CITY OF LEXINGTON PLANNING BOARD/BOARD OF ADJUSTMENT

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ADJUSTMENT

JULY 20, 2015

Regular Meeting City Hall 6:00 PM

Vernon G. Price, Jr. City Council Chamber 28 West Center Street, Lexington, NC 27292

1. CALL TO ORDER

2. PLEDGE OF ALLEGIANCE

3. APPROVAL OF MINUTES

Planning Board/Board of Adjustment Regular Meeting - May 18, 2015

4. PETITIONS FROM CITIZENS

Members of the public may address the Planning Board/Board of Adjustment on items not listed on the printed agenda. Please state your name, address, and observe the three-minute time limit.

5. ADOPT AGENDA Adopt Agenda 6. RECOGNITIONS

7. ITEMS BEFORE THE PLANNING BOARD

1. Amendment to City's Code of Ordinances, Appendix A, Land Use Ordinance, to Permit and Regulate Real Estate Signs in Business and Industrial Zoning Districts- Ordinance No. 16-01 -

8. ITEMS BEFORE THE BOARD OF ADJUSTMENT

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10. ADJOURNMENT Adjourn

Anyone who needs an accommodation to participate in the meeting should notify the Business and Community Development Department at 248-3900 at least forty-eight (48) hours prior to the

meeting.

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CITY OF LEXINGTON

PLANNING BOARD/BOARD OF ADJUSTMENT

MINUTES MAY 18, 2015

Regular Meeting City Hall 6:00 PM

Vernon G. Price, Jr. City Council Chamber 28 West Center Street, Lexington, NC 27292

CALL TO ORDER

Chairman Eric Henderson called the meeting to order.

PRESENT: Bonnie Moore-McCray, Barbara McWhorter, Eric Henderson, Christopher Allred, Janice Richardson, Anne Marie Galloway

ABSENT: Daniel Timberlake, Robert Mack, Mickey Sharpe

PLEDGE OF ALLEGIANCE APPROVAL OF MINUTES

Planning Board/Board of Adjustment Regular Meeting - March 16, 2015

RESULT: APPROVED [UNANIMOUS]

MOVER: Janice Richardson SECONDER: Bonnie Moore-McCray

AYES: Moore-McCray, McWhorter, Henderson, Allred, Richardson, Galloway ABSENT: Timberlake, Mack, Sharpe

PETITIONS FROM CITIZENS ADOPT AGENDA

Adopt Agenda

RESULT: ADOPTED [UNANIMOUS]

MOVER: Janice Richardson SECONDER: Bonnie Moore-McCray

RECOGNITIONS

ITEMS BEFORE THE PLANNING BOARD

AMENDMENT TO CITY'S LAND USE ORDINANCE ZONING MAP - REZONING FROM TRADITIONAL NEIGHBORHOOD DISTRICT TO BUSINESS DISTRICT - 1251 AND 1265 FAIRVIEW DRIVE - ORDINANCE NO. 15-34

Minutes Acceptance: Minutes of May 18, 2015 6:00 PM (Approval of Minutes)

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The City has received a request for a Zoning Map Amendment to rezone three properties located off of Fairview Drive from Traditional Neighborhood District to Business District. Rezonings require review and recommendation by the Planning Board and adoption of an ordinance by City Council following a public hearing. Notice of the public hearing will be published in The Dispatch on May 28, 2015 and June 4, 2015.

The subject properties are located on multiple parcels described by the Davidson County Tax Department as Parcel Numbers 1134700000049, 1134700000049A and 1134B0000212, contains + 3.34 acres, and have a street address of 1251 Fairview Drive and 1265 Fairview Drive. The properties are owned by Frank and Beth Callicutt, and Richard and Valerie Feezor.

In accordance with State law, the Planning Board and City Council must adopt a statement of consistency relating any rezoning to the adopted Lexington Land Use Plan (2004). The Land Use Plan designated the area around Cotton Grove Road, Fairview Drive, and I-85 as a local commerce center where economic development should be encouraged. The subject property is appropriate for Business District zoning due its close proximity to adjacent commercial development and because it is located in the local commerce center as described in the Lexington Land Use Plan. The following is a proposed statement of consistency: “In accordance with The Land Use Plan, the subject property fits the description for Business District more so than that of the Traditional Neighborhood District. Therefore rezoning the subject property from Traditional Neighborhood District to Business District is consistent with the Lexington Land Use Plan.”

Adjoining property owners were notified by mail and the property has been posted. No opposition has been received in the Office of Business and Community Development.

Board members discussed the properties surrounding these properties noting that most of the area was already zoned business.

Motion to approve the following statement of consistency: “In accordance with The Land Use Plan, the subject property fits the description for Business District more so than that of Traditional Neighborhood District. Therefore rezoning the subject property from Traditional Neighborhood District to Business District is consistent with the Lexington Land Use Plan.”

