 Good morning and welcome to the June 21st, 2022 meeting of the Durham Board of Adjustment. This board is a quasi-judicial board of record and as such all testimony will be recorded. Proceedings of this board will be governed by the Unified Development Ordinance. As chair of the Durham Board of Adjustments, I'd like to explain the procedures used for board hearings. The hearings are quasi-judicial. The process is similar to a court proceeding. First a staff member of the City County Planning Department will present an overview of the case. Then the applicant presents its evidence. The opponents, if there are any, will present their evidence. The applicant may then present its rebuttal. Board members are asked to refrain from questions until each speaker has completed his or her presentation. All testimony is given under oath. In a few moments, I will give the oath to all witnesses as a group. All witnesses are asked to sign the roster. Actually, when you walk in the room back there, if you have not done so already, testimony should consist of facts each witness knows, not hearsay. All witnesses should come forward to the podium and identify themselves each time they approach the podium. Speak directly into the microphone so your testimony can be recorded. Before each application, I will read the findings that must be made to approve an application and any testimony should be relevant to the criteria that the board uses to determine whether to approve an application. Any written evidence or exhibits must be presented to the chair and a determination will be made whether it should be accepted. Written evidence or exhibits can be inspected by the opposing party. All evidence written or oral or exhibits can be objected to. Witnesses are subject to cross-examination. Opposing representatives will have an opportunity to question witnesses after all witnesses for the other side of testify. If you wish to cross-examine, you may raise your hand when I ask for other speakers in favor or against the application and I will recognize you. I would also like to remind everyone in attendance to be courteous. Ask questions respectfully. If there are numerous people who would be providing the same or similar testimony either for or against an application, in the interest of time, I would request that you please select a representative to present that testimony. I would like to note that board members may have visited each side under consideration as part of their preparation for this meeting. The board will vote on each case after presentation of the evidence for and against an application and discussion among themselves concerning the case. North Carolina law requires that in order for an applicant to request, applicants request to be granted for a city application before the board, five of the seven voting members must approve the request. All decisions of this board are subject to appeal to the Durham Superior Court. Anyone in the audience other than the applicant who wish to receive a copy of the formal order issued by this board on a particular case, excuse me, must submit a written request for a copy of the order at this hearing. Forms for this purpose are available from the City County Planning staff. All right. Terry, would you like to call the roll? Jacob. Here. Chad Meadows. Here. Natalie Bouchin. Ian Kip. Here. David Paletta. Here. Michael Richlis. Here. Michael Tarrant. Here. Jessica Majer. She's not here. Chase Pickett. Here. And George Kloss. Here. All right. One thing I'd like to remind all the board members is we have to speak into the microphones every time you seek. Please press the button here. When you're not speaking, please turn it off. Want to make sure that also every time you start speaking to announce your name first and then question or whatever it is so we can make sure that it is recorded properly and that the audio can be heard and it's understood who that question or comment is coming from. First of all, does anyone, anybody on the board want to disclose any conflicts of interest or it's partake communication? All right. Seeing none. Does any, any, any one plan to recuse themselves from any cases? Yes. I plan to recuse myself from the first case on pedigree. Okay. B2000022 correct? Yes. All right. Thank you. All right. Any adjustments to the agenda? All right. Approval of minutes from the May 24th meeting. I hope everybody's had a chance to review those. If so, I'm assuming you have, is there a motion to approve? Meadows move approval. Got a motion to approve for Mr. Meadows. Is there a second? Rhetual second. Rhetual is on the second. All in favor, please say aye. Aye. Aye. Aye. Any opposed? Same. Motion carries unanimously. All right. Terri, am I moving too fast? Nope. Okay. Cool. Would you like to call that first case? Yes. The first case is B2000019, it's a city case. And it's a request for a minor special use permit to allow a hotel where a property line is 200 feet or less from the residential district or property line of a single family residential use. The property is located at 3114, Hillsborough Road is zoned, office and industrial, and tier. All right, Jessica, before I got ahead of myself. If you plan on giving testimony today, I would like to go ahead and minister the oath. Would you please stand? If you do plan on speaking, raise your right hand. Do you swear or affirm that the testimony you'll give today is the truth and nothing but the truth? Thank you. Jessica, we'll turn it over to you. All right. Jessica Dockery for the planning staff, good morning. Staff would like to request the continuation of this case. This has been two-year delay because of COVID. And previous staff members had offered to do additional notification beyond what's the state statute-regulated notification. That being two years ago, and a different staff member, that did not happen. And so we would like to go ahead and provide additional notification, move this to a date certain in August. And I'd like to state that that would be August 23rd. The agenda would be posted by August 5th digitally online on our BOA site. It is also there now, and we don't anticipate any changes to that agenda. So anybody that's interested can go look. The only thing that might change is the date of the staff report would be reflective of the August meeting. All right. Okay. So what's before us is a recommendation to continue this case. Mentioned that printed staff packets, and this has kind of been over two years now, have not been sent out to the board members or I think applicants or anyone in at least that long. All of this information is online at the BOA website well in advance. So thought, does anybody want to make that motion? Sorry. Meadows, I move that this case be continued to a date certain of August 23rd. I'll second. Chase, pick it on the second. David? Are we going to have some discussion? I guess we could, yes. So did I hear David Palletta speaking? Is the staff requesting a continuance because the notices were not sent out? Did I hear that right? No. We did the correct notice for the state statute of the legal notice. Actually, we don't do those anymore, but because this is an older case, we did a legal notice, we did signs and we did letters. However, a previous staff member had coordinated with a neighbor to provide a packet four weeks in advance of posting the agenda. And that portion was not done. So in an abundance of caution and kindness, we are going to request that continuance. That's a good way of putting it. And what is the applicant, how does the applicant respond? Yeah, I was going to ask the same, David. I think that's going to do it with the applicant like to come forward. Chairman Rogers, Vice Chair Meadows, members of the board. I'm Patrick Biker with Morningstar Law Group at 700 West Main Street. Representing Duke hospitality LLC, the applicant for this minor special use permit. Members of the board, we are absolutely opposed to a continuance of this case. We've been waiting approximately two years for this hearing. And that's because the opponents of this special use permit refuse to consent to a virtual hearing in this case. I have lost track of how many variances and special use permits I have presented to this board and other jurisdictions in a virtual format. Of course, state law requires all parties to consent to a virtual hearing. As I'm under oath at this hearing, I will state on the record is my belief that these opponents did not consent to a virtual hearing as a means to gain negotiating leverage over our client. During more militaristic times, a common saying was you live by the sword, you die by the sword. In the board of adjustment context, I think it is fair to say that if you seek to win by procedural gamesmanship, you can lose by procedural gamesmanship. The argument that there should be a continuance in this case, it simply is groundless. There has been over a year for anybody who cared about this case to prepare for the in-person hearing that was scheduled for today. For almost two years, and now we are finding out there is even more play. Our client, quite simply, has been deprived of its due process rights. This board certainly can take judicial notice of what has happened to the price of materials, labor costs, and interest rates, since our minor special use permit application was calendar to be heard by this board in August of 2020, almost exactly two years. Long story short, our client's cost to build this hotel has risen by approximately 30%, simply because opponents involved in this case insisted on an in-person hearing, which is why we are here today. Members of the board, please keep in mind the nearest residential structure is approximately 180 feet away from the property line of this proposed hotel. And it's on the other side of Hillendale Road, which carries around 20,000 cars per day. I raise that issue simply to mention the issue of standing, and while I do not expect this board to discuss that issue, we point it out for the record. Accordingly, in our view, there is no basis to grant a continuance of this case. Some members of the board may recall two or three years ago the process involved with Discovery Charter School. During that lengthy process, I certainly did agree to continuances with opposing counsel because we had a cordial professional relationship. In this case, with this proposed hotel, my colleague Neil Gosh and I have no idea who opposing counsel is in this case, or why there needs to be a continuance to go above and beyond what state law requires in terms of notification. We've waited almost two years for this day, and we certainly do not wish to wait any longer. For all these reasons, we respectfully have our case heard today. We have all of our experts here in person to testify for all the findings required by the UDO. Thank you. Thank you. Thank you. Hey, Don. Good morning, board. Don O'Toole. I'm from the city attorney's office. I just want to, I understand what Mr. Biker just said and don't want to dispute any of that. Don't want to, I can't comment on the potential opponent's motivations for agreeing to a virtual hearing or not. What I will say is a former planning staff member did send an e-mail to some of the opponents of this project in which she indicated that she would specifically mail the agenda packet to that person when this case was scheduled for hearing. That person is no longer with the city. The current staff didn't