title
Variance from Section 5.30(L)(1) Maximum Building Frontage and Cumulative Outdoor Display Area - 401 E. US Highway 64
presenter
Presenter: Planning & Development Services Manager Josh Monk
summary
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Summary:
Background:
The City has received a Variance Application submitted by L. Ross Gaddis, acting as agent for the property owner, AJM Lexington NC, LLC. The applicant is requesting a variance from Section 5.30(L)(1) of the City's Unified Development Ordinance (UDO), which establishes limitations on outdoor display areas, including maximum building frontage and cumulative outdoor display area.
Review:
The subject property is zoned Industrial and is located at 401 E. US Highway 64, the former Piedmont Candy Distribution Center. The applicant proposes utilizing the existing 92,887-square-foot building as shown on the submitted site plan. The property is situated near the northeastern city limits. Davidson County borders the site to the north, east, and south, while properties to the west are zoned Industrial and Business. The surrounding land use pattern is generally industrial in nature, with limited adjacent development that would be directly affected by the requested variance.
The City’s United Development Ordinance section 5.30 Outdoor Display on Private Property set forth the following standards;
A. The merchandise shall be owned by the merchant holding the Certificate of Occupancy for the principal building and shall be related to or also for sale at the principal building in front of which the merchandise is located.
B. The merchandise shall be on the same parcel, or a contiguous parcel under the same ownership as the principal building.
C. Merchandise shall be located adjacent to the principal building and not be located in front of any other building.
D. Vending machines are not permitted for outdoor display.
E. Merchandise may not hang from poles or trees.
F. Merchandise may not be placed in required landscape areas, parking lot islands, or impact buffers.
G. Outdoor display of merchandise is prohibited on a vacant lot, the site of a vacant building, the site of a business outside of open operating hours, or the site of a closed or out-of-business use.
H. Merchandise or fixtures may not interfere with vehicular sight distance.
I. Outdoor display areas may not contain additional signage.
J. Outdoor display is prohibited within the street right-of-way, except in accordance with Outdoor Display on Public Sidewalk (5.31).
K. Outdoor display areas shall not contain or utilize metal carports, trailers / tractor-trailers, storage buildings, portable storage units, or similar structures as storage and/or display of merchandise.
L. The parking lot area may be used for temporary outdoor display, but the display area may not displace parking spaces required to meet the parking requirements. Outdoor display within parking lots shall be situated and designated in such a way as not to cause a conflict between pedestrians and vehicles or impede traffic patterns.
1. Front yard display areas or areas abutting a public street may extend for no more than 25% of the linear width of the building where the building faces a street. (A building that is 100 feet in width may have no more than 25 feet of the frontage containing outdoor display.) The cumulative outdoor display area(s) outside of a designated semi-enclosed display area, shall total no more than 10% of the size of the footprint of the principal commercial building. All fencing shall comply with design regulations for fences, walls, and hedges. Merchandise may extend upward no more than 6 feet from the ground. Merchandise shall be removed from cardboard boxes and larger shipping containers and shall be displayed in a secured, neat fashion. Boxes, other than shoe boxes or packaging are not permitted in display area. Only merchandise such as planters and other devices that are normally placed directly on the ground are permitted to sit directly on the ground. Otherwise, merchandise must be displayed on tables, stands, or racks.
2. Attached or detached designated display areas may be established adjacent to the principal building in the side or rear yard not abutting a public street and shall meet setbacks required for the principal commercial building. The display area shall be visually designated by use of fencing, wall, landscaping, or other barrier approved by the Administrator. The maximum height of fencing used as a barrier is 12 feet. If chain link, mesh, or wire fencing is used, it shall be coated in black or dark green. Chain link fence slats are prohibited. Barbed wire, razor wire, and other similar materials are prohibited. The display area may have a roof covered in metal, wood shakes, shingles, or roof-type covering made of canvass, screen, glass, Plexiglas, wood, or other material approved by the Administrator. The designated display area may cover an area no greater than the footprint of the principal building. (Greenhouses and Nurseries are permitted otherwise with specific conditions.) Display and storage racks within the designated display area may not extend above twenty feet or the height of the principal building, whichever is less.
Applicant’s Request
• The applicant requests a variance to permit outdoor display areas along 92% of the building frontage, allowing merchandise to be displayed along the internal walkway directly in front of the building.
• The applicant requests a variance from Section 5.30(L)(1) to exceed the ordinance limitation that restricts the cumulative outdoor display area, outside of a designated semi-enclosed display area.
Authority and Intent Behind Variance Request:
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 considering 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.
Findings of Fact:
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 hearing and also the factual reasons on which they are based. North Carolina’s enabling act calls for four main findings:
1. Unnecessary hardship would result from the strict application of the regulation. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance is not a self-created hardship.
4. The requested variance is consistent with the spirit, purpose, and intent of this ordinance, such that public safety is secured and substantial justice is achieved.
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.
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Recommendation:
recommendation
Staff recommends that the Board of Adjustment consider the evidence and testimony presented during the quasi-judicial hearing and evaluate the request based on the applicable standards and required findings of fact established by the Unified Development Ordinance.
Once the Board has evaluated the findings of fact, the Board should clearly state the findings supporting its decision and ensure that the final motion identifies the specific standards and findings of fact upon which the decision is based.