RESULT: RECOMMENDED TO CITY COUNCIL [UNANIMOUS]

MOVER: Christopher Allred SECONDER: Bonnie Moore-McCray

Motion to recommend adoption of Ordinance No. 15-34 to City Council to amend the City of Lexington Land Use Ordinance Zoning Map to rezone + 3.36 acres located on Fairview Drive, described by the Davidson County Tax Department as Parcel Numbers 1134700000049, 1134700000049A, and 1134B0000212 is rezoned from Traditional Neighborhood District to Business District.

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MOVER: Barbara McWhorter SECONDER: Bonnie Moore-McCray

APPLICATION FOR MAJOR ZONING PERMIT – GROCERY STORE – FAIRVIEW DRIVE

Presentor: Joshua Monk

Mr. Ben Lazillotta with Bohler Engineering, as a representative for MGP Retail Consulting, LLC, has submitted an Application for a Major Zoning Permit for the development of a grocery store on Fairview Drive. An application for rezoning the property has also been submitted, and if approved by Council, would rezone the property from Traditional Neighborhood District to Business Zoning District where grocery stores are permitted by right in existing commercial buildings and by Major Zoning Permit as new development. Approval of the Major Zoning Permit would be contingent upon approval of the rezoning. The approval process for issuance of a Major Zoning Permit includes staff review by various departments, Planning Board recommendation to City Council, and City Council approval.

The subject property is comprised of 3 parcels totaling 3.34-acres identified by the Davidson County Tax Department as Parcel Numbers 1134700000049, 1134700000049A and 1134B0000212, contains + 3.34 acres, which are owned by Frank and Beth Callicutt, and Richard and Valerie Feezor with a street addresses of 1265 and 1251 Fairview Drive.

The applicant is proposing to purchase and rezone the lots that are currently zoned Traditional Neighborhood and combine the three parcels so that they can construct a 36,170 square foot grocery store. An alley way behind a portion of the property has been identified and research is being conducted to determine if it is a public right-of-way or not. If so, the development would be contingent upon the public right-of-way being closed by City Council in order to make the building fit on the site.

The applicant has submitted a site plan, landscape plan and color renderings of the proposed building. Proposed ingress and egress will be provided by two access points along Fairview Drive. Per the attached renderings, the exterior finishes planned for this structure are wood, glass, and brick finishes. A sidewalk will be constructed along Fairview Drive and all landscaping, parking and other associated features, as submitted, meet the requirements of the Lexington Land Use Ordinance.

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All proposed signage for the building must comply with the Land Use Ordinance. An application for sign permit must be submitted separately prior to sign installation, usually nearing the end of construction. Sign permits are issued by staff and may be obtained separate from the Major Zoning Permit.

The property has been posted and adjoining property owners have been notified by mail. No opposition has been received concerning this request.

John Harper, representing his parents Gary and Rosalee Harper, stated their concern of how close the dumpster was to their adjacent property and wanted to see if this screened area would have a negative impact on their property.

Board members reviewed the location of the dumpster which is a small distance from the property line of the Harpers. It was also noted that if the Harpers developed their lot the same dumpster situation may exist.

Barbara McWhorter voiced some concerns as to the appearance of the proposed store as it is positioned against the two streets especially the side that fronts on Fairview Drive. Josh Monk explained that this was the best placement of the building in order to meet all the criteria of the Zoning Ordinance as relates to parking, landscaping and entrance and exits to the building. The site plan was also based on the Department of Transportation’s request that the driveway be pushed back approximately 50 feet.

Approve issuance of a Major Zoning Permit to Bohler Engineering to construct a grocery store on Fairview Drive in accordance with the Application for Major Zoning Permit as submitted, contingent on the property being rezoned from Traditional Neighborhood District to Business District and any necessary alley right-of-way being closed to the rear of the development.

MOVER: Christopher Allred SECONDER: Barbara McWhorter

APPLICATION FOR MAJOR ZONING PERMIT – THE ISAACS GROUP, P.C. – BOJANGLES RESTAURANT AT 94 HIGHWAY 64 WEST

Mr. William Pugh of The Isaacs Group, P.C. as a representative for Randolph Development Group LLC, has submitted an Application for a Major Zoning Permit for the development of a Bojangles’ restaurant at 94 Highway 64 West. The property is within the City’s Business Zoning District, where restaurants are permitted by right in existing commercial buildings and by Major Zoning Permit as new development. The approval process for issuance of a Major Zoning Permit includes staff review by various departments, Planning Board recommendation to City Council and City Council approval.

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The subject property is comprised of two parcels totaling 3.14-acres identified by the Davidson County Tax Department as Parcel Numbers 1133500000006A and 1133500000006E which is owned by James and Sandra Shoaf. The property is currently vacant and is located on Highway 64 West between Walmart Neighborhood Market and Parkway Ford.

The applicant is proposing to reconfigure the two parcels so that they can construct a 3,808 square foot Bojangles’ restaurant with a drive thru on the parcel closest to Highway 64. The applicant has submitted a site plan, landscape plan, and color renderings of the proposed building. Proposed ingress and egress will be provided by two access points from the Walmart Neighborhood Market parking lot. A new plat will be recorded for the property and provide the utility easements as necessary. The plans, as submitted, meet the requirements of the Lexington Land Use Ordinance.