realize that that promise had been made, and that wasn't done. I understand what Mr. Biker is saying about delay. However, I feel quite certain that if this case isn't continued today, we're going to have appeals of this case. And so I always think more notice is better than less notice. And while that staff member's promise maybe isn't legally enforceable, there was an e-mail in which she indicated that she would mail the agenda packet. And for that reason, as an attorney that represents the city, I do hope that the board grants this continuance. All right. Any thoughts? Any thoughts from the board on this discussion? Mr. Chairman? Yep, yep. My name is Tom Miller. Okay, come on forward. Mr. Chairman and members of the Board of Adjustment, I appreciate the opportunity to address you on this motion, on the city's motion for a motion that is similar in part to a motion that we would like to make. And we support the motion. And while we take some umbrage at the statements that Mr. Biker has made characterizing our position in the case, we'll set those aside because they're not pertinent to the case. Essentially, the e-mail is when this case was originally scheduled a couple of times in the fall of 2020, when we gave a party the right to object to a virtual hearing, it was determined that the neighborhood association, the Lawtospital Hill and Dill neighborhood association was a party and its objection caused the case to be delayed. Of course, we don't schedule it and we stayed in communication with the staff about when the case might be scheduled in the future. On a couple of occasions, staff members wrote to us to discuss about how things would proceed in the future. In particular, one e-mail that was sent by Eliza Monroe on October 19th, 2020 says as an update without consenting, without consent according to session law 2020-3, the city cannot hold a remote public hearing in this case. Therefore, it will be removed from the agenda on the October 27th meeting. The hearing will not be held until able to meet in person unless all parties who have standing have expressed consent to the remote public hearing. If it comes to the board to hear this case, a copy of the agenda packet will be mailed to you. Staff will aim to have the packet postmarked at your requested four weeks prior to the hearing deadline. That did not happen in this case. And so we agree with Mr. O'Toole that as an element of due process in this case, due process is adequate notice and opportunity to be heard before a fair tribunal and also that everything be conducted under principles of fundamental fairness. When the city, speaking on behalf of the city of which this board is an agency tells the neighborhood association that will receive a certain kind of notice at a certain time period and then does not do that it raises fundamental questions of due process. Although we have not made a secret and we did tell Mr. Goesh, the attorney that we've been consulting with is Chapel Hill attorney Lee Ann Nice Brown. Thank you. I'm a little nervous today. Yeah, Lee Ann Nice Brown. And so when we learned that this case was now on for hearing today, we went to her and she told us that she was going to be out of town from the 21st to the 27th and that she would be busy off and on through July. But if we set the case for an August 27th hearing, we will be here and we will be ready and we will have an orderly presentation of this case where all the issues can be aired by witnesses competent to address them. And I believe that with that setting on the 27th of August, we can do that. So for reasons of fundamental degree, we are not asking for this for fundamental delay. We want adequate time and we would like to be able to work with all the parties, the city staff, the city's attorneys and also so for reasons of fundamental process and also for just the orderly presentation of a case that's very important to us, we respectfully ask that you grant the continuance. Thank you very much, Mr. Chair. Mr. Becker. Mr. Miller referred to August 27th. That's a Saturday. I'm certainly happy to be here on a Saturday, but I reckon you as members of the board and the staff would not want to do that. I believe the case should be heard on August 23rd and we insist that it should be heard in person hearing. All right. This decision is ultimately this board's decision. So any discussion on the autumn? I have a question for staff, a question for the attorney and a comment for the applicant. So to the question for staff, has this site plan or this application changed in any way to your knowledge from when it was introduced to the board? No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. certain kind of notice. She's sort of working on behalf of the city. She told the applicant a certain kind of notice would be provided. I think a court might consider that email. And I haven't read it. I actually was on vacation the last couple of days when this arose, but I've been reassured that that is, in fact, what Ms. Monroe's email said. I could see a court saying that by moving forward without providing that notice, some element of due process is not being provided in this case. I think the safer course is to continue this case to August. Thank you. Mr. Chair, I have one last comment that I just wanted to make to the applicant, because it was going to be something that comes up if this case gets heard now or at some point in the future. And sheet number C6 identifies a series of plantings between Hill and Dale Road and the generator, identified as ET7. Those plants are not identified on the site plan. And I would like to know more about the screening associated with the generator. That's a relevant issue for me in thinking about compatibility. So I just wanted to mention that to you. Yeah, duly noted. Mr. Vice Chair. That's all I have. And just for the record, none of these notifications from Ms. Liza Monroe of the city ever came to the applicant. So we've been completely blindsided by this. Thank you. Yeah, and it's no longer. And it hasn't been even when Eliza sent that email that it was a standard practice to mail packets. We weren't, none of us were even getting mailed packets during that time. Hi. Donald Tool City Attorney's Office just wanted to make one point. Let's go back to when Ms. Monroe was doing what she was doing. COVID was new to us all. The city has tried to be fair to everyone during the pandemic. The state law was changing as far as virtual meetings. Come on. I mean, we were doing our best to work with a changing set of rules. Ms. Monroe, by sending that email to an opponent, was not trying to be, to hurt any other party. She was just trying to make it clear. We understand things are in a state of flux. We'll do our best to keep you informed. Let's go back to what was going on during that time period. And as someone who worked in the city attorney's office, I can tell you working here at the city, it was nonstop trying to make sure that we did what was right for everyone that wanted something from the city. I completely agree, Don. Hey, David. David Palletta, question for Mr. Biker. So the due process argument, a couple of thoughts. First, I'm sympathetic to two years. And I listened to what you say. In light of a likely due process challenge, if the majority of the board declined the continuance, would you like to withdraw your objection, given that we could have, we would eliminate that issue two months from now? I'm interested in your opinion. So if we. I see your point, Mr. Palletta, and it's well stated. I appreciate it. Let me just state for the record, I worked with Ms. Eliza Monroe for years. I consider her a good friend. She's a very good person. And so this is no way in shape or form a criticism of the city staff. It simply would have been appropriate for the applicant to be cceded on those conversations. That did not happen. And so let me put it this way, Mr. Palletta. We will withdraw our objection to this continuance pursuant to having this case scheduled on August 23 for an in-person meeting before this board. And I'll leave it at that, sir. Any other thoughts? Mr. Mortimer, I'm sorry. Are we able to meet on August 23 in person? Is that settled? No. I'm sorry. It's a possibility. Jessica Dockry, Planning Department. Because the Board of Adjustment is quasi-judicial and has different requirements, we have been able to set special meetings like this in person. We do not have official approval for a blanket all in-person meeting going forward. But we certainly can find a room and meet then. All right. Any other thoughts from board members? So none. All right. We've got a motion to continue this case until August 23. The motion as it states is it doesn't mention in-person. I don't know if you want to offer that amendment or continue the way it is. I offer that friendly amendment on August 23 in-person. In-person. And Mr. Pickett, do you continue that second? Yeah, second again. All right. Notice, official notice has already been. And as far as new kind of special notice. Got it. That's a good point is what it is. All right. I'm going to say that out loud, that there will be no mailed notices just like there are none for any other case. There won't be any, this won't happen. So if you're interested in the material, it's on the Board of Adjustments website as part of the agenda. And we'll be pretty easy to access online. All right. I guess what we'll do is I'll just call for an aye vote and we'll go from there. All right. All in favor for this, please say aye. Aye. Any opposed, please say no. No. So it sounds like we've got a 6 to 1. Motion passes. I'll mention that. Yeah. All right. Terry, would you like to call the next case, please? Clark and the next case is B2000022. It's a city case. It's an appeal of an administrative decision to administer a notice of violation for improvements made to Durham green flea market without an improved site plan. The property is located at 1600 East Pettigrew Street and it's zone industrial light. And it's with the Austin Avenue Compact Neighborhood Development here. Would you clarify the seating for this case? Seating for this. With Mr. N. Kip recusing himself from it. OK. Seating for this case is Meadows, Paletta, Rogers, Wretchless, Tarrant, and Pickett. Yeah. All right. Ian, would you mind sitting just for this case? All right. Turn it over to you. Thank you. OK. Good morning. My name is Leah Larkins with Planning Staff City of Durham. This is my first presentation in front of the Board of Adjustment. And certainly first time back in person. Quite a while, so happy to see all of you. Yes. As Terry said, this is B2000022 Durham Green Flea Market Appeal of a Notice of Violation. This site is located at 1600 East Pettigrew Street. And it's zoned light industrial in the Austin Avenue commercial, excuse me. See, I told you I was a little nervous. Development tier. The site is approximately 5.25 acres. And there are no zoning overlays. The applicants are Trans Perry and Robert Perry. And this is an appeal of an administrative decision to a Notice of Violation for improvements made to the Durham Green Flea Market without an approved site plan. So there was an approved site plan with a number of amendments over the course of several years. But additional improvements have been made without amendments to the site plan. This case was initially scheduled to be heard in September of 2020. Parties with standing exercised