PUBLIC NOTICE: Special Use Permit to operate a storage yard for towed, wrecked, or disabled vehicles

Post date: Aug 7, 2012 5:16:34 PM

A public hearing on the following case will be held by the RALEIGH BOARD OF ADJUSTMENT on Monday, August 13, 2012, beginning at 1:00 P.M. in the Council Chamber, Room 201 of the Raleigh Municipal Building located at 222 W. Hargett Street, Raleigh, North Carolina.

per, Raleigh Board of Adjustment Agenda

7) A-56-12 WHEREAS, Eileen F. Schwartz, property owner, James Jones, lessee, and Zyad M. Asfari, sublessee, appeal for a Special Use Permit per Code Section 10-2144 to operate a storage yard for towed, wrecked, or disabled vehicles in the Industrial-2 zoning district at 1524 Brookside Drive. EAST CAC

What does this mean?

Brad Carpenter, Mordecai CAC Zoning Chair, discovered the following denied zoning change in the Board of Adjustment meeting notes from October 9, 2006 from the same address.

Additionally, Brad Carpenter looked up the Code of Raleigh that the motion is being filed under.

Board of Adjustment meeting notes A-97-06 – 10/09/06

DECISION: Motion to approve with conditions failed on a 2-3 vote.

WHEREAS, Eileen F. Schwartz, property owner, and Malcolm B. Huffman, Jr. and Bobby Ray Timlie, lessees, appear for a Special Use Permit per Code Section 10-2144 to operate a towing service and a storage yard for wrecked and dismantled vehicles in the Industrial-2 zoning district at 1524 Brookside Drive.

Zoning Enforcement Administrator Fulcher (sworn) gave the following testimony:

This request is for a special use permit to operate a towing service and a storage yard for wrecked and dismantled vehicles in the Industrial-2 zoning district. At the September 2005 meeting a special use permit was granted to the property for a towing service with an outdoor storage yard. The time expired prior to the applicant obtaining the required permits. Per the Board's rules of procedure, they could not re-apply for the same request within a year's period. The applicant meets the requirements for a special use permit provided they install an 8-foot solid fence to screen the yard and obtain the required permits and pay facility fees.

Applicant

Malcolm Huffman, 1528-43 Varsity Drive (sworn), stated the special use permit is for a towing and storage facility which will be used for storing wrecked and dismantled vehicles. They will put up an 8-foot solid fence. The reason their special use permit ran out before is that when they applied to the Secretary of State's office, they found out the business name they had chosen was already taken, so they are now re-applying.

In response to questions from Mr. Silverstein, Mr. Huffman stated (1) the only thing changed since the last time they applied is the name; (2) there will be no stacking of vehicles and cars would be stored basically in just one layer; (3) they will need to meet certain criteria to be involved in the City towing rotation; (4) hours of operation will be 8:00 a.m. to 6:00 p.m. Monday through Friday; and (5) they will landscape the outside of the fence on Brookside Drive, and bushes, greenery and shrubbery are required. They will also be landscaping the office.

Chairman Haywood asked how many people were present who opposed the application. Approximately 11 people raised their hands, and five indicated they wished to speak at the hearing.

Opposition

Lynette Pitt, 2233 Sheffield Road (sworn), stated she is Chair of East Raleigh CAC. She distributed copies of her notarized letter of opposition and copies of Mr. Poole's photographs of the property and affected area. Ms. Pitt said she believes this facility would be injurious to property values and have a negative and adverse effect on revitalization. Belvedere Park, Woodcrest and other residential subdivisions are in the early stages of revitalization. Home ownership is in the process of transitioning from rental units to more owner-occupied dwellings in area and property values are appreciating rapidly. They are concerned with the environmental impact that the storage of dismantled vehicles will have. Cemetery Creek is located on the eastern boundary line and within approximately 200 feet from the subject property. It flows into Pigeon House Creek, which then flows into Crabtree Creek and then the Neuse River. The intersection at Brookside Drive, Automotive Way and Old Wake Forest Road is already an awkward and treacherous intersection. Ms. Pitt pointed out that attached to her letter is a one-year accident history of this intersection, which shows 11 incidents between November 2005 and October 2006. The current and future redevelopment and revitalization potential for the affected area is very strong and evidenced by new projects in downtown Raleigh, the Person Street area, the Atlantic Avenue corridor, and the North Hills redevelopment. In the September 2005 meeting minutes, the applicants indicated the facility would be accessible 24 hours a day, seven days a week. The residents of Plainview Avenue, in the Belvedere Park subdivision, would be subject to noise disturbances from access and activity emanating from the property during late evening and overnight. She does not think an 8-foot high fence along Brookside Drive is adequate. In her opinion, the entire perimeter of the subject property should be fenced with privacy fencing and that the applicant must be required to comply with all landscaping requirements mandated by the City of Raleigh. She is requesting that the Board of Adjustment oppose this application because the facility would be injurious to properties in the subject area and would stagnate revitalization. She also believes there would be violations of the City Code with regard to the floodplain. Ms. Pitt said the letter of opposition is her own, not from the CAC. However, others in opposition asked her to speak on behalf of the CAC.