Board members discussed the restaurant and its location adjacent to the Walmart Neighborhood Market. Board members were interested in whether or not the Bojangles and shops would have an entrance on Forest Hill Road. At this time that is not in the plans so there would not be a cut through for traffic. Bojangles and the shops can be accessed through the Walmart parking lot.

Motion to approve issuance of a Major Zoning Permit to construct a Bojangles’ restaurant at 94 Highway 64 West in accordance with the Application for Major Zoning Permit as submitted with attachments.

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MOVER: Bonnie Moore-McCray SECONDER: Janice Richardson

APPLICATION FOR MAJOR ZONING PERMIT – THE ISAAS GROUP, P.C. – RETAIL AT 94 US HIGHWAY 64 WEST

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Mr. William Pugh of The Isaacs Group, P.C. as a representative for Randolph Development Group, LLC, has submitted an Application for a Major Zoning Permit for the development of a retail establishment at 94 Highway 64 West. The property is within the City’s Business Zoning District, where retail establishments are a permitted use by right and new commercial development requires a Major Zoning Permit. The approval process for issuance of a Major Zoning Permit includes staff review by various departments, Planning Board recommendation to City Council, and City Council approval.

The subject property is comprised of two parcels totaling 3.14-acres identified by the Davidson County Tax Department as Parcel Numbers 1133500000006A and 1133500000006E which is owned by James and Sandra Shoaf. The property is currently vacant and is located on Highway 64 West between Walmart Neighborhood Market and Parkway Ford.

The applicant is proposing to reconfigure the two parcels to construct an 11,980 square-foot retail establishment on the parcel furthest from Highway 64. The applicant has submitted a site plan, landscape plan, and color renderings of the proposed building. Proposed ingress and egress will be provided by two access points from the Walmart Neighborhood Market parking lot. A new plat will be recorded for the property and provide the utility easements as necessary and a new address will be given to the property upon completion. The plans, as submitted, meet the requirements of the Lexington Land Use Ordinance.

Approve issuance of a Major Zoning Permit to The Isaacs Group, P.C, to construct a retail establishment at 94 Highway 64 West in accordance with the Application for Major Zoning Permit as submitted.

MOVER: Barbara McWhorter SECONDER: Christopher Allred

AMENDMENT TO CITY'S LAND USE ORDINANCE ZONING MAP - REZONING FROM BUSINESS DISTRICT TO TRADITIONAL NEIGHBORHOOD DISTRICT - ALBEMARLE STREET PROPERTIES - ORDINANCE NO. 15-36

Presenter: Joshua Monk, City Planner

Business and Community Development staff initiated a Zoning Map Amendment to rezone several properties located off of Albemarle Street, from Business District to Traditional

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Neighborhood District. Rezoning requires review and recommendation by the Planning Board and adoption of an ordinance by City Council following a public hearing. Notice of the public hearing will be published in The Dispatch on May 28, 2015 and June 4, 2015.

The subject property includes several parcels described by the Davidson County Tax Department as Parcel Numbers 11342K0000104A, 11342K0000104B, 11342K0000110, 11342K0000116, 11342K0000118, 11342K0000120, 11342L00A0001, 11342L00A0005, 11342L00B0013, 11342L00B0015, 11342L00B0015A, contains + 3.87 acres and contains both vacant and occupied properties. The properties are owned by multiple property owners.

In accordance with State law, the Planning Board and City Council must adopt a statement of consistency relating any rezoning to the adopted Lexington Land Use Plan (2004). The Land Use Plan identifies the Traditional Neighborhood District as appropriate for medium to high density residential uses to close proximity to existing residents. The subject properties were zoned Business District to accommodate the proposed west bypass, however, these plans have been placed on hold by the NCDOT with no start date for construction. These properties are appropriate for Traditional Neighborhood zoning due to their close proximity to adjacent Traditional Neighborhood Districts and due to the fact that the primary use of the properties is residential. The following is a proposed statement of consistency: “In accordance with The Land Use Plan, the subject property fits the description for Traditional Neighborhood District more so than that of the Business District. Therefore rezoning the subject property from Business District to Traditional Neighborhood District is consistent with the Lexington Land Use Plan.”

Adjoining property owners were notified by mail and the property has been posted. No opposition has been received in the Office of Business and Community Development. However, one adjoining property owner had questions regarding the purpose for this rezoning and what effect it might have on possible future development of the West Bypass. Mr. Monk met with the property owner and explained that if the West Bypass was developed in the future, the rezoning could revert back to a Business District upon standard rezoning procedures.

Sadie Hagan asked why the property was currently zoned business.

John Monk stated noted that the “West Bypass” was proposed to be constructed by the Department of Transportation that began at Albemarle Street. This proposed street has not been funded by the Department of Transportation and at this time no longer being planned. The property owners are now paying business property taxes for residential uses.

