The Alleghany County Board
of Commissioners reconvened the variance meeting from Tuesday, July 11,
2006 on Monday, July 17,
2006, at 11:50am in the Conference Room of the County Office Building, 90 South
Main Street, Sparta, North
Carolina.
Present: Chair Eldon Edwards, Vice-Chair Warren
Taylor, Commissioner Graylen Blevins, Commissioner Sandy Carter Herndon,
Commissioner Ken Richardson, County Attorney Donna Shumate, County Manager Don Adams, and Clerk to
the Board Karen Evans.
Chair Eldon Edwards reconvened the
meeting.
County Attorney Donna Shumate
stated that she has investigated vested rights concerning
the situations that Mr. Marlow presented.
She stated that he requested a variance, and it was put before the Board
as a variance/appeal. She explained that
the ordinance has procedures in place for a variance, and he worked with the County Planner to get the
information that was provided for the Board to make a determination on the
variance. She said that there is a
little bit of information on how to do an appeal and technically that wasn’t
followed but since the Board decided to hear that, any objections that could
have been made about not following that procedure have been waived. She explained that if the appeal process had
been followed then there would have been different information presented
regarding the issue that is before the Board.
She said apparently the appeal is based on the issue of vested rights under
the ordinance, and the ordinance doesn’t tell anyone exactly what the Board would
need to know in order to grant vested rights.
She explained that she had read through the ordinance completely again,
and there is a small section concerning vested rights and a small section
concerning appeals. She stated that
there isn’t really a written procedure about how to appeal a decision about
vested rights. She further stated that
in fairness to Mr. Marlow that he is allowed an opportunity to present the
additional information that probably does exist for the Board to properly
consider a vested rights appeal. She
reminded the Board that it isn’t his fault that the information wasn’t provided
because he was proceeding under a variance procedure.
County Attorney Donna Shumate
read the section in the ordinance talking about vested
rights including the conditions with that.
She stated that (a) is the closes one to what Mr. Marlow has presented
to the Board. She said that just because
says a parcel of land existed at the time of enactment of the ordinance isn’t
enough because all land in Alleghany County existed at
the time of ordinance adoption. She gave
an example of someone owning land before the adoption date and now they decide
they want to put a gas station on it and not comply with the other conditions
of this ordinance.
County Attorney Donna Shumate
talked about the information presented, so far, is that the
use is changing but the use he is requesting did not exist at the time of the
enactment of the ordinance and the structures that he is wanting to put on
there did not exist at the time of the enactment of the ordinance, and they
aren’t even there now. She explained
that on the clear reading of what the ordinance says the Board doesn’t yet have
vested rights where they can say yes they are going to grant that. She further explained that if it isn’t clear
from the plain reading of the ordinance, then another other source is the
General Statutes. She said there is a
statute concerning vested rights but it doesn’t apply either because it
envisions that the county has a zoning ordinance already in place and that he
would have to have complied with that zoning ordinance, basically to had a site
plan that would have been approved by the county before this ordinance was
passed. She reminded everyone that the
County doesn’t have such an ordinance in place so there is no way he could have
complied with something that didn’t exist so that statute doesn’t apply at
all. She stated that the only other way
to show vested rights is through common law, which is case law. She further stated that this is where things
get complicated and vested rights law is not straight forward. She talked about the Court of Appeals in North
Carolina’s Supreme Court has a case-by-case analysis of every situation that
has come before them. She further talked
about looking at one and you understand it then you look at another one and it
won’t work when you consider the first one.
She stated that it is something that has to be decided on a case-by-case
basis. She said that what is clear is
that they have established four criteria for establishing common law vested
rights.
County Attorney Donna Shumate
stated that it isn’t fair to Mr. Marlow to make a ruling on
vested rights right now because he hasn’t known what the criteria were and
neither has the Board. She further
stated that she thinks it is only fair to him and the Commissioners to give him
an opportunity to see what these four criteria are and to have an opportunity
to come up with the additional evidence that very well may exist to comply with
these four criteria. She stated that her
recommendation, at this point, would be for her to give this information to Mr.
Marlow and the County Planner because she
also needs to have this information, and there may be documentation she may
need to gather to present to the Commissioners about why there was a
denial. She reminded the Board that she
isn’t saying no nor is she saying yes, she is saying that the Commissioners
don’t have enough information to make that determination now.
Commissioner Sandy Carter Herndon asked
how lengthy the four points are; pages and pages or bullets.
County Attorney Donna Shumate
stated that they are bullets but the interpretations are
pages and pages.
Commissioner Sandy Carter Herndon asked
for the bullets.
County Attorney Donna Shumate
stated that quoting from one of the cases that sets it out
fairly clearly, common law rights vest when the party has made, prior to the
enactment of the ordinance, expenditures or incurred contractual obligations
substantial in amount incidental to or as part of acquisition of a building
site or the construction or equipment for the proposed building; the
obligations and/or expenditures are incurred in good faith; the obligations
and/or expenditures were made in reasonable reliance on or after the issuance
of any required permits; the ordinance is detrimental
to the party. She reminded them
this information is from case law because there is no General Statute on common
law vested rights and the Statute itself doesn’t apply because of the zoning
ordinance requirement.
Commissioner Sandy Carter Herndon and
County Attorney Donna Shumate talked about
the four criteria being detrimental to the party and the variance is being
detrimental to the land.
County Attorney Donna Shumate
reiterated her recommendation is continuing this hearing to
give the County Planner and Mr.
Marlow an opportunity to come up with the additional evidence for these
points. She stated that it may be more
helpful for them to give the four points and give specific questions that would
need to be answered in order for the Commissioners to be able to analysis these
four points.
Commissioner Warren Taylor asked the County Attorney if she thinks
conditions exist after hearing the evidence in relation to those four points.
County Attorney Donna Shumate
stated that she has a list of 5 to 10 questions that would
need to be answered before she can answer that question. She further stated that after she has those
answers, she can tell the Commissioners whether she thinks it exists or not but
at this point some of the information presented raises more questions than
answers.
The Board of Commissioners and County
Attorney Donna Shumate talked about dates
and times to have another meeting regarding this topic.
Commissioner Warren Taylor asked if
this has to come back to the Planning Board.
County Manager Don Adams stated that
the Commissioners can meet on this because the Commissioners have the powers to
rule on a variance and an appeal and the Planning Board can’t decide on
both.
Commissioner Warren Taylor suggested
that Amy Pardue get with the County Attorney, and the
Commissioners schedule another meeting as quickly as possible.
The Board and County Attorney Donna Shumate
talked about dates and times for another meeting. The Board decided on August 1, 2006 at 6:30pm at the County Office Building.
Chair Eldon Edwards apologized to Mr.
Marlow for this process taking so much time.
He explained that this is the first hearing since the ordinance was enacted,
and he hopes they can get it resolved as quickly as they can.
Commissioner Ken Richardson made a
motion at 12:02pm to recess
this meeting until the 6:30pm meeting on August 1, 2006.
Commissioner Warren Taylor seconded the motion. Vote 5:0.
Respectfully Submitted,
Karen Evans
Clerk to the Board
Attest:
Eldon Edwards
Chairman