27 Sep September 25, 2023 Minutes
THE FIVE HUNDRED AND FORTY THIRD SESSION OF THE BOARD OF ALDERMAN
VILLAGE OF ALAMANCE
September 25, 2023
Present: Mayor Pro Tem Isley, Alderman Crouse, Alderman Hunt,
Alderman Andrews, Alderman Tichy, Alderman Cheap. James Coble (Board of Adjustment ETJ Member)
Absent: Mayor Tichy
Invocation and call to order given by Mark Reich
Motion to approve agenda made by Alderman Hunt, seconded by Alderman Tichy. Motion carries 6-0
Motion to approve August 28, 2023, Meeting Minutes made by Alderman Tichy, seconded by Alderman Crouse. Motion carries 6-0
Swearing in of new Town Clerk
Administrator Nick Farmerie swore in Misty Folwell as the new Town Clerk.
Board of Adjustment Meeting
A motion was made by Alderman Tichy, seconded by Alderman Andrews to move into a Board of Adjustment hearing pursuant to the 4499 Cornerstone Dr side setback variance request. Motion carries 6-0
James Coble, the Board of Adjustment ETJ member is present.
Mr. Farmerie states “The Board of Alderman has just motioned to suspend their legislative duties and has motioned into a Board of Adjustment hearing. The Board of Adjustment for the Village of Alamance is comprised of all members of the Board of Alderman plus James Coble the ETJ member. The Board of Adjustment is a quasi-judicial entity where decisions shall be based on competent, material, and substantial evidence in the record. The hearing for tonight is brought to the Board of Adjustment by representatives for the property located at 4499 Cornerstone Dr. Burlington NC 27215. The property owner is requesting a variance for side setbacks in the R15 district. Side setbacks in R15 are 10 feet.
If you plan to speak on this topic tonight, please come forward to our clerk and be sworn in at this time.”
Clerk Folwell swore in Aaron Noble, Katie Spencer (via a telephone call), and Mr. Farmerie.
Mr. Farmerie stated on January 23, 2023, the Board of Adjustment heard a side setback variance request from 4499 Cornerstone Dr. but did not make a motion for or against the variance. On or before August 1, 2023, State Code Enforcement mailed out a notice of violation to 4499 Cornerstone Dr. On September 6th, 2023, the zoning administrator mailed the Order of Compliance to 4499 Cornerstone Dr. On September 6th, 2023, the property owner of 4499 Cornerstone Dr. appealed the decision of the zoning administrator in writing. On September 6th, 2023, the Zoning Administrator mailed out a notice of a hearing for the Board of Adjustment for the Village of Alamance pertaining to side setbacks at 4499 Cornerstone Dr. The zoning administrator also posted this notice in the Village of Alamance Town Hall, added it to the front page of the Village of Alamance’s website, and advertised the meeting with local newspapers.
The zoning administrator recommends denying factors 1,2, and 3 relevant to the issuing of the variance and affirming the Notice of Violation and Order of Compliance.
Mrs. Spencer stated through a telephone call, “I am the neighbor that shares the property line closest to the pool house that was built. I wanted to give my opinion on the cosmetic aspect of it as well as the closeness. We have never been affected or offended by it. It offers privacy to us; it doesn’t feel as though it’s an obstruction to our property. It doesn’t keep us from doing anything with our property that we want to do. Cosmetically it fits with the neighborhood, it’s not an eyesore. We don’t have any concerns with it and I feel we would be the ones most affected by it.”