Wayne Alley, City Councilman, stated the business property values are higher than the residential values and this rezoning is more in line with the current use and would save the property owners money on their tax bills.

Approve the following statement of consistency: “In accordance with The Land Use Plan, the subject property fits the description for Traditional Neighborhood District more so than that of the Business District. Therefore rezoning the subject property from Business District to Traditional Neighborhood District is consistent with the Lexington Land Use Plan.”

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MOVER: Bonnie Moore-McCray SECONDER: Janice Richardson

Motion Adopt Ordinance No. 15-36 to amend the City of Lexington Land Use Ordinance Zoning Map to rezone + 3.87 acres located on Albemarle Street, described by the Davidson County Tax Department as Parcel Numbers 11342K0000104A, 11342K0000104B, 11342K0000110, 11342K0000116, 11342K0000118, 11342K0000120, 11342L00A0001, 11342L00A0005, 11342L00B0013, 11342L00B0015, 11342L00B0015A, and owned by numerous property owners from Business District to Traditional Neighborhood District.

MOVER: Barbara McWhorter SECONDER: Christopher Allred

COA - FENCE IN HISTORIC DISTRICT - 138 WEST FIRST AVENUE Presenter: Tammy Absher, Business and Community Development Director

Mr. Jason Hedrick, owner of Hedrick Creative Builders, has submitted an application for a Certificate of Appropriateness (COA) to construct a wooden fence in the front yard of 138 West First Avenue, which is the site of a newly constructed house. The property is within the Uptown zoning district and also within the Park Place local historic overlay district. The home is owned by Ed Hinkle. Construction of new front-yard fences within the historic district requires a Certificate of Appropriateness.

In issuing Certificates of Appropriateness (COA), the Board acts in a quasi-judicial manner, in the same manner it would as the Board of Adjustment issuing a variance or special use permit.

Quasi-judicial means the Board will act essentially judicial in character but not within the judicial power or function as constitutionally defined. It possesses the right to hold hearings on, and issue COAs thereby declaring that a proposal is consistent with adopted design guidelines for the district. It also makes decisions in the general manner of courts (such as hearing testimony). COAs are issued through this quasi-judicial process in order to ensure against special changes to structures within the district being allowed without any criteria or standardization (favoritism). Issuance of a COA is based on the proposal being able to meet criteria already set out in the design guidelines. In addition, the Commission may attach fair and reasonable ad hoc conditions beyond the criteria, which support the proposal in being able to meet the design guidelines. The applicant must be given reasonable opportunity to consider and respond to any additional conditions prior to approval of the COA.

Within the application, Mr. Hedrick has submitted a sketch as well as a description of materials to be used. The following is the excerpt from the Design Guidelines contained within the City's Zoning Ordinance relative to regulating fences and walls within the Historic District. The highlighted section is specific to new front yard fences and provided comment.

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Excerpt:

2.10 FENCES AND WALLS

Many different types of fencing and walls can be found in the City’s historic areas. There are brick and concrete retaining walls bordering the sidewalk and a stone wall that runs along the Salem and West Third Street sides of the Lexington City Cemetery. Masonry walls are often used to define yards and to accent garden landscapes. Some yards along West Fourth and North State Street are lined by wrought-iron fences. Fences are prominent landscape features and help to visually define the scale of residential lots and public spaces. In addition to other local, state, or federal regulations, codes, or requirements, the following standards will be used in considering Certificates of Appropriateness.

17.2.10.1 MAINTAIN AND REPAIR USING APPROPRIATE METHODS 1. Fences and walls should be properly maintained according to guidelines for

masonry, wood, and metal.

17.2.10.2 RETAIN AND PRESERVE HISTORIC FEATURES

1. Retain and preserve historic fences and walls whenever possible including gates, hardware, cast or wrought iron details, ornamental pickets, etc.

2. Masonry walls that were historically unpainted should not be painted.

Repainting previously painted masonry walls is permitted.

17.2.10.3 REPLACE IF NECESSARY USING LIKE MATERIALS AND DESIGN

1. Deteriorated fence and wall elements should be repaired rather than replaced. New elements should match the original in material, texture, and design.

2. Fence or wall replacement should match the original to the extent possible in terms of material, color, texture, and design.

3. Existing vinyl fences located in areas with direct sunlight are likely to become brittle. If replacement becomes necessary, replace with a permitted material including wood, wrought iron, and woven wire.

17.2.10.4 AVOID COMPROMISING AUTHENTICITY

1. New fences and walls shall be designed and installed in a manner that is sensitive to the character of the district, as well as appropriate to the architectural style and period of the historic structure.

2. Wood, brick, stone, decorative block and iron are appropriate materials. Welded wire, when permanently attached to wooded or iron posts is allowed if covered with vegetation.

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4. Powder-coated black, dark brown or dark green chain link fencing is appropriate for rear yards only.

5. Vinyl fences, chicken wire, and above-ground electric fences and are not permitted.

6. Privacy fences, split rail, basket weave, lattice and shadowbox fences are prohibited in front yards.

7. Wooden privacy fences that extend perpendicular from the side of the house shall be located at or behind the rear plane of the house.