Donald Mertrud, 1315 Wake Forest Road(sworn), stated there were only two speakers in opposition to this application in 2005, Mr. Fisher and someone else who lived next to the property. Mr. Metrud is speaking on behalf of the Mordecai CAC. In 2005, the Mordecai CAC submitted a notarized letter in opposition. The letter addressed the fact that this area is a City gateway and is directly across the street from the entrance sign to the Mordecai neighborhood. It also addressed water quality concerns and Code violations. As Co-Chairman of the Zoning Committee, he recently received dozens of letters from neighbors voicing their concerns. With the property being in a 100-year floodplain and a small portion of the flood fringe (Mr. Mertrud provided a flood map of the area), the Mordecai feels this application would be in violation of several of the City's Code of Ordinances, including but not limited to, Section 10-4007 (addresses storage of gas or fuels); Section 10-4008(b)(4) (addresses storage of materials in floodway fringe area). 10-4008(c) (limits development of lot coverage; cannot exceed floodway fringe); and Section 10-4009 (addresses storage of any item that might be caustic in floodplain). City Code violations are not their only concerns. Mr. Mertrud respectfully requested that the Board deny the applicant's request.

Bobby Poole, 215 Baggett Avenue (sworn), submitted photographs showing that vehicles are already being stored on the subject property. He had an on-line petition signed by 152 individuals (www.petitiononline.com) but did not know if it was acceptable. Mr. Silverstein told him that Boards usually require that petitions be notarized. Mr. Poole read the petition into the record:

We strongly oppose the planned operation of a junkyard and towing service by Eileen F. Schwartz, property owner, Malcolm Huffman, Jr. and Bobby Ray Timlie, lessees, at 1524 Brookside Drive. Eileen F. Schwartz, Malcolm B. Huffman, Jr. and Bobby Ray Timlie have requested a special use permit per Code Section 10-2144 to operate a towing service and storage yard for wrecked and dismantled vehicles in the Industrial-2 zoning district at1524 Brookside Drive. A towing service and storage yard are not appropriate for our neighborhood because of the following reasons: (1) not a good business for an area that is currently in the early stages of revitalization; (2) negative impact on property values; (3) environmental concerns; (4) hours of operation with regard to the proximity of residences; and (5) traffic.

Mr. Poole said the nature of his testimony and comments relate to value and the injurious effect on property values by this business. He is currently a real estate broker with Coldwell Banker and has 30+ years experience in the real estate business. This area is currently in transition. There are a number of redevelopment activities in the vicinity of the subject property. Numerous residential renovation projects are ongoing in those areas as well. Mr. Poole suggested the City rezone this property. He is representing a client who is interested in buying this land for a quality mixed-use project, but the parties have not yet reached agreement on price. Eleven lots on Plainview Avenue would be affected by this proposal. He stated he is representing a client who is very interested buying a number of lots in this area, including the subject property, for a quality mixed-use project. He stated they have had discussions with one of the property owners present at today’s meeting; however they have not reached agreement on price. He talked about the number of residential lots that would be affected by this proposed Special Use Permit including eleven lots on Plainview Avenue. He pointed out the highest and best use of this land would be something other than a vehicle storage facility and a towing service.

Mary Britt Pernell, 3068 Corn Street in Woodcrest (sworn), stated that over the last two years Woodcrest and Belvedere Park received incredible jumps in property value. The average square foot price at the end of 2004 was a little less than $120 per square foot, and at this time is valued at about $145 per square foot. Several renovation projects are going on at this time, and she and her neighbors would like to see mature trees and homes with character retained. Belvedere Park was built in the 1940s and Woodcrest in the late 1950s. The Hideaway BBQ is opening next weekend, which is the neighborhood's first restaurant within walking distance. Several lots on Plainview Avenue back up to this property, and she said no real estate agent would say it would be advantageous to be backed up to this type of property. Ms. Pernell asked the Board to please support their neighborhood that is in transition by denying this request.