their right to refuse consent to the virtual meeting platform. And the board is now able to meet in person. So this case was scheduled and noticed in accordance with all state statutes. You are now viewing a zoning context map. You can see that this site, again, zoned light industrial, is surrounded largely by other light industrial sites. And here we have an aerial where you can see a number of structures and temporary structures and also metal structures have been added over the years. And now staff is available for questions. All right. Terry, excuse me. Yes, I find that this case has been advertised for the required period of time and no rise affidavits verifying the signed postings and letter mailings. Thank you for that. Any questions for Leah? I have a few. Thank you, sir. Good morning and welcome. So could you go back to the last slide you had, which was, I believe, the photograph of the site? Very helpful. Thank you. So as I understand it, what was done to this site? And these are questions. Conversion of parking area to outdoor vending area. There's a new entrance into the site from Plum Street. And I guess that's in the southeast corner, the gravel sort of thing. Can you clarify that that's what you mean? Yes, that is correct. OK, OK. And then corrects are correct, because I believe the other entrance was on the site plan from 2013. And so the third issue is placement of outdoor storage, right? Yes, that's correct. OK, OK. So what's the required number of parking spaces for this use and how many spaces are provided? It looks like there's ample parking, but I don't know the answer to that question. So what I can tell you now is that to our knowledge, additional structures, temporary structures have been added that are covering required parking. I don't have the exact number of required spaces for you, but it would be on the approved site plan. We do know, and Landis is here as well to speak to what's been seen on site for the NOSA violation, that they have placed structures over required parking. So these temporary structures in the outdoor storage, is that accessory or is that considered something other than accessory? Is it I'm trying to understand the permitting requirements associated with it. I understand there's a site plan issue here. Were there other permits that were necessary as well? I'm not sure. Jessica Docherty Planning Department. So an accessory structure used for retail in this case, they still would need a site plan even to place if it was just like a tool shed on a property. So it's sort of a gray area because technically they're accessory structures, but it's being used for retail purpose and accessory structures don't usually get used for that purpose. So regardless, we would have needed to see it. And I believe one of them is over a handicapped parking space. And understood. What about the outdoor storage? And I assume that that is the material that appears to run sort of parallel to the building on that first row of parking spaces. So outdoor storage is its own use in our UDO. And that would require a site plan as well. And they did not come forward for that amendment either. Thank you. Excuse me. Any other questions for staff? I have a few, Mr. Chair. Mr. Tarrant. Mike Tarrant. Good morning, Ms. Larkins. I just had a few clarifications that weren't clear to me looking at the aerial imagery related to the site plan. It appears that there was proposed landscaping and lighting approved on the site plan that don't appear to have been installed. Is that accurate? I believe that'd be an appropriate question for Landis, who's actually been onto the site. Do you know if those have been? They have not been for the record. It also looks like perhaps there was additional parking that was striped that may not have been included on the site plan as well. So we're asking if that was included in the notice of violation? Just clarifying exactly what the violation encompasses. Hello, everybody. Landis Robertson, CEO of Durham Planning Department. The notice of violation, and I didn't issue it, my staff did, Planning Manager. The notice of violation was improvements to the property without site plan approval. There was a wide variety of things that was done to the property at the time that was without site plan approval, one of which was a permanent structure that covered handicapped parking. Also, his site plan got approved in 2013 for which has an outdoor vending area approved on there. He's expanded that into other parts of the parking, also adding, once again, outdoor storage to the site. So we issued the notice of violation for numerous things. We didn't want to list just one thing because there were several different issues and things that he has done to the property without site plan approval. Thank you. The final question I have related to that, just looking at Google Earth historic imagery, it looks like the site improvements associated with the site plan were generally implemented around 2015 and then over the course of the next several years, these things started to come online. Was there any communication with the appellant or the owner in advance of issuing the notice of violation or was that the first step that the planning department takes? Usually with proper property and commercial use, it's a notice of violation. Our notice of violation is exactly what it is, a notice of violation. There's no citation attached to it. It's basically saying, hey, this is a problem. Please correct it. We give them a certain amount of time. I think he had 30 days to submit a site plan. Usually in these situations, if you are working with us, we'll work with you. So we work that way. This property has been written up in the past for this exact same violation. So over the years, he'll expand, we'll issue a notice of violation. He'll come in and submit a site plan. He'll expand, he'll issue a notice of violation. We'll submit a site plan. He'll submit a site plan. Property will submit a site plan. This is not the first time that this has happened. Thank you. All right, any other questions for staff? David. David Palletta. Is Kim Roberts going to be a witness today? Yes, she's here. Couple of questions about the notice of violation. The photos in the packet, were they attached to the notice of violation? And reading the notice of violation, I was unable to determine what the violation was. It was general. Why were some of the specific violations included in the notice of violation? Because, like I said, there were several different violates, several different improvements to the property without a site plan. We don't want to issue something that says, hey, fix this, this, this and this, when there was a whole lot of things that were improved on the site. So we went through and listed it. He could fix those things and not fix the others. Basically what the NOV says in general, is submit a site plan showing the changes that were made. If you submit something showing the changes, all the changes that were made, you don't have a problem, or no questions come up at the end saying, hey, you didn't fix this or you didn't show this. So usually what we like to do is keep it very broad in that type of situation, because there were several different things on the property that were improved. So if we were to list, hey, the parking, the building that was, that you covered the handicap parking, you need to get a building permit and a site plan approval. He might not submit the one or the property, and this is not just him, this is everybody, might not submit for the entrance at the bottom on Plum Street. So we kept it, we wanted him to put everything that he did to improve the property on the site, on the new amended site plan. Any other questions for staff? Thank you and thank you, Leah. Who do we hear from next? Do I hear from the applicant? All right, would the applicant like to come forward? Please state your name. Yes, sir. My name is Robert Perry. I certainly take issue with regards to what Mr. Landis Robinson said, with regards to whether we receive proper, whether we receive notice of the violation. He stated that with the violation, he stated that they gave notice of a general nature. And we were under the impression that the violation that existed at the flea market was a violation that regards to a handicapped parking. The outdoor storage, he said it was a permanent building with respect to outdoor storage. I know of no outdoor storage that was erected by us to at the Durham Green flea market. We have been in existence since 2008. And we did have some problems starting off at the flea market and then we submitted a site plan. And then we had to reach, when we paid the flea market, we submitted a site plan. There were not numerous violations as Mr. Robinson stated. If you review the records of the city, there's just hadn't been a lot of violations. When we got this violation, quite frankly, we did ask Mr. Robinson, why don't you come to us and tell us about the handicapped, there was a handicapped parking that was in dispute. And just tell us about it. And of course he said, we don't have to. And of course they didn't have to. But we have, he makes it seems like there was a lot of violations at the flea market. There aren't a lot of violations at that flea market. We invested a substantial sum of money into that property. The property was dilapidated and the property was improved. And the citizens of Durham are experiencing a wholesome environment there on the property. And we are experiencing a wholesome experience at the flea market in spite of not having the city of Durham working with us to allow proper egress and ingress of the traffic flow there at the flea market. The primary road there at the flea market, the primary road is Pettigrew Street. And that Pettigrew Street has been closed for four and a half years, four and one half years we have been without adequate traffic flow because the primary road, Pettigrew Street, has been closed. I can think of no project in the city of Durham save the widening of interstate 85 maybe and certainly there's been delays with regards to the East End Corridor. But this one entrance to Pettigrew Street has been closed because there hadn't been an overpass. The pass is over Austin Avenue that has been torn down and we have not had proper access to the flea market. And the reason that's important is because that has impacted upon our ability to attract more citizens of Durham and outline areas. If we, in order to correct the parking that Mr. Robinson referred to, it's gonna require us to submit a site plan. And he said, well, if they submitted a site plan within 30 days, then there's no problem. When we submitted the original site plan for the flea market, it took about a year to get that site plan and have the engineer to devise the landscaping and whatever requirements there are. It takes them about three months to prepare it. And then you got to submit it to the city. And by the time the city routes it to everyone within their departments, whether it's electrical, whether it's the plumbing, whether it's the traffic, whether it's erosion, all those departments have to submit their approval. And we get that back about two or three months. And then once they have their correction and then the engineer has to make his correction. And so you're not gonna get a site plan approved in 30 days. It's just not gonna happen. You're gonna, it's gonna take you a long time to get a site plan approved. And we have been diligent with regards various requirements with regards to the site plan. And so if they had come to us, if they had just simply come to us and asked us to submit the changes, we would have done it, we would have done it. And we'll do it now. We've been in consultation with engineer Cliff Crater who to submit a site plan, but it's gonna require is to correct what the problem is with regards to, and we did build on top of a handicapped parking space, but we also allow, we have, we re-designated on the west side of the building, we re-designated handicapped parking spaces to replace that parking that was covered by the structure that was referenced earlier. So we, but it's gonna require in order to correct that, to make a permanent correction to that problem though, because the standard parking was converted to the handicapped parking, now we, the engineer tells us we are below, we need additional paid parking in order to comply with the city regulations. We're in order to do that, then if we have some additional land that adjoins the primary property that can be converted to paid parking, but if you're gonna convert that to paid parking, then you're gonna have to comply with some impervious requirements and things of that nature. And so then we're gonna have to install a retention pond to so the water can flow appropriately. So it's not a simple thing as just removing that particular structure, which is a temporary structure, and then converting it to standard parking since we got, and then we have to submit, of course, a site plan on the west side of the building to comply with the handicapped parking. So with the point I'm making without getting too detailed in this, we are willing to work with the city with respect to this, but it's gonna take a lot of money to comply with the standard parking and the handicapped parking there at the flea market. And it would help, it would help if the city would speed up the process of allowing us to have the primary interest way to the flea market, repair it in a timely manner. Four and a half to five years, that's ridiculous for one overpass to be causing us not to have the proper traffic flow. And the problem presents a safety issue because if that street is closed, then the majority of the traffic has to flow over to Plum Street, which adjoins the flea market. Pedigrew and it goes over a railroad track. And just week before last, we had an accident involving the train hitting a car there, and we also had other incidents involving the train hitting pedestrians and or cars. And so something needs to be done there as well, but nobody pays attention to that. In addition, there's a water tower about two blocks west of the flea market. That water tower, they changed it had to change the utilities, the lines, the water lines from the southern side of Pedigrew Street to the northern side of Pedigrew Street. That's taken over three and a half years to do that. And because there is constant construction and about two blocks away, all the big trucks come down Pedigrew Street and distribute their dust and dirt directly in front of the flea market. And if you wanna see it, just ride by there. Just ride by there and see all the dirt and the dust that we have to contend with from the construction that the city has allowed to go on for the last three and a half, the last four and a half years. And so we would like the city also to cooperate with us and allow us to have a nice place that we can entertain people and to also work with us as far as making these amendments to the site plan, but it's not gonna be done in 30 days. Thank you. All right. Mr. Perry, I got one, I have one question and I'm going to let others ask questions. Yeah. I did it. I did it at the very beginning for all of them. Everybody stood in there. Where we raise your hand. I was not here for this one. Okay. Well, we need to do that. I'm sorry. I thought you were here. There was quite a few people here. Will you please raise your right hand? Do you swear or affirm that the testimony you'll give today is the truth and nothing but the truth? I swear the testimony I've given and the statements I make here forth will be true. Thank you. All right. Mr. Perry, are there differences or would there be differences between your 2013 site plan and what would be on a site plan today? There will be the primary difference, as I indicated before, is that we have to re-designate handicapped parking. It has been done on a temporary basis, but it has not been formally done by submission of a site plan. Okay. So basically everything is in place. All right. Let me say this, and I'm not trying to hide from it. There is a requirement for lighting their parking that was not there, but when we paved the parking with the flea market about three years ago, we installed lines that would make it possible for us to have lighting the flea market. It's not going to be cumbersome for us to comply with that quite frankly. Although we don't operate at night time, we primarily operate during the daytime. I think a lot of the things that you're experiencing are what a lot of growing businesses in Durham are experiencing as well as when it comes to growth in the business. Does anybody have questions for Mr. Perry? Any board members? Mr. Palletta? David Palletta. Mr. Perry, when you received the NOV, were you able to determine the specific violations that were alleged and what specific action you needed to take to correct the violations? I didn't, no, I did not. Cause I was not an impression that the entrance to the southeastern part of the flea market was a problem. If you, and I know that entrance was there, if you look at some of the old pictures, and it was old fencing that went up Plum Street. And proud to my being involved in the flea market, there was another gentleman involved in the flea market and when the property was dilapidated and abandoned. And what this gentleman did, he filled in the debris when few gardens was torn down and few gardens is on Morning Glory and off of Austin Avenue. But when few garden was torn down, the debris from few gardens, the bricks and everything were deposited in the back of the flea market land. And so it was raised up and the city brought an action against that owner at that time. And I remember there being an interest for the trucks to enter. It was two entrances, one in the middle of the property from the eastern side of the property and one further down with where reference was made to the southeastern part of the flea market. There was an interest there also. So this interest has always been there. And so I wasn't aware of that particular violation and because I don't think it is a violation because the interest was already there. And so I was under impression when we got the violation and the reason I was coming here today was to confront the issue with respect to the handicapped parking that was covered up by a temporary structure. So my focus as a board member is on the notice of violation you received. And also in your appeal, you raised a defensive discriminatory action. Is there anything in the record? Is there any evidence that supports your defense that you've been discriminated against? Well, if you go throughout, having gone through this process of getting the site plan improved and what it entails, you oftentimes look at other pieces of property to see if they're complying with their site plan. And there are numerous entities here in Durham, for instance, even from Lowe's with regards to how they put the lawnmower and the vegetation out in front of their buildings and the storage facilities, they have in the parking lot and the security system, they have those are all violations of the site plan. And they have a flea market quite frankly that's operating on Club Boulevard where the old theater used to be as a compare grocery store there where the planning department gave approval for them to continue the operation of that flea market there and say you don't have to comply with any regulations whatsoever. You don't have to have plumbing. You don't have to have anything. Well, the question. Yeah, Mr. Perry, that is true. It's not. Here's the honor because I've seen it with my own eyes and I'm just responding to the question. I understand. And so, yes, yes, I believe. The question before us is your property. We have no point of reference or anything to these others that you mentioned. That's why it's irrelevant to that. Well, it was relevant to me because it shows that again, if they had respected us and come to us and asked us to comply with the site plan, we would have done it. But they didn't bother to ask us or come to us at all. They just sent out the notice and say it's submitted within 30 days and you can't submit a site plan within 30 days. Mr. Buwala. Mr. Chairman, I would say if the facts supported it, an applicant could raise an equal protection defense. So it's not a theory that's irrelevant in terms of application of the ordinance. But my focus is the NOV. I think you've answered that. Just to share with you, with regard to the street problem, we don't have jurisdiction over the street or the water tower. So that's not something we can really respond to. That's all I have. All right. Any other questions for Mr. Perry? All right. Thank you, Mr. Perry. Don, I think Mr. Wardell. I'm Wardell County Attorney's Office. I just wanted to clarify, earlier you referred to the appellant as the applicant. And so the applicant is actually the appellant. That's right. And so you treated it slightly differently because they're not really asking for anything. They're appealing the notice. So you have to look at the notice and the notice is what determines whether or not they get the relief that they need. So when you look at the notice, you have to see determine as a board whether or not the notice is adequate, whether there was proper notice given, and whether the violations were actually sufficient. And so they're not applicants, they're appellants. So you treat it a little bit differently. And am I correct? David, would you mind speaking in the microphone? David Palletta. And since this is an appeal, am I correct? The appellant needs to get five votes to overturn the decision of staff. I believe it's still a majority vote. Or is it? Super majority five. Since it's a city case. Okay. I represent the county. Typically. So this is different from, right. So just to clarify that in terms of the testimony and how you weigh and apply the facts that are being presented, everything is geared towards the actual notice. So the issues would be, was the notice adequate? Were the actual violations pointed out in the notice? And should the notice be upheld? That's what the applicant, the applicant is saying that it's not. Does anybody have any questions about that? Go ahead, Dave. To either of the attorneys. So in this appeal, who is the burden of proof? The appellant has the burden of proof that the notice of violation was not, should not be substantiated. All right. Well, okay. And Don is representing the city. And I'm sure he'll address any inaccuracies that he feels in terms of the application of the facts to the actual appeal and the burden. All right. Any more questions for Brian before? Well, we certainly need to hear both attorneys on where the burden of proof is. Well, that's, yeah. But Brian has given us advice on behalf of, for the board. So because this is a city case and the city issued the notice of violation, the city will be advising you and representing the city. That's right. We still appreciate your advice. Right. But I'm just giving you the distinction. And so since the city can't also advise the board because they are a party, that's why I'm... Yes. That's why I was getting, sorry. He did it much better than I did. All right. Any other questions for Brian? Let's move this along. Don, did you want to cross examine? Or did you want to give any more information? I'm going to cross examine Mr. Perry, please. Let me say this also before he starts cross examination of me. We actually did substantial improvements to the profit by converting the old restroom from where we had one stall for the men in the restroom and one uriner in the restroom. And we had only two stalls for the women. We invested over, and my son, trans Perry who build houses here in Durham and does substantial construction work. We invested about $125,000 in changing the bathroom, the restroom. We converted the men's restroom to having two stalls and two uriners and having two sinks and converting the women restroom to having four stalls and three sinks. And it's a completely new structure up in the front part of the building. And so, and we went through numerous, we submitted a site plan. We submitted, we got our permit and we complied with the city's regulation with regards to this new restroom that was installed there at the flea market. And so we're not adverse to complying with regulations from the city. My son is building houses on Cleveland Street, North Central Durham, and he knows how to comply with this regulations in the ordinance of the city of Durham. He works constantly with the planning department with regards to complying with regulations with respect to the city of Durham. I'm an attorney. And I've been an attorney here for 39 years. And I know how to comply with regulations with respect to conducting a business here in the city of Durham. And so for them not to contact us and ask us to make a revision that they perceive to be a relative amount of violation, but really it may involve more is just an insult to our operation and the owners at the Durham Green flea market quite frankly. All right, Mr. Thank you, Mr. Perry. Mr. O'Toole, we'll start the cross-examination. Or Chad, do you have a question of? I have one quick question either for Mr. O'Toole or staff. I'm looking at the notice of violation, which is page 11 of the packet. And it says the violation is failure to comply with an approved site plan D1300045. One paragraph below that is the remedy. Correction of this violation will require the violator to remove all alterations inconsistent with the approved site plan within 30 days of the receipt of this notice. Is that accurate? That's accurate. There's nothing in here about site plans or anything else. It's remove what's inconsistent with the approved site plan. That was the correction. Don O'Toole city attorney's office not to make the city's argument. Mr. Perry is well aware that another alternative is to submit a new site plan to bring the site into compliance. So I would say it's either comply with the third approved site plan for this parcel or submit a revised site plan to bring the site into compliance with the current improvements in place. Neither of those things were done. Understood. But the notice of violation was remove material inconsistent with the approved plan. It didn't say or submit a revised plan, which I understand is a possible remedy. But as far as the NOV goes, that's what it said. Correct. Thank you. All right. Mr. O'Toole. Donald O'Toole city attorney's office here on behalf of the planning department. Mr. Perry, just want to clarify. I think you just said on the record you are an attorney, right? Yes. And you practice here in the city of Durham? Yes. Okay. And you and your son are also the owners of this property? Is that correct? My son has a 57% ownership in the flea market and I have a 43% ownership. And you're both managers of Durham Green Flea Market LLC that owns this site, correct? Yes. So you're responsible for whether this site is in compliance with the approved site plan or not, correct? Yes. Okay. I think you've already testified on the record that the third approved site plan and its D1300045 was approved by the planning department, correct? You know, as I stand here now, I'm going to say I have no reason to disagree with you. If there is a site plan or a record, we have complied with the site plan. And we've had, like I say, that may have been till the plans with regards to the restroom. It may have been with regards to the paving that was done. So what was done at that particular time that necessitated our having to submit that site plan, I can't say just standing up here. Okay. But I think you've already testified in response to Mr. Rogers' question that there are improvements that have been made to the property that are inconsistent with the D1300045 site plan. Is that correct? The improvements of covering the handicapped parking has been referenced. That's what I'm familiar with. Okay. So changes have been made to the site that are not in compliance with that site plan. With regards to the parking, yes. Okay. And it's two parking spaces, okay? It's not like it's multiple parking spaces. There are two handicapped parking spaces that have been covered. And as I indicated also, from a temporary standpoint, without having submitted the site plan, we relocated those handicapped parking to the west side of the building. Okay. The NOV at issue in this appeal was issued in January of 2020. Is that correct? Well, you know, it is. I'm not going to speak that. It's been over two years, hasn't it been? It's been over four and a half years since we had adequate entries by cars to get to the flea market. But that wasn't like... So two years to me is less than four and a half years that the city has allowed and the city owns the property that the state is using to store their cars and vehicles. And so, well, yes. Yes, it's been over. It's probably been two years due to the pandemic that you may reference to in the other case as well as this case that has caused us to... We wanted an in-person hearing. And because we wanted an in-person hearing, it necessitated a delay. Let me ask you, after you received the NOV in the early part of 2020, did you or your son take any steps to bring the site into compliance? Well, as I told you now, we did relocate the handicapped parking spaces to the west side of the building. If you want to go there now and look at it, it's six spaces there on the west side of the building that has handicapped parking that was not there, there was not a designated handicapped parking space, but it's designated now. Okay, are the relocated handicapped parking spaces in compliance with the approved site plan? Not the present site plan, no, it's not. So the site, it sounds like your own testimony is that the site does not currently comply with the existing site plan for the property. Yeah, I'll answer that question. Okay, this appeal was originally scheduled for a virtual hearing of September, 2020. Do you recall that? No, I do not recall, but I know it was scheduled in the past. Okay, but you were present at the beginning of that virtual hearing, weren't you? Yes. Okay, and at that hearing, you've refused to grant permission for the appeal to be heard virtually. Isn't that correct? I'm not going to use the word refuse. I just wanted to say I exercise my right to have an in-person hearing. Very good. So we did not have the virtual hearing in September, 2020. Is that correct? That's correct. Okay, after September, 2020, did you or your son do anything further to bring the site into compliance with the existing site plan? Well, the only violation is that we, as I said before, there is a temporary structure on top of two designated handicapped parking spaces. And those spaces have been redesinated on the west side of the building. Let me rephrase that. So I stated as clearly as possible. As Mr. Meadows said, have you brought the site into compliance with the existing site plan? I think we have, because I think we have, because let me ask you a question. Let me ask you a question. Let me finish answering your question. We have. We've designated six handicapped parking spaces on the west side of the building. And I think the planning department has in its discretion to accept those handicapped parking spaces as being in compliance with the site plan. If they have the discretion to allow a flea market that to operate without any compliance, in the submission of any type of site plan, certainly they have the authority to accept those redesinated handicapped parking spaces on the west side of the building as in compliance with the site plan. Let me ask you, do you know why planning staff went out to investigate this site prior to issuing the notice of violation in January, 2020? In my conversation with Mr. Robertson, he said that they received a complaint from the Department of Health and Human, the Department of Social Services. When they went to, when the Department of Social Services went to inspect the food trucks, they noticed that one of the vendors had their operation on top of a handicapped parking space. Do you recall what, do you recall? Let me finish, let me finish. So they say they saw the temporary structure on top of a handicapped parking space, and so they called the city or planning department. Let me just, are you aware that the County Health Department was concerned that a restaurant had been constructed and was operating in the parking lot? No, absolutely not, because they come there every so often to inspect all the trucks, and we don't have any type of food vendors, we never have had any type of food vendors inside the flea market. So there can't be a restaurant with only food trucks, there's only food trucks that sell the food at the flea market. Okay, as far as I know, the two planning staff members most involved with this NOV are Ms. Roberts and Mr. Robertson. In your earlier testimony, you said that city staff had not respected you. Can you explain to me, how did Ms. Roberts or Mr. Robertson not respect you? I thought they should have called us. They deal with trans is down at the planning department all the time. He's, let me finish my question. Sure. He trans, my son, and he would have been here today, but he took his wife and five children down to Disneyland. That's where they are now. But he deals with the planning department on a constant basis. And so, why he's down here at the planning department, they could have spoken to him and told him of those violations or just called him or called me. I've dealt with Mr. Robertson before on other matters. Mr. Perry. We've talked before and Ms. Roberts, I've dealt with her on various matters. Mr. Perry. Let me finish. Sure. And when we, my office is on Fairbastree and we converted, we did approximately $700,000 worth of renovations to the property on Fairbastree. And we comply with the regulations then and we will comply with them in the future. And so we have no problem complying with these regulations. Only thing we want is open communication. Mr. Perry, you're an attorney, correct? We've said that numerous times. Okay. Have you ever read the UDO provisions that dictates how the planning department is to issue notices of violation? I've read parts of it, but I can't decide, I haven't looked at it recently. Okay. Isn't it required that it be in writing to the property owner? Well, again, there is a requirement that if you wanna give a former notice of violation, you should send it out as we've mentioned here in this case as well as the previous case. And so, but sometimes a lot of things that we do as citizens and people with the city does, we talk, we communicate and we don't send out former notices. And they've done that in the past. And I was wondering why they didn't do it in this case. Thanks. Like the renovations to the restroom. We just finished that about a year and a half or two ago. We just did that renovation. It was a major renovation. And if you like this, you know, you need to come back and look at it and see and look at the records at the, look at the records that indicate what we did to comply with the various regulations of the city with respect to installing those restaurants. So we've made, we have cooperated with the city with regards to their regulations. All right. Excuse me. Mr. O'Toole, are you, does that wrap it up for you? All right. Let's bring it back to the table here for the board discussion. Mr. Wardau, do you have something before we do this? I wanted to further address the issue of burden proof because clearly that's going to be an important issue. Went back and looked at the statutes and because this is a violation that carries potential fines and penalties, the burden is on the agency or the city by clear and convincing evidence. They have to show that the notice of violation is proper. Thank you, Brian. All right. Discussion on the board thoughts. David, I saw your hand move first. So out of the corner of my. I'm influenced by my experience of reviewing over a hundred notices of violations. I cannot support the city's action due to the wording of the notice of violation. I would respectfully disagree with Mr. Robertson with regard to, in my opinion, the notice of violation must list the violations if there's 20 or 30 and must list 20 or 30. What this notice of violation is a boilerplate form and it doesn't meet the standards. I thought the burden of proof would be on the city and even if there's numerous obvious violations going on, the city must follow the correct procedures. The first step of the procedure is a written notice and this notice is generic. It's not specific. And so the city hasn't met its burden. All right, anyone else? Chad? So I'm not sure that I agree with Mr. Paletta and I don't know that that makes any difference. When I look at the site plan that's been approved for this site, it lists outdoor vending area. It lists ingress egress. I looked at the aerial photo that's included in the record and I see an additional access that's been added. I see additional outdoor equipment, storage, whatever it is in the parking lot and that's not reflected on the site plan that was approved. I heard testimony from the staff that placement of stuff like what I saw in the aerial photo requires site plan approval. That site plan has not been submitted or approved. So the site is in violation of the ordinance. While I agree that the notice of violation could have been more detailed and perhaps would have been helpful had it been more detailed and perhaps even have stopped us from having to be here had it been more detailed. The main issue is the stuff that's on the site that wasn't shown on the plan needs to be removed within 30 days and that seemed fairly clear to me. The timing of the site plan, et cetera, I'm not sure that that's relevant. I'm sure that perhaps the middle of a site plan application or an indication of a site plan submittal might have helped toll that period or prevented us from having to be here today. But I don't know that that was done. I've not heard any evidence that that took place. So I believe that the notice of violation indicated what it could indicate that there's material on this site that needed to be approved via site plan and that wasn't approved. And the fastest and easiest way to address that would be to remove it. And so for that reason, I believe that the interpretation made by the planning director was correct in this case. Thank you. Thank you, Mr. Meadows. Tarant? I agree with Mr. Palada and Mr. Meadows. I think in my position and understanding of site plans is that the site plan is for all intents purposes the list of things that must be adhered to. And so for that reason, I feel like just referencing the most recent approved site plan is, in fact, the document that lists the conditions that need to be approved. I certainly appreciate everything that Mr. Perry has done to improve this property and the efforts he has made to really create a special place for Durham and to improve these and the amount of investment he's put into this facility. However, when I look at the date of the notice violation, the approved site plan, it is very clear to me that the property is being used in ways that were not approved on the approved site plan. So I'm inclined to support staff in the decision they made to issue the notice violation. Thank you. Thank you, Mr. Tarant. Anyone else? I'll go. Mr. Meadows, I completely agree with you. I look at the same materials, look at the question hand and I actually agree 100% with what you said about site plan and then not being what it is today. I think that was my first question as before after we heard Mr. Perry's testimony. So I agree. All right, anyone else? Anybody else have any thoughts? Mr. Retchless. Retchless here. Yeah, I've dealt with notice of violations and they all go back to a site plan. And when you're not following one, I don't think it's a boilerplate notification. I believe it's clear when it states that you had a plan and you didn't follow it. So you're in a notice violation. So I concur with the other Mike and Chad and yourself. All right, unless there is further discussion, which should be happening right now, please raise your hand. Is there a motion? Would anybody like to offer a motion? Darren, I'll make a motion. Mr. Tarrant. The matter having been reviewed by the board on application for appeal of an administrative decision to administer a notice of violation for improvements made to the Durham green flea market without an approved site plan by the director of planning, Sarah Young. See for property located at 1600 East Pettigrew Street in Durham, North Carolina. And after hearing the presentation of evidence and reviewing the appeal submittals and all substantial material and competent evidence, I hereby make a motion that the application appealing the planning director's interpretation be granted. I have a question about that motion. Yes. Are we granting the appeal or are we denying the appeal? That's right. Okay. Well, that answers that, I guess. Palada will second the motion. Yes. So if that is the case, if that is the way you decide to vote, Terry, I'm gonna let you go through each college one. We had a motion by Mr. Tarrant, had a second by Mr. David Paletta. Terry, I'm gonna let you go down the line. Meadows. No. Paletta. Yes. Rogers. No. Regulus. No. Tarrant. No. Pickett. No. Colossum. At Colossum. No. No. Motion fails six to one. All right, by a vote of six to one, your request for an appeal administrative decision has not been granted. All right, do we wanna take a, does anybody need a quick five, 10 minute break? Okay. Let's, it's 9.59, let's return it 10, 10. We'll see you then. Yes. It is available, it's on YouTube, actually streaming live on YouTube right now too. Yes, 10, 11 minutes. Yes. All right, it's 10, 10. We'll get back on, I think we have everyone at the table. Terry, would you like to call the next case? Yes, I would. Well, and before you do that, if there is anyone in here who hasn't taken the oath or wasn't sworn in, if you'll please rise, and if you plan to give testimony in a case today, please rise, raise your right hand. Do you swear or affirm that the testimony you'll give today is the truth and nothing but the truth? All right, thank you. Terry, take it away. This case is B 22-00014, it's a city case, it's a request for a variance from Repurium Buffer and no build set by standards. The property is located at 1608 Gunter Street and it's zoned residential urban and it's in the urban development here. And seated for this case is Kip, Meadows, Paletta, Rogers, Wrenchless, Tarrant and Pickett. And this case has been advertised for the required period of time and notarized affidavits verified in the sign postings and letter mailings are on sale in the planning department. Thank you. Cole, we'll turn it over to you. All right, good morning. I'm Cole Reniger, representing the planning department, playing staff request to the staff for and all materials submitted to the public hearing for this case and all of today's cases will be made part of the public record within any necessary corrections as noted. So noted, thank you. Case B 22-00014 is a request for a variance from the Repairing Buffer and No-Build Setback Standards. The case area is highlighted in red. The site is zoned development urban tier, zoned residential urban. RU-52 is in the city of Durham's jurisdiction. The existing use is vacant residential. Your ride door to the applicant request a variance from the Repairing Buffer and No-Build Setback Standards Unified Development Ordinance, UDO section 8.5.12 requires any person who wishes to undertake a prohibited use in the Repairing Buffer to apply for a variance. UDO section 8.5.9c requires any buildings or other features that require grading construction shall be set back at least 10 feet from the edge of the Repairing Buffer. The applicant is requesting a variance for 19.7 encroachment into the Repairing Buffer and full width of the No-Build Setback to construct a single family dwelling. In order to meet the requirements for Repairing Buffer variance, all requirements found in UDO section 8.5.12a.3a must be met in addition to the four general findings or variances. Questions? All right, any questions for Cole? I have. Thank you, Mr. Chair. Good morning, Cole. In looking at the slide that's on the screen, where is the creek? Does it stop there? Is that the headwaters for the creek? Does it go through the site? I have never seen a site plan or a sketch that just terminates the buffer in the middle of the site without any sort of... Where does it go? Does it continue through? Or does it come out of a pipe there or what? So I don't believe it's shown, but I believe it goes through the site completely. But I'll let the applicant speak to more if they know. Thank you. All right, any other questions for Cole before we continue? Hear from the applicant. Mr. Kep, will you turn on the mic? Sorry, is the property in a flood zone? I do not believe so, but there is times where the repairing buffer does not coincide with the flood zone. All right, any other questions for Cole? One last time, sorry, I forgot to ask it earlier. Does this case go to the Environmental Management Commission? So no, and depending on whether it's in the Neuse River Basin or Cape Fear Basin allows the city to designate it or whether it's in the Neuse, it goes to the State Department. So we're the final decision maker on this one? Yes, it's correct. Thank you. All right, thank you, Cole. Would the applicant please come forward? If you'll state your name and we'll get started. To answer your question, Mr. Meadows, it's, I believe it's a pipe. Would you mind stating your name, telling us a little bit about the property, any information? Sorry, you're right, George. Yeah, it's roughly 0.35 acres in Durham. We've attempted to put the structure as far away from repairing buffer as possible due to this being a long time vacant property forever. The surrounding areas seem to, I have some pictures here in case you may have such a team to be dumping a lot of trash refuse into the site, which our thoughts are, if there's a home built there and it's somebody's house, they likely won't continue to do that. We do try to pick it up on a regular basis, but if you go on the site and have pictures, there's signs for no dumping like it's a problem in the neighborhood and the city is aware of it. But we've been trying to keep it clean. Every time you go back, there's something new dumped in the site. So my thoughts are that, although we are impacting slightly repair and buffer, the benefit to having fluids, trash, things like that, getting rained on and flowing into the repairing buffer into the creek would be a better end result than what's currently happening. Are there any other design ways of making this to where it's not in this buffer? None that I'm aware of. Not that would be a single family home. All right. Just be due to the nature of this. This is the creek right here. I'm having a hard time getting this on that for a side. Yeah. The furthest right line is the creek. I believe 20 foot. Sorry, it is hard to see that. The third line was the, but I believe to be the 50 foot. Thank you, Cole. Just want to, just want it to be clear for everyone. Of course. I can zoom in if need be. Zoom in. So everyone can see this. All right. The two zones and the center line of the creek is the line with the two dots. Yes, sir. Okay. All right. Was that anything else, yeah. Okay. Does anybody have any questions? I do. Mr. Meadows. Thank you. Could you talk a little bit more? There's probably a couple aspects that I'd like for you to talk just a little bit more about so that we can understand the need for the variance. The first is the 10 by 10 area, which I think is in the back of the property. If you could talk a little bit more about what that is, what it's made of and why it's in that location. The other thing I'm hoping you can talk a little bit more about is, you know, the survey that's in front of us has building setback lines on the side of six and setback lines on the front of 20. And so just, it would be helpful to me to understand the limitations that you're facing in terms of moving that structure four feet to the west and five feet to the south to sort of get as close as you can to the spirit and intent of the ordinance, which is to try to avoid those areas. So if you could just talk about the 10 by 10 and what that is, why it's there and then also, you know, what are the aspects of the site that make shifting the building to the west and the south impossible, that would be helpful. Yeah, the 10 by 10 would be an uncovered deck made of wood. The, to answer your question of what would make it impossible, nothing we generally, when possible, leave ourselves a little bit of room when building because if we build on the setback line and something goes wrong during construction, you know, things aren't perfect that it's happened where, you know, a structure is built over a line and then- That never happened. That never happens, right? You guys, I'm sure you've had various meetings about that. So we were trying to leave ourselves a little bit of wiggle room. So yes, we could move it, you know, a couple of feet to the left, a couple of feet forward. We were trying to give ourselves a little bit of wiggle room for the natural building of homes. Is there anything else I can help with that, Mr. Meadows? Thank you. All right, any other questions for the applicant? Mr. Pickett. Does anybody know about the status of the creek? Is it designated as an intermittent creek? Or is it, do you know if it flows? It does. It does. Mr. Rexlis. Yes, you mentioned something about pipes. Is that a stormwater? And where is that at? Is that on this piece of property? I believe so, yes, stormwater. Is a riffwrap surrounding that? And are you gonna take care of any conditions related to, you know, the site if it were under construction and things like that? Yeah, currently the overgrowth, I was not able to see where the, if there was a riffwrap around it. But yeah, if there was a need for rebuilding or improving that stormpipe, that would be our responsibility. Okay, can you kind of maybe tell me physically where you think that is on the site drawing? And that's a corrugated steel drain? From what I've seen, I believe it's concrete. Okay. All right, Nate. Sorry. Is this, is this, you're gonna be your personal house? No, sir. Thank you. All right, any other questions for that? Mr. Tarrant. Mike Tarrant, I just had a quick question. Were you aware of the jurisdictional requirements with the stream when you purchased the property or did it appear just to be a drainage ditch? We did believe there was a stream there. We came after a rain and there was water flowing through it. We didn't know if it was a constant flow or not, but yes. Thank you. Any other questions for the applicant? All right, is there anyone else? No, I'm sorry, Ian, I didn't see you. Sorry, I just want to follow up question. With the design of the home, will you be collecting the roof leaders and discharging them to the front of the house or will they be just running off splash blocks into the street? We could definitely run it to the street if that would be beneficial. Yeah, either way would, whatever you prefer. Just a question. It appears that the around the stream is a flood zone. So are you making any modifications to the house like elevation modifications to just make sure it doesn't get flooded? Definitely, yeah, we would improve grade around the property and then build up the foundation wall on the, it would be the south, southeastern corner around to the north. Build that up higher to prevent water. Okay, thanks. Any other questions for the applicant looking around? All right, is there anyone else here to speak in favor of this application? All right, is there anyone here to speak against this application? Please come forward, stay. Gordon Williams. I live on the property, this is lot A down there. I just want to provide some geographic clarification. The stream flows onto my property where there's a 12-inch concrete culvert. And that regularly clogs with storms and with debris and such. So I just want to make that clear. All right, anything else? Is that it? Not really, no, just wanted to clarify that. All right, any questions for this applicant or excuse me for this witness? All right. Would you like to come forward to any rebuttal or any thoughts on that? And we always provide the applicant a rebuttal to any opposition? I guess if that was opposition, that was one of the reasons why we thought it'd be beneficial to actually build on the site to clean it up and not have the debris clogging the stormwater pipes. Okay, all right, anyone else? Is there someone else? If you'll please state your name as well. Hello, Clifford Heindl. I'm a property owner. It's a triangular-shaped block, so it's a little unusual. And I believe it was designed that way because there is the creek that basically initiates, and I think it's the headwaters, is that little forested grove in the middle of the triangle that runs out through this property. So two main points. In the 15 years I've lived at the property, I've spent $2,700 in stormwater fees to the city through my water bill. And I hope that money's being put to good use and protecting this watershed. And I think it's important that this parcel be left undeveloped. I think that's why it's historically been left that way because it was obvious to everyone over the years that it should be left in its natural state. The left side of the parcel where the house is planned to be placed is a very steep bank and it will cause persistent drainage issues if it's regraded and the native vegetation is disrupted. So the last point is that the UDO states that in wavering the riparian buffer, it must be in harmony with the general purpose of these regulations. And I think it's obvious that that's not the case. So thank you all. All right, any questions for this witness? All right, is anyone else here to speak against this one? All right, let's bring it back to the table here. Any thoughts, discussions, questions? This is Meadows. I agree that this site is a challenge and that it has conditions that are peculiar and that this is not a hardship created by the applicant and the majority of the criteria where I'm wavering a little is with respect to the spirit and intent of the ordinance. I see a structure that's proposed in a location that is deeper into the riparian buffer than it need be given the setbacks that apply. I also see a wooden, a deck on the back which further encroaches into this sensitive area that could potentially be located elsewhere on the site or configured in a way that was, you know, not potentially just say configured in a way that appears to be contrary to the purpose, spirit and intent of the riparian buffer requirements. So those are issues that I'm having with this. I agree that it's a tough site. I agree that this is not a great place to build a house. If it's a plated lot, they've got that right. And, you know, I recognize that. I, but I'm not sure, I'm wondering about whether or not this proposal is in harmony with the purpose and spirit of the ordinance. And I hope that wiser minds than mine can help me answer that question. Thank you. Thank you, Mr. Meadows. Anyone else have thoughts? Mr. Tarrant. Mike Tarrant. I appreciate those remarks, Mr. Meadows. I couldn't agree with you more. I think, you know, part of me looks at this property and it is at the beginning of a watershed and then this stream is piped in and daylighted and piped and daylighted for several blocks before it ultimately ends up in a feature. So it's not, in my opinion, at a super critical point. And I believe the applicant does fully intend to clean that up in the most, some of that. But again, from the infill standard or excuse me, from the spirit and intent of the ordinance, that's a hard one for me. And I think where I find some comfort is supporting infill development. And I think this, you know, this isn't a parcel and in a rural area and we're trying to cram as much in there. I think, you know, this site, given the stream, buffers is virtually not usable. And, you know, I feel the applicant does have a right to do have, some comfort and it is meeting some portions of the ordinance, while not all of them. Thank you, Mr. Tarrant. Is anyone else? David. The issue I see. Would you mind? Sorry. David Palletta. The issue I see this case raising is how much of the protective zone do we wave? And there's a 50 foot buffer and then a 10 foot no build. And the applicant would like a total of 29.7 feet into that. So we're asked to wave roughly about 50% of the protective zone to allow development. And it's a question I think a lot about when we're asked to wave the buffer or a setback and I've wondered, there needs to be a limit somewhere, 10%, 50%. This one being at 50% is for me too big a waiver. I'm not comfortable going that deep into the buffer. So for that, I'm gonna find, finding a fact for the spirit of the ordinance is not met by this proposal. Thank you, Mr. Palletta. Chad, do you have something? I wanted to, in the spirit of discussion, I just wanted to ask if the applicant could demonstrate or provide evidence about why that much of an encroachment would be necessary. Would that assist you in your deliberation or not? I'm not sure that we got that testimony, but had we gotten it, would that have made a difference? For me, that's relevant and that's an issue because my biggest problem is the size of the encroachment. Not, the lot for the reasons given is a very difficult lot to build in and so the hardships are met. It's the degree of encroachment I'm struggling with. So to answer your question, yes, I'm interested in that. Well, we haven't closed public hearing. Would you applicant, would you like to come, Mr.... And address that specifically? If this was a very small lot and we were building on a large portion of it, encroaching on 50% of the available buffer of the creek, I would probably agree with you that that would be foolish and not in spirit of what the UDO states. Looking at the site and our proposed building, we try to minimize that as our impact as much as possible. Okay. I'm updating else. All right. Does anybody else have any thoughts? Board members? I'll share a couple. I try to agree with you on particularly on this 10 by 10 area. It's even further into this, it's kind of makes me question the placement of that and if there could be a different design and you even said, yes, there could... There are some alternatives there that could mitigate that. So I'm with you on that. I agree with Mr. Taren on his thoughts as well regarding there's a right here we're looking at. Certainly a tough site. So it's preliminary. That's where I'm at or where my thoughts are. So anyone else? Do we, Mike? You can kind of let, I didn't, Mike. Yeah. I think Mike Taren, I think just going back to Mr. Paleta's comment is, you know, I read the staff report and I need to look at the motion here, but there's not a set area of disturbance for the buffer impact, right? It's 19.7 feet plus 10 foot no build and that theoretically could be the entire stream buffer, length of the buffer, which is significant. So I think I would be more comfortable if there was a prescribed certain amount of area that we're limiting the buffer impact to. Agreed, but wouldn't we just be back here for a variance on a deviation from that percentage? So, you know, I don't know that that just kicks the can down the road for us. I don't know that it solves the problem. Fair points. That was Meadows, by the way. All right. Anything else before we. All right, variance, no guidance from staff on this one. Does anybody want to offer a motion? Somebody's got to make a motion and I'll set the motion to grant application with conditions. May everybody make a motion that case number B2-2-0-0-0-1-4, an application for a quest for a variance from a perium buffer and no build setback requirements. Property located at 1608 Gunter Street has successfully met the applicable requirements of the Unified Development Ordinance and it's hereby granted subject to the following conditions. The improvements shall be substantially consistent with the plans and all information submitted to the board as part of the application. All right, we have a motion for approval by Mr. Retchlis. Is there a second? Can I offer an amendment? Perhaps a non-friendly amendment. Maybe. I'm not sure how that process works. I would like to append the motion to remove the 10 by 10 wooden deck from the back of the structure and not have that be included as part of the proposed development. I don't know if that's admissible, advisable, but with that amendment, I could probably make a decision in favor of this variance, so that's my motion. I know that the applicant would have to accept that. Accept that. That's the only thing I know. Would you, is this something that? You're right, Doris. Would it be beneficial, Mr. Meadows, if we move the 10 by 10 to the left side of the home? No? You're saying here? Yes, sir. I think the issue is the same amount of space you're taking up in that buffer zone. If you move it to the left, you're taking up the same amount of area inside the buffer. That's correct. I was thinking more from a distance perspective from Mr. Pallett as quite earlier. All right. So you wouldn't agree with his motion. So, or what are your thoughts on moving? I'm trying to figure out where we're going here. Indeed, indeed. I recognize that this property has a right to develop. I recognize that there's a series of rules in place here that would not allow this property to be developed in the manner that it is proposed. I'm looking for a middle ground, a way to minimize the impact as I understand them on this site. And I haven't heard any testimony or evidence about how a 10 by 10 deck is necessary for the function of this use or is an integral part of either ingress, egress, access, structural issues, none of that information's been provided. So I don't see it as a necessary piece of the site. I see it as an additional impact to the buffer. And so my sense is that this application could be brought into closer alignment with the intent of the UDO by removal of that 10 by 10 wooden deck. And I'm interested in making that motion as part of this, but that's at the will of my colleagues. All right, we've got, go ahead. I'm sorry, you got one more. It is a rear exit of the property and the stairs going down would be an egress for safety reasons. So removal of it, although we could modify plans, that currently is one of the egress points of the home. I have a question. Is it elevated? Yes, sir. All right, Jessica, do you- The Dockry Planning Department not to design on behalf of the applicant, but decks can be within four feet of a property line and so could encroach into that side yard. If it was reoriented, however, that would also change the layout of the deck, but just wanted to point that out. Yeah, well, that makes sense too. All right, so you look like you got some good news or something out here. What's going on? You know, I think I believe the relocation of the deck to a location farther away from the center line of the stream would be prudent and would support that. I would agree. All right, thoughts on that because we're going to get this thing moving. Yeah, either the far left side of the property that Mr. Meadows, that would be sufficient for you. That could be done. All right, how do you want to edit that? First of all, we've got a motion from Mr. Retchels to approve. We have an amendment that Mr. Meadows would like. I would like to attach an additional condition to the motion that the deck be located to the northwestern side of the structure, as far out of the riparian buffer as is technically possible. All right, so we've got a motion and an amendment. Do we have a second or any thoughts on that? Yeah. Mr. Retchels, I'm happy with me. Sorry. Okay, that makes sense. All right, well, all in favor of including Mr. Meadows or amendment within Mr. Retchels's motion, please say aye or raise your hand. Aye. Any opposed? Light sign, all right. That's been added. Is there a second to this motion? Meadows, I'll second. Second by Mr. Meadows. All right, Terry, I'm going to let you go through. Call it. We already did that by voice vote, but as amended, yes. Yes, the entire motion as amended. Yes. Kip. Yes. Meadows. Yes. Letta. No. Rogers. Yes. Retchels. Yes. Tarant. Yes. Pick it. No. Motion passes five to two. All right, by a vote of five, the request for variance has been approved. If you'll get an order, we will not vote on that order today. All right. I'll make a quick correction. Yes. This is Jessica Dockrey, the planning department. Your line can be up to four feet of the property line. A side yard can extend up to four feet into the side yard. So slightly different language. I apologize for the error or the record. For the record. All right. Next case, Terry, what'd you call it? Yes. The case is B2,00019. It's a CD case and it's a request for a variance from the infield development standards street yard requirements. Property is located at 524 and 526 Lakeland Street. This is on residential urban and it's within the urban development tier. Seated for this case is Kip Meadows-Poletta, Rogers-Rechlis-Tarrant and Pickett. All right. And this case has been advertised for the required period of time and no rise to affidavits are on file. Verifying the signpostings and letter mailings. Thank you, Terry. Cole, we'll turn it over to you. Good morning again. I'm Cole Werniger, representing the planning department. The case B2,00019 is a request for a variance from the infield development standards setbacks. The case area is highlighted in red. The sites are in the urban tier, zoned residential urban RU-5 and it's within the city of Durham's jurisdiction. The existing use are vacant residential. Uriah Dorch applicant requests a variance from the unified development ordinance, UDO section 6.8, infield development standards, street yard setback requirement. In order to construct two single family homes, one located at 524 and one located at 526 Lakeland Street, the subject site is on residential urban. 1.1, 2.2 of the UDO, the required street yard setback for a single family dwelling structure is RU-5 is on district 20 feet. The infield development standards for street yards found in section 6.8. Our applicable site is a residentially zoned lot less than four acres in size with the urban tier. Within the infield development standards, the context area is huge to determine required yard as well as building height of the subject lot. Context area consists of existing residentially zoned structures along the same block place, new development on a lot. Subject to the infield standards would have to use the street yard setback that is in the range of existing street yards along the block face. In this case, approximately 23 to 30 feet. The house at 524 is proposed at 7.4 feet and the street at 526 is proposed at 15.4 from the street. The purpose for this is to avoid the string buffer that runs through the rear portion of each lot. If the infield variance is not obtained, then a stream variance would be required and both proposed houses have covered porches and if those were removed from the proposed design, it would increase the distance from the street for each house, but each house would still be closer than allowed with the infield standards. I'm gonna step here for this case, there's actually two different flats. So right now this is 524 and this will be 520. Well, I'll pull up both of them so you can see them. They are both attached in the staff report though on separate sheets. Thank you, Cole. Any questions for Cole? Two questions, sir. The sketch that's included in the application indicates the gravel drive going into the no-build setback. Is that okay for the driveway to be in the no-build setback? Access, it is allowed in repair and buffer. One last question. Across the street, I understand that that's a school and that's a ball field and then there appears to be an institutional piece of property just down the street, opposite side of the street. What is that? I am not sure at this time. Okay. Sorry for that. All right, any other questions for Cole? Thank you, Mr. Tarrant. Like Tarrant, Cole