8. Rear yard fences are limited to six (6) feet in height.

9. Fences and walls should be used to screen service areas, mechanical equipment, and dumpsters in the commercial areas. Fences, walls, or landscaping is appropriate to screen commercial parking lots.

10. Retaining walls, when visible from a public right-of-way, must be constructed of brick or stone. Landscape timbers and railroad ties may be used when they are not visible from the public right-of-way.

The proposed fence is wooden picket with wooden posts. The proposed height is four feet, but the ordinance limits front yard fences to 3 ½ feet. Approval may be granted with the condition that the fence be not greater than 3 ½ feet in height.

Setback for front yard fences is relatively flexible, as long as it is located out of the right-of-way and doesn’t block vehicular sight distance, meaning that drivers can see past the fence to pull out onto the street. The proposed fence is set at the edge of the sidewalk. Again, the permit may be issued with a condition that it be located out of the right-of-way and not block vehicular sight distance, both of which may be determined and marked by staff on site.

Ms. Absher stated following the staff introduction, the Board will be asked to open a public hearing on the request. Persons wishing to speak for or against the item will be asked to be sworn in by the Chairman. Only evidence given relative to whether or not the proposal meets the criteria contained within the design guidelines is to be considered.

Following the close of the hearing, the Board may discuss the criteria relative to the proposed design of the fence, and determine if any additional conditions would be necessary in order to meet the design guidelines.

The property has been posted and adjoining property owners were mailed notification.

Tammy Absher stated this was the first meeting of combined Historic Preservation and Planning Board and staff and the Board welcomes Marie Galloway to the Board. Ms. Galloway and Mr.

Mickey Sharpe come to the Board from the Historic Preservation and are qualifiers for historic properties along with Board member Chris Allred.

Ms. Absher stated the Board needed to make sure the request is consistent and findings are made for this request. Ms. Absher stated the fence will need to be located out of the right of way and have proper site visibility.

The public hearing was opened and there were no adjoining property owners or others from the audience present to speak to this request.

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Barbara McWhorter asked if there were other fences such as this one in the area. Chris Allred stated there is one similar on Vance Street.

After no further discussion, the public hearing was closed.

Issue a COA for construction of a front-yard fence at 138 West First Avenue in accordance with the Application for Certificate of Appropriateness and attachments as submitted, with the condition that the fence be no greater than 3 ½ feet in height, be located out of the right-of-way, and not block vehicular sight distance relative to nearby driveways, as certified by staff.

MOVER: Christopher Allred SECONDER: Bonnie Moore-McCray

ITEMS BEFORE THE BOARD OF ADJUSTMENT

The Oath of Testimony was given to the following people who wish to speak to the Board of Adjustment on the item below: Josh Monk, Tammy Absher, Todd Hunt, Keith Parker, and Muhammad Faisal

VARIANCE - JERRY HUNT AUTO SALES - DISTANCE BETWEEN CAR LOTS

Presenter: Joshua Monk, City Planner

Todd Hunt with Jerry Hunt Auto Sales, has applied for a variance to the City’s Zoning Ordinance, Section 5.1.32, Outdoor Sales, Lease, or Display of Motor Vehicles (New and Used Car and/or Truck and/or Boat) Lots, for development of a new and used car lot at 418 Piedmont Drive. Mr. Hunt plans to apply for a Major Zoning Permit for this project if the variance is granted, which will be reviewed by the Planning Board and recommended to City Council for approval.

The subject property is described by the Davidson County Tax Department as Parcel Number 1133300000049 and contains 5.0 acres. The site fronts Piedmont Drive, is owned by K&R Partners LLC, and is the former Triad Inn. Jerry Hunt Auto Sales is in the process of purchasing the property from K&R Partners. The property is within the Business Zoning District.

The City’s Zoning Ordinance contains site regulations for all new development of new and used car lots. Section 5.1.32, Outdoor Sales, Lease, or Display of Motor Vehicles (New and Used Car and/or Truck and/or Boat) Lots, requires that there shall be a minimum linear distance of 500 feet between the property lines of any proposed lot and any existing lot being used for the sale, lease, display, and service of motor vehicles. Jerry Hunt Auto Sales is requesting a variance from

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lot. The adjoining property located at 810 Piedmont Drive currently has an approved zoning permit for a new and used car lot, though it hasn't been developed as of yet, and is located 60 feet from the property line of the Jerry Hunt site. The permit for this location expires in August and any request for an extension will be denied due to the fact that regulations for new and used car lots have been amended since the issuance of the permit. Once the permit expires, the applicant would have to resubmit an application for a new and used car lot and would have to meet all the requirements of the revised ordinance. The other car lot within the 500 foot distance requirement is M&L Motor. At its closest point, M&L Motor is located 260 feet from property line to property line. However, this measurement is taken from interior lot lines not seen from the road.

If measured from property line to property line on Piedmont Drive, M&L Motor and the proposed Jerry Hunt site are located 675 feet apart.