George Fisher, 2720 Bedford Avenue (sworn), said he is the property owner across the street from the subject property and really did not have a lot to add to what has already been said. At the last hearing, he and Dewey Rowland represented the neighborhood at the time. They both thought the item was tabled to a later date and they would be notified. Neither were notified, and he is not sure what happened or how the permit application was approved. They would have been back had they known when it came back before the Board. Chairman Haywood explained how the previous case was handled. Mr. Fisher said he echoes what the other speakers said. He added that he wants the neighborhood to grow in a positive manner.

Mr. Silverstein asked Mr. Fisher several questions, and his responses are as follows. Mr. Fisher said he made some improvements several years ago when he redid the store. There is a Shell convenience store on the property now and a store for lease (it used to be antique store), and three acres beside the property. He leases the store to the oil company. Mr. Fisher said he visits his property quite often, at least on a weekly basis. He has noticed cars being stored on the subject property, but he does not remember many or how long they have been stored.

Tom Fisher, Fisher’s Bakery and Sandwich, 1519 Brookside Drive (sworn), said he echoes the concerns that have been expressed. Additionally, he is in the food manufacturing business and a junk yard would be an adverse situation to his type of business. Rodents and other animals would inhabit the abandoned vehicles. He already spends several hundred dollars a month trying to maintain that situation. Regarding the 8-foot fence, he said as you come down Old Wake Forest Road, there is already a chain link fence there which is approximately eight feet high. You can see the illegal vehicles there over the fence, so he does not think an 8-foot fence would block that view.

Mr. Silverstein asked Tom Fisher if he knew how long have vehicles have been stored on the subject property. Mr. Fisher said he does not know the exact date, but it has been at least a month.

Chairman Haywood took into evidence the notarized letter from Shane Trahan from the 2005 case, the notarized letter from Lynette Pitt, a GIS map of 1524 Brookside Drive, and a series of aerial photos of the subject property and the affected surrounding properties.

Rebuttal

Mr. Huffman said the vehicles that are parked there now are on the side of the property for the paint and body shop, and do not belong to him. One vehicle that sits there part-time is his, and he drives it occasionally. When cleaning the property, he removed mounds of debris from the previous truck rental facility and current body shop, including old tires, vehicle parts, etc. Mr. Huffman pointed out on the submitted photos the cars that belong to Econo Paint. He said the chain link fence is actually six feet high, and an 8-foot fence would hide the vehicles. He stated this would not be a junk yard; it would be a place to store vehicles towed and impounded by Police Department. The property is zoned Industrial-2. He has spent a lot of money on the property, and has followed legal channels to obtain permits.

Chairman Haywood asked Mr. Huffman if he had any evidence to address the evidence from the other speakers that the appearance and operation of this facility would not be injurious to property or a hindrance to improvements in the neighborhood. Mr. Huffman said he hauled 500 tons of gravel to the facility, removed garbage, old car parts, tires, etc. During the last rain his lot was not flooded. The vehicles will only be there until the insurance company picks them up. There will probably not be more than 50 vehicles on the property at any one time. The DMV paperwork will be processed to dispose of the towed/abandoned vehicles, and he can only go as fast as that process allows. Mr. Huffman said the City Code does not limit him to a specific number of vehicles at the facility.

Mr. Huffman also stated the facility will only be open to the public from 8:00 a.m. until 6:00 p.m. However, he can tow vehicles to the lot 24 hours a day, seven days a week. There is no structure on the property now, but he will have to place a small office there. He said it would not be a building, but more like a GE space module. The lot will be gravel.

Findings of Fact

1. Applicant seeks a special use permit pursuant to Raleigh City Code Section 10-2144 to operate a towing service and storage yard for wrecked and dismantled vehicles.

2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing.

3. This property is zoned Industrial-2, which allows an outdoor storage yard for unlicensed, uninspected, wrecked, crushed, dismantled, or partially dismantled vehicles by special use permit. In September, 2005, a special use permit was granted to applicant under a different business name for a towing service with an outdoor storage yard. However, applicant did not secure a building permit, grading permit, or certificate of occupancy within six months of the issuance of the permit, and pursuant to Board Rule of Procedure V. D.3, the special use permit expired.

4. Applicant proposes to operate the facility between the hours of 8:00 a.m. until 6:00 p.m. Monday through Friday, but applicant would also contract with the City of Raleigh for towing services, which would necessitate availability 24 hours a day, 7 days a week in order to participate in the towing rotation.

5. The wrecked vehicles would remain on the premises until they are picked up by an insurance company, or deemed abandoned pursuant to statutory procedures.

6. There are several residential subdivisions in the early stages of revitalization in the vicinity of the proposed storage yard.

