifically,
six disabled residents would live in the hose with one resident head of
household. The residents are
disabled, but are lawful and functional citizens.
This is a residential use.
Additionally, no extension or expansion of my house is needed
or planned in order for me to lease for occupancy as a group home.
My proposed lease to Phyllis would not be a change of use
because her occupancy of the House for a group home will still be for a
residential use. Therefore,
occupancy of the House as a group home would not violate Section 10.3.4. (Change
of Use) of the LDO, but a continuation of the residential use.
Occupancy as a group home would be within the scope of the grandfathering
that applies to the House. Additionally,
under applicable federal law and regulations, group homes are entitled to
reasonable accommodation and to allow the group home in my house would be a
reasonable accommodation.
UNDISPUTED
FINDING OF FACTS:
1.
The applicants are Jerry and Anne Hailey, who own the Property.
2.
The property is
developed with a “Duplex Dwelling”.
3.
The property is
zoned OICU, Office and Institutional Conditional Use.
4.
No Residential
use is permitted in OICU, except legal nonconforming Residential uses.
IF
YOU CHOOSE TO AFFIRM STAFF DECISION:
If
you believe that Staff did not err in determining that the present Duplex
Dwelling use is permitted (as a nonconforming use) but “Group Homes” are not
allowed and the zoning compliance letter is correct:
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:
We find facts 1-4 above and find: The
Property currently has a Duplex
Dwelling (alternative, if the evidence shows it:
The Property currently has a “Detached Dwelling”).
Occupancy of the Duplex Dwelling as a residence is a legal non-conforming
use. “Duplex Dwelling is a
subcategory of “Household Living Use” a “Residential Use”
classification. A “Group Home”
is a subcategory of “Group Living Use” another type of “Residential Use”
classification. “Household Living
Use” and “Group Living Use” are different uses.
The change in use from “Detached Dwelling/Household Living Use” to to
“Group Home/Group Living Use” is a change in use.
Neither use is presently permitted in the OICU classification. Such
a change would be from one “non-conforming use” to another “non-conforming
use”, and is not permitted by Sec. 10.3.4 of the LDO.
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 Staff decision is affirmed.
IF
YOU BELIEVE STAFF ERRED AND CHOOSE TO REVERSE OR MODIFY THE CONTESTED ACTION:
If
you believe that Staff erred in
determining that the present Duplex Dwelling use is permitted (as a
nonconforming use) but “Group Homes” are not allowed as a continuation of
the present use:
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 or related policies because of the following:
FACTS:
Facts 1- 4 above and ___________.
CONCLUSION:
1.
Based on the
application, testimony and evidence, the general purposes of the LDO, and the
above findings, the Board concludes that a “Duplex Dwelling” and a “Group
Home” are both Residential uses, and to change from one Residential
nonconforming use to another type of Residential Use is permitted by the LDO.
The decision of the Town official was incorrect, and the zoning compliance
letter is incorrect.