Because requests for variances are not common, it is important to review the process and requirements for granting variances. Much of the ensuing information is summarized from The Zoning Board of Adjustment in North Carolina, (Second Edition, Michael B. Brough and Philip P. Green, Jr., Institute of Government, University of North Carolina at Chapel Hill.)

The North Carolina General Statutes enables communities to establish Boards of Adjustment and assign them the task of reviewing and granting variances “when practical difficulties or unnecessary hardships would result from carrying out the strict letter of a zoning ordinance.”

Granting variances is one of the major functions of Boards of Adjustment. This function was created as a “safety valve” to allow a property owner to make use of his property in some way that conflicts with the literal provisions of the ordinance. The granting of a variance is a deviation from a regulation of the ordinance that has been adopted by City Council. Because of the precedent that can be established through granting variances, and the fact that it represents a granted deviation from the law, the Board handles such matters in a quasi-judicial manner, meaning that evidence is presented as sworn testimony and the case is based on factual information. Approval of the variance requires a 4/5 vote of the Board. The two newest members of the Board are identified as alternates and only vote on variances if there is an absence. However, the alternates are free to participate in discussion.

Before we consider the established rules for defining hardships, it’s important to note the two general principles referenced by the courts throughout the years. First, a Board of Adjustment is not authorized to rewrite ordinances. When a particular provision of the ordinance appears to be causing hardship to the community as a whole, instead of granting a series of variances, the Board should recommend an ordinance revision be considered by City Council, the body that adopts ordinances. The second general principle is that variances are not to be dispensed too freely. By granting variances in a liberal fashion, Boards can do irreparable harm to the whole concept of zoning. The same holds true for granting variances that deviate completely from the ordinance as opposed to granting variances that deviate from the regulation by a margin. If property owners could be reasonably assured through the Board’s established precedent that any rule could be skirted through application for a variance, there would really be no need to even have an ordinance.

Before a Board of Adjustment can legally issue a variance, the courts require that it make certain findings relating the case back to the enabling legislation. The emphasis to note here is that the Board must make all of the findings, not just one or two. Those findings must be included in the record of the case (or minutes), and must include the conclusions that the Board draws from the

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hearing and also the factual reasons on which they are based. North Carolina’s enabling act calls for three main findings:

1) that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. The difficulty in determining whether or not to grant a variance lies here where the Board must decide if a “practical difficulty or hardship” applies to the request. Some general rules have been developed and upheld by the courts in order to evaluate what constitutes a hardship.

a. The hardship results from the application of the ordinance. The Board must limit itself to evidence of the hardship resulting from the application of the ordinance to the property involved and other hardship is irrelevant to the decision. For instance, a deed restriction on the shopping center that required all signs be a minimum of 100 square feet would not be considered in the evidence.

§ R This hardship relates directly to the application of the ordinance (and no other rule). It is not the application of a separate policy that is causing the hardship.

b. The hardship is suffered by the applicant’s property. Hardships suffered by nearby properties or the community are not relevant. For instance, the inconvenience suffered from a neighborhood by not having a nearby grocery store is not to be considered as evidence where an applicant were requesting to build a grocery store near the neighborhood but couldn’t meet setback requirements.

§ R In the subject case, the applicant has not cited any circumstance related to other property and therefore meets this general rule.

c. The hardship is not the result of the applicant’s own actions. The applicant may not show hardship that he inflicted on himself or could have avoided. This is applied commonly in two cases: one where the owner knowingly violated the ordinance and then comes to the Board, cites his expenditures in making such violations as a loss if he is not permitted to continue. The other is when the owner buys the property knowing of the zoning restrictions and then complains because the restrictions impair the fulfillment of their plans.

§ R The applicant is being forced to move due to a bridge replacement project initiated by NC Department of Transportation. The applicant has evaluated other properties throughout the community for relocation and finds this to be the only suitable site. The hardship placed upon the applicant to relocate their business was not due to their own actions.

d. The hardship is peculiar to the applicant’s property. If the application of the regulation creates a community-wide hardship, where other property owners would come to the Board to ask relief from the same regulation, then that should be handled through an ordinance revision, not through variances.

§ R Currently, the request for a variance based on the regulations for new and used car lots as outline in section 5.1.32 have not been a common occurrence. The 500 foot rule stems from the concern of the

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envisioned for these gateways, the City amended the Ordinance to require the 500 foot distance between all car lots. Because of the amount of property needed to accommodate the current and future growth of Jerry Hunt Auto Sales combined with City regulations, there were no suitable properties available in the City of Lexington unless a variance is granted. Other properties were also discussed during the search for a new location, each one had their own set of pros and cons.

After a careful review of these locations, the property on Piedmont Drive was determined to best for both the City and Jerry Hunt Auto Sales.

R Overall, the four applicable general rules used to determine hardship have been met for this request. Therefore, the request for this variance supports this first required finding.