7. The subject property is in a one hundred year flood plain, and there are several creeks nearby.

8. There is the potential for hazardous substances to leach from the wrecked vehicles stored on the premises into nearby waterways.

9. The storage yard would have an adverse impact on traffic conditions in the area. Eleven accidents occurred between November, 2005, and October, 2006, at the intersection of Brookside Drive, Automotive Way and Old Wake Forest Road, which provides access to the proposed storage yard.

10. The 8' fence proposed by applicant would be insufficient to prevent a storage yard for wrecked and dismantled vehicles from adversely impacting the value and use of properties in the immediate vicinity.

11. Pursuant to Raleigh City Code Section 10-2141(b), the Board has considered the following relevant factors:

(a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application.

(b) The number of persons residing, studying, working in or otherwise occupying buildings adjoining or in the vicinity of the property mentioned in the application.

(c) Traffic conditions in the area and accessibility of the building for fire and police protection.

(d) Materials of combustible, hazardous, explosive, inflammable nature to be sold, stored, or kept on the premises.

(e) The public records and other competent testimony concerning the location of the zoning district boundary lines.

(f) The relation of the proposed application to conditions in the vicinity which have changed since the zoning district was originally determined.

12. Based on the application, including the plat plan, and the testimony at the hearing, Applicant does not meet the requirements of Raleigh City Code Section 10-2144, in that the impact of the storage yard, including its hours of operation and appearance will be injurious to property or improvements in the affected area.

Conclusions of Law

1. Applicant has failed to meet the requirements of Raleigh City Code Section 10-2144, and Applicant's request for a special use permit must therefore be denied.

Motion

Vice Chairman Doucette made a motion to approve the special use permit application with the following conditions: (1) there would be an 8-foot solid fence; (2) no stacking of cars; (3) hours of operation will be 8:00 a.m.6:00 p.m. Monday through Friday for the public; and (4) there will be landscaping on Brookside Drive. His motion was seconded by Ms. Smith-Morrison and received the following vote: Ayes – 2 (Doucette, Smith-Morrison); Noes – 3 (Haywood, Flynn, Van De Carr).

SPECIAL USE PERMITS APPROVED BY THE BOARD OF ADJUSTMENT (Sec. 10-2144.)

http://library.municode.com/HTML/10312/level4/DIVIICOGEOR_PT10PLDE_CH2ZO_ARTIAPVASPUSPENNF.html#DIVIICOGEOR_PT10PLDE_CH2ZO_ARTIAPVASPUSPENNF_S10-2144SPUSPEAPBOAD

The section I believe they are trying to use for an adjustment:

- Outdoor storage yard for unlicensed, uninspected, wrecked, crushed, dismantled, or partially dismantled vehicles.

Outdoor storage yard for unlicensed, uninspected, wrecked, crushed, dismantled, or partially dismantled vehicles.

To permit in Industrial-1 and Industrial-2 Districts a storage yard for unlicensed, uninspected, wrecked, crushed, dismantled or partially dismantled vehicles after the Board of Adjustment finds that the evidence presented at the hearing establishes each of thefollowing:

(1) The maximum storage pile height shall not exceed twelve (12) feet. Height shall be calculated in the same manner as set forth in§10-2076(b).

(2) The yard is operated by someone engaged in the wrecker or towing business.

(3) The storage area, except along that portion of a lot boundary adjacent to railway tracks where a loading area exists, is enclosed by aclosed fence or solid wall which shall be at least twelve (12) feet tall, unless the Board of Adjustment determines that a lesser height will not be adverse to property or improvements in the affected area. Cross reference: Fences and walls, §10-2085. Sight triangles for fences, §10-2086

(4) Off-street parking shall be provided in accordance with §10-2081

(5) The storage yard is used exclusively for vehicle storage and that no parts from stored vehicles are sold at wholesale or retail on that site.

(6) The proposed storage yard is not closer than one (1) mile (determined by straight line and not street distances) from another storage yard.

(7) The impact of the storage yard, including its size, equipment and machinery used, hours of operation, and appearance will not be injurious to property or improvements in theaffected area.

Cross reference: Reapproval for changes to a special use permit, §10-2144(c)(2). (Ord. No. 1986 837-TC-271, §§ 1, 2, TC-5-86, 9-5-96; Ord. No. 1986 799-TC-267, §§28, 29, TC-21-85, 1-1-87; Ord. No.1993-134-TC-47, §§5—7 TC-1-93, 2-2-93)

(Ord. No. 1997-137-TC-153, §102, TC-18-96, 6-17-97)