Mr. Aaron Noble gave all Board of Adjustment members, Mr. Farmerie and Clerk Folwell a packet he put together. He stated he appreciated the opportunity to stand before the Board of Adjustment to request the variance for 4499 Cornerstone Dr. Mr. Noble stated, “I am well aware of the setback requirements and have documentation to walk through briefly.” “ Again, I am well aware of all the setback requirements and thought I had met them. There were some unknown circumstances that became known to us later which has caused me to be here today.” Mr. Noble referenced page 2 of the packet, showing his application for a building permit. He noted the side setbacks at the bottom of the permit were there. He directed the Board to page 3 and read the timeline. April 27, 2022: Obtained Residential permit Application from Village. May 31, 2022: Pool house plan reviewed and passed by Alamance County Inspection Department. July 14, 2022: Electrical rough-in inspection passed. August 9, 2022: Footing and framing inspection passed. September 21, 2022: Final electrical inspection passed. October 11, 2022: Final plumbing inspection passed. October 12, 2022: Received call from Mr. York informing me finial inspection and issuance of Certificate of Occupancy for pool house would be held in abeyance pending proof of compliance with the side yard setback requirement. Mr. Noble stated he finds the October 11th and 12th dates very interesting.
Mr. Noble stated, “page 4 shows a copy of the survey done by Jeff Rudd, dated November 9th, 2022. You can see where the pool house is circled, on the side of the house, where it adjoins the Spencer’s. On the next page, the area is enlarged to show that the pool house is five- and one-half feet away from the property line. I also circled the corner of the stake that marks that corner, which was actually identified by the surveyor. The surveyor found the stake which had been overgrown by a tree and was not known to us at the time they measured for the pool house. Ironically, there are two stakes located at the corner of our property. One stake is four and a half feet away from the one encased in the stump. This was the stake identified as marking the property line and that’s the one that they went by. At the request to have the survey completed is when the second stake was identified.” Mr. Noble directed the board to the photo on page 6 showing both stakes. He stated that “the stake farthest away is the one they had identified as the property line. The surveyor placed the other stake by the stump, where the original stake had been, and is now encased by the stump. There is exactly four and a half feet between them”. Mr. Nobel stated, “surveyors are very good at what they do, and I am not here to challenge the results of any surveys that are done, either for our purpose or any other purpose involving our problem.” He stated, “it is not unusual for two surveyors to survey the same piece of property and be somewhat off.” He referenced a passage from jbpro.com that says “one significant factor that contributes to survey differences is the surveyor who conducts the survey. No two people measure the same way, and similarly, no two surveyors will either.” Mr. Noble stated,” there can be discrepancies in surveys, and that is why I’m here.” “Page 8 shows the structure, and you can see where the Spencer’s have installed a beautiful privacy fence, I think its 6 feet tall, I can barely look over it. It enhances their property and provides their family as well as our family additional privacy The side view of the house, looking down from the front of the street, down the back of the property line, shows their fence and also shows the pool house in proximity to it. Page 9 is a shot of the interior of the pool house. It was mentioned in a discussion when I was asked if the pool house could possibly be moved. The answer to that is no, it’s a very difficult thing to do. Our water and sewer lines are well into the property, we have a functioning bathroom. The steel plate of the pool house is actually the anchor to the concrete slab, upon which it rests. And then secondly, if the house could be moved, the actual support columns on the front would reach down into the pool. That would be a very difficult thing to do. The bottom photo on that page shows the proximity of the pool house to the rear of the property and shows the Spencer’s fence and our pool house and the space in between. The final photo shows access to the backyard from the driveway because there is an easement on this property, 10 feet on either side. I have taken it upon myself to make sure we keep that ditch clean. It will fill with silt or whatever the case may be, and it will puddle up in the back of our yard. I take that responsibility to make sure it can flow unimpeded. What I primarily want to show with this particular slide is the fact that if access is needed to the rear of this property, it can be accessed from the driveway and then right there you’ve got the drainage ditch. So, again, this was not something that was intentional it was something that was totally unexpected. There was no willful intent to violate the side setback agreement. It’s just one of those things that happen. I just ask for your consideration to agree to provide the variance. I know after having worked in local government, there is always a concern for setting precedence. One thing we do know about Board of Adjustment proceedings and request for variances, is that every decision stands on its own. So, depending on the circumstances associated with that request is what factors into that decision. With that being said, I will pause for any questions.”
“As far as a hardship, the only hardship that would be incurred is really to us. Basically, I took $23,000 out of my retirement to build a nice recreational place for my family. They enjoy it a great deal and we do occasionally entertain, hopefully, it’s not too rowdy. It’s just nice for people to be able to go to the restroom outside instead of walking through the house in wet bathing suits, trekking on hardwood floors. It is a convenience, something we value a great deal. We just ask you for your consideration in granting this request. I will pause for questions.”
Alderman Cheap stated that he didn’t have a question for Mr. Noble, but he had a different question. He stated that “If I look at the letter of the law, I have to rule against you, but I understand what happened because I’ve bought houses before where the realtor has said there’s your pin and you take that for truth. Is there not something we can do? The neighbor has no problem, except that that neighbor might move, and the new neighbor might have a problem. I guess what I’m saying is I understand your predicament and I feel sorry for you, and I want to know if there is some other way, we can handle this”. Mr. Noble stated “They had approached the Spencer’s about the possibility of purchasing a small portion of their land, 5 feet of their property to give the footage needed to meet the code but unfortunately, they weren’t able to work that out. I do understand the point and it’s a very valid point. I guess my response to that is if it’s approved it’s there. Hopefully they will be our neighbors for a long time, but I know things change. We have a great relationship with them. Hopefully it wouldn’t cause any problems. The privacy fence they put up is six feet tall. From the pool deck, you can just see the top of the house. It’s not something that would degrade the value of the property, its not something that anyone would find to be aesthetically displeasing. It’s just one of those circumstances that cropped up. Again, if we had known that there was a second stake, I wouldn’t be here tonight. We want to abide by the Village’s guidelines, we want to be a good citizen and good resident. That’s what brings me here to appeal to you tonight.”
Alderman Andrews stated, “I don’t have a question for you Mr. Noble, but I would like to ask our attorney to give us some legal advice on this.”
Attorney Koonts stated “Part of the reason that you’re back tonight, I know we set out tonight on the variance request, the different motions, that provide a little more structure to the decision-making process. I know you’ve done a lot of variances over the years that were more informal in the process but what we really should be doing is going through each one of these motions and voting on each motion independently. You’ll notice that the variance application tracks with the motions. The very first thing that the applicant puts down is ‘would there be any unnecessary hardship resulting from the strict application of the ordinance.’ You can review the application, starting on page two and walk through each one of those motions.” Mr. Farmerie stated, “What he’s referring to is in your packets, its document two. This is the variance application that you received from Mr. Noble.”
Attorney Koonts stated “That application is our form. The first one is, ‘are there practical difficulties or unnecessary hardships in carrying it out. Would it have an unjust impact on the value or use of this property?’ The applicant states that denial of this request will not adversely affect the value or use of this property. Of course, it’s going to impact the money that he put into the house. It’s a situation where nobody was trying to break the rules but in fact, simply, the wrong stake was used and that’s what he puts in his application. All we are trying to do is walk through each one of these motions, look at his application and listen to the evidence and have you make a decision on each one of these motions. If any of those motions turn out against the applicant then you have to deny the request or, and I don’t know how you could do it in this case, but you could approve it in part with conditions. I’m not sure what those conditions would be because either you meet the ten-foot setback, which he does not, or you don’t. You would just have a motion that either an unnecessary hardship would or would not result in the strict application of the ordinance and then go to number two and number three. I think that’s what Nick (Mr. Farmerie) was saying.” Mr. Farmerie stated, “he’s referring to the suggested motions that you have laid out in front of you, for the seven different motions that will eventually be made in regard to this.”
Attorney Koonts stated “Really walk through the first six because the seventh one, the final one, is really the final verdict based on the six above. You just work through and vote on those. Variances are rarely easy, they’re the tough ones when the applicant has created the problem by mistake. That’s one of the items on here, number three, the hardship related to the requested variance does or does not result from actions taken by the applicant or property owner. It doesn’t really talk about intent. Mr. Noble is right that each decision stands on its own. Once you grant it, it’s either there or it’s not there. If you granted it, any future neighbors or owners would have notice of that. If you didn’t grant it that would also be the case. Any other questions about that?” Alderman Andrews said no. Attorney Koonts stated, “That’s why we’re walking through this process.” Alderman Andrews thanked Attorney Koonts. Alderman Tichy stated “I have a question about the easement, not only is this a property line, there’s an actual storm drain that goes down the middle of this area. I don’t know how often we have to repair storm drains. If the Village had to get down to clean out the drain, if something were to happen anywhere between the end of that storm drain and the top of it and we had to replace the cement, I’m not an engineer so I don’t know if this is just something I’m making up or if this is something that’s feasible or could happen. If we had to get in there and replace something in that storm drain and it just happened to be in the vicinity of the building, now it’s in our easement. My understanding is it comes down and he’s responsible for it because he built in our easement.” Alderman Crouse stated, “I’ve seen storm drains settle, and that’s one thing I was looking at was the proximity of the drain to the building.” Alderman Tichy stated “that’s one thing in Heritage Glen, If we approve a nonstandard mailbox we tell them to put it out of the right of way because if we have to come in a make a road repair and that’s in the way, we will take it down and we don’t have to put it back up for you. I’m just worried that this is one of those situations where the easement is there to protect the homeowner as much as it is to protect us.” Attorney Koonts stated “In any situation where there’s a preexisting easement and the property owner puts something in that easement, a tree, a building, a fence, then yes it can be removed in order to service it. It does not have to be put back and that does happen very often.” Alderman Tichy stated, “This might go one way here but twenty years down the road they might say why did they approve this, if they are running into other issues.” Alderman Crouse stated “My fear is that if we had to do something on that storm drain line, just looking at this picture, to get a piece of equipment in there you would probably have to take the neighbors fence down. If you get to digging and had to remove sections of pipe, you’re going to have compaction not only under that pipe but on the sides. That building being close, let’s say you get it put back but down the road, it starts to fall.” Alderman Tichy stated, “You mean settle backward.”
Mr. Noble stated he “definitely understands”. “As a property owner going into this situation I understand if they have to make repairs, they have to have space to make those repairs” Alderman Tichy asked about the zoning and Mr. Farmerie confirmed it is R15 with ten-foot side setbacks. Mr. Farmerie stated “The zoning administrator recommended to deny factors one, two, and three relevant to the issuing of the variance and to affirm notice of violation and order of compliance. That speaks to each one of these suggested motions, the ones that are bolded and underlined speak to the zoning administrator’s recommendation.”
Mr. Noble asked for a copy of the motions. He was given one by Clerk Folwell. Mayor Pro Tem Isley stated “The two stakes in the back you say are four and a half feet off. Do you have a survey from the stake you say is not the correct stake?” Mr. Noble stated “When the surveyor came on the property, he just used the property measurements and actually marked the corners from that. So, we took it from the stake that was visible, and we thought that was the correct stake.”
Mr. Farmerie asked if there were any more questions from the board. Mayor Pro Tem Isley asked for clarification on the motions. Mr. Farmerie stated, “You will first call the motion, one way or another, have a vote on it and then we will go to motion two and so forth.” Mr. Noble asked about defining the term hardship. Mr. Farmerie stated, “that is really up to the board to determine, what constitutes a hardship according to the Board of Adjustment.” Mr. Farmerie informed the Board that Mayor Pro Tem Isley would not be able to call the motions in his current position as the chair.”
A motion was made by Alderman Cheap that an unnecessary hardship would not result from the strict application of the ordinance this is seconded by Alderman Tichy. Motion carries 7-0
A motion was made by Alderman Cheap that a hardship related to the requested variance does not result from conditions that are peculiar to the land, structure, or building involved, such as location, size, or topography, and which are not applicable to other lands, structures or buildings in the same district. This is seconded by Alderman Tichy. Motion carries 7-0
A motion was made by Alderman Tichy that the hardship related to the requested variance does result from actions taken by the applicant or property owner. This is seconded by Alderman Cheap. Motion carries 7-0
A motion was made by Alderman Hunt that the requested variance is not in harmony with and consistent with the spirit, purpose, and intent of the zoning ordinance, and will be injurious to the neighborhood or to the general welfare. This is seconded by Alderman Cheap. Motion carries 7-0
A motion was made by Alderman Cheap that the literal interpretation of the provisions of this ordinance would not deprive the applicant of a right commonly enjoyed by other properties in the same district under the terms of this ordinance. This is seconded by Alderman Tichy. Motion carries 7-0
A motion was made by Alderman Cheap that granting the variance will confer on the applicant or property owner any special privilege that is denied by this ordinance to other lands or structures in the same district. This is seconded by Alderman Tichy. Motion carries 7-0
A motion was made by Alderman Cheap that based on the findings of fact and the evidence presented, the Village of Alamance Board of Adjustment denies the requested variance and affirms both the notice of violation and order of compliance. This is seconded by Alderman Andrews. Motion carries 7-0
Alderman Andrews expressed sympathy for Mr. Nobles situation.
Alderman Tichy made a motion to go back into legislative session, seconded by
Alderman Andrews. Motion carries 6-0
There was no public comment.
Mr. Reich informed the board that work on the Cardinal Lane outfall began September 5th. There was some unsuitable material encountered in the area of a former wastewater plant. It has been removed and replaced with suitable bedding material. New pipe is being laid from manhole one to manhole four. The contractor plans to test completed sewer lines and convert flow when ready. At this time the project has not incurred any extra cost.
Street paving in Heritage Glen is set to be completed by September 25th. The board will need to approve a resolution for AIA grants. Mr. Reich has received a new proposal from Precision Safe Sidewalks (PSS). The curb inlet work has been taken off their estimate. Neil Boone has given an estimate to do the curb inlet work at $3,300. Mr. Reich recommends accepting Precision safe sidewalks estimate of $5,678. And Neil Boones estimate of $3,300. He also suggested that Neil Boone does the work of removing and replacing sidewalk areas and then have PSS come in to cut curb elevation to match new sidewalk work. Mr. Reich suggested setting aside $10,000 altogether for the project.
A motion was made by Alderman Crouse, seconded by Alderman Hunt to accept the contract with Neil Boone and Percision Safe Sidewalks for $10,000. Motion carries 6-0
Mr. Allred reported all collection and pump stations are working well. The THM testing passed. Mr. Allred informed the Board that the State sent out a reminder email that the mandatory lead service inventory is due October 24, 2024. Mr. Allred stated it is not an easy process, but he and Mr. Farmerie will be working on it.
Black Mountain Update
Mr. Farmerie informed the board that it would be the summer of 2026 before the Village will be eligible to participate in the NCLM program for switching over accounting information. They have also offered accounting assistance for three years with the program. There is a higher cost associated with operating Black Mountain but it is a much more user-friendly program and is geared towards smaller municipalities. Mr. Farmerie told the board they could opt to buy the system now or wait until 2026 and receive it through the NCLM. The board would prefer to wait until 2026.
Mr. Farmerie informed the Board that Clerk Folwell had taken charge of setting up Everbridge and the expectation is to have it up and running by Thanksgiving.
Mayor Pro Tem Isley read aloud a resolution for applying for AIA grant money.
A motion was made by Alderman Tichy, seconded by Alderman Crouse to approve the resolution as read. Motion carries 6-0
NC 457 Personnel Match
A motion was made Alderman Cheap, seconded by Alderman Tichy to match personnel at 100% for the first 5% of contributions. Motion carries 6-0
PDA Equipment Proposal
Mr. Farmerie informed the board that Mr. Allred has recommended the system change from wired cellular service for the Village’s auto-dialers to a wireless connection. Mr. Allred told the Board that it is less expensive and more reliable then the current hardware.
A motion was made by Alderman Tichy seconded by Alderman Crouse to accept the proposal from PDA Equipment. Motion carries 6-0
Alderman Cheap asked about an update on the Shackleford property. Mr. Farmerie stated they had a hearing with the property owners and State Code Enforcement this week. He said that Mr. Shackleford was fully informed of the actions the board could take if the property was not brought into compliance. Mr. Shackleford indicated he had the means and ability to get the buildings repaired to the board’s satisfaction.
Alderman Andrews made a motion to adjourn, seconded by Alderman Cheap. Motion carries 6-0
Misty Folwell, Clerk____________________________________