2) that the variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit; and

R The intent of the ordinance speaks to maintaining or decreasing non-conforming situations. Since this is a relocation, not a second location, there is no change in the number of car lots. In addition, the new development will be required to meet all current design regulations of the ordinance relative to building materials, landscaping, etc.

Overall, even with a lesser distance to adjacent car lots, the site itself will be more in conformity with the ordinance than the current location is. Therefore, this request for a variance is in harmony with the general purpose and intent of the ordinance and preserves the spirit of the ordinance.

3) that in the granting of the variance, the public safety and welfare have been assured and substantial justice has been done.

R Public safety: Because many communities allow for car lots to be located much closer to each other and even adjacent to one another, there is no evidence to suggest that locating a car lot closer than 500 feet from another car lot would result in a threat to public safety.

R Public welfare: Provisions to allow for a car lot to be closer than 500 feet to another car lot, if overlooked, can render the commercial lot vacant for years and contribute to overall decline of an area.

R Substantial justice: Overall, the public is best served by allowing this site to develop in accordance with the variance. The resulting improvement outweighs the need to have car lots 500 feet apart.

R Therefore, the evidence provided in the application supports this third and final finding.

Overall, the information contained within the application for variance meets the required findings of fact to support granting a variance in order to allow Jerry Hunt Auto Sales to be

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located within the 500 foot distance requirement for new and used car lots.

Josh Monk stated historically, the City of Lexington Board of Adjustment has granted very few variances. The ordinance is generally kept tightly balanced between development needs and protective regulations. Believing that there is a solution to accommodate a business that is being forced to move by the State, and recognizing required distance separation on this site, staff spent considerable time with the engineers exploring possible scenarios. The best scenario, and the one that proves to be safest for the public, is to approve the variance.

City Departments were sent copies of the request. This property was posted and adjoining property owners have been notified. No opposition has been voiced concerning this request.

Keith Parker, 244 Greensboro Street Extension lives close by and is in favor of the variance and would like to see approved. Mr. Parker stated Mr. Hunt’s current business is nice and he maintains his property and he feels this would be an upgrade for the neighborhood and urged the Board to approve.

Josh Monk stated he had spoken with owners today of the property across Greensboro Street and they still to develop this property before major development permit expires for their proposed car lot sales.

Mohammad Faisal, 101 Western Boulevard, representing the owners Mohammad Ashfaq and Shagufta Nazli, purchased their property because of the 500' distance to another used car lot and feels the City should uphold the ordinance. Mr. Faisal stated the owners based their decision to buy property based on his conversations with staff.

Mr. Monk stated the Board does not approve variances very often but in this case there is a hardship based on Mr. Hunt having to relocate his business due to the Department of Transportation bridge replacement.

Eric Henderson stated he felt the intent of 500 feet between used car lots was because the board did not want car lots to be corridors into the City such as on Winston Road. This relocation would be just moving only a short distance and still on a major thoroughfare.

Chris Allred stated he felt the increased traffic should be good for both businesses.

Todd Hunt, owner of Jerry Hunt Auto since 1982, 801 Winston Road, stated they are being forced to move and have looked for another site for a year. Mr. Hunt stated his current location cannot be replaced but this is the best option he has for relocation. The Department of Transportation has requested his business be moved by the end of this year.

Board of Adjustment find that the request for variance to Section 5.1.32, Outdoor Sales, Lease, or Display of Motor Vehicles (New and Used Car and/or Truck and/or Boat) Lots, by Jerry Hunt Auto Sales meets the required findings of fact as based on the factual reasons provided in the application and conclusions drawn above.

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418 Piedmont Drive for development of Jerry Hunt Auto Sales.

MOVER: Christopher Allred SECONDER: Barbara McWhorter

STAFF REPORT

ADJOURNMENT

RESULT: ADJOURNED [UNANIMOUS]

____________________________________

Planning Board/Board of Adjustment Chairman ____________________________________

Planning Board/Board of Adjustment Secretary

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28 West Center Street Department: Business and Community Development Lexington, NC 27292 Category: Zoning/Rezoning/Land Development Prepared By: Trey Cleaton Department Head: Tammy Absher

ORDINANCE

Amendment to City's Code of Ordinances, Appendix A, Land Use Ordinance, to Permit and Regulate Real Estate Signs in Business and Industrial Zoning

Districts- Ordinance No. 16-01

Presenter: Trey Cleaton, Development Services Manager

In response to requests by commercial property owners, staff initiated a text amendment to the City’s Land Use Ordinance for the purpose of amending real estate sign regulations. The process for amending the Zoning Ordinance includes staff analysis and recommendation, Planning Board review and recommendation to City Council, and City Council’s adoption of an ordinance following a public hearing. Following City Council's call for public hearing, notice will be published in The Dispatch on August, 13 2015 and August 20, 2015.

Currently the City’s Land Use Ordinance limits real estate signs to a maximum of four (4) square feet. Real estate signs are permitted in all zoning districts and specific regulations apply,

regardless of the land use or building types. The proposed ordinance change would recognize the need for advertising properties abutting major thoroughfares with larger signs. Often these properties are zoned for business, commercial, and industrial uses, and are located along major thoroughfares with higher speed limits and traffic volumes. While recognizing that the current size limit of four square feet maximum is still valid and widely used for residential and small commercial lots, this is not a one-size-fits-all for the entire City. In an effort to support and facilitate advertising larger commercial and industrial properties, and therefore potentially contribute to overall economic activity, staff is proposing the following amendment to the real estate sign provisions:

Add Sections:

“6.8.17 (3): Exception: Parcels with direct frontage, or fronting service roads directly adjacent to right of way for Interstate 85, Business 85, U.S. 29/70, U.S. 52 and U.S. 64:

a. Maximum size is 50 square feet per side; and b. Maximum number of sides is three; and

c. Square footage may not be combined on any side to exceed 50 square feet per side, and maximum internal angle shall be no greater than 90 degrees; and

d. Wood must be covered, treated, or painted; and e. Maximum height is ten feet; and

f. Copy shall contain only information relative to the sale or lease of the property and necessary contact information; and

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6.8.17 (4): Exception: Parcels with direct frontage, or fronting service roads directly adjacent to right of way for Highway 8:

d. Wood must be covered, treated, or painted; and e. Maximum height is 6 feet; and

g. Sign shall not interfere with vehicular sight distance.”

Recommendation:

August 10

Hold first reading of Ordinance No. 16-01 and call for a public hearing to be held on August 24, 2015, at 7:00 p.m. at City Hall for the purpose of receiving citizen input on amending the City of Lexington's Code of Ordinances, Land Use Ordinance, Appendix A, Section 6.8.17, Real Estate Signs.

August 24

Hold public hearing for the purpose of receiving citizen input and adopt Ordinance No. 16-01 to amend the City of Lexington's Code of Ordinances, Land Use Ordinance, Appendix A, Section 6.8.17, Real Estate Signs.

REVIEW LIST:

Trey Cleaton Completed 07/10/2015 4:37 PM

Joshua Monk Completed 07/13/2015 8:44 AM

Tammy Absher Completed 07/13/2015 12:03 PM

Nancy Spry Completed 07/16/2015 8:57 AM

Planning Board/Board of Adjustment Pending 07/20/2015 6:00 PM

Terra Greene Pending

Tina Lanier Pending

City Council Pending 08/10/2015 7:00 PM

Tina Lanier Pending

City Council Pending 08/24/2015 7:00 PM

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ORDINANCE NO. 16-01

AN ORDINANCE TO AMEND THE TEXT OF THE LAND USE ORDINANCE, APPENDIX A,

OF THE CITY OF LEXINGTON, NORTH CAROLINA

WHEREAS, the City’s Land Use Ordinance is used as a tool for implementing the City’s Land Use Plan, which provides a vision for future development that accommodates physical and economic expansion, while protecting the community’s valuable natural, cultural, and historical assets; and

WHEREAS, to ensure the effectiveness of the Land Use Ordinance, amendments are made from time to time in order to keep the document current and relevant; and

WHEREAS, currently in the Land Use Ordinance, real estate signs are limited to four square feet in size, which is ineffective at marketing larger commercial and industrial properties along the major highways and interstate; and

WHEREAS, in response to requests from owners and managers of such properties to install larger real estate, staff initiated a zoning text amendment; and

WHEREAS, at its regular meeting held July 20, 2015, the Planning Board unanimously recommended City Council amend Section 6.8.17 of the City’s Land Use Ordinance to permit larger signs for advertising commercial properties located along major highways; and

WHEREAS, at its regular meeting on August 10, 2015, the City Council held a first reading and called for a public hearing concerning adoption of this ordinance and scheduled the public hearing to be held August 24, 2015, at 7:00 p.m. at City Hall; and

WHEREAS, notice of the public hearing was published in The-Dispatch, a newspaper having general circulation in Lexington, as required; and

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____________________, a vote was as follows:

Councilmembers _________________________________________________________

voted “Yes,” and

Councilmembers _________________________________________________________

voted “No.”

The Council by vote did ordain that the City of Lexington Land Use Ordinance is hereby amended as follows:

Add Sections:

“6.8.17 (3): Exception: Parcels with direct frontage, or fronting service roads directly adjacent to right of way for Interstate 85, Business 85, U.S. 29/70, U.S. 52 and U.S. 64:

d. Wood must be covered, treated, or painted; and e. Maximum height is ten feet; and

g. Sign shall not interfere with vehicular sight distance.

6.8.17 (4): Exception: Parcels with direct frontage, or fronting service roads directly adjacent to right of way for Highway 8:

d. Wood must be covered, treated, or painted; and e. Maximum height is 6 feet; and

f. Copy shall contain only information relative to the sale or lease of the property and

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g. Sign shall not interfere with vehicular sight distance.”

The amendment described herein shall become effective immediately upon adoption.

This the 24^thday of August, 2015.

______________________________

Newell Clark, Mayor _______________________________

Rebekah C. Gainey, CMC Deputy City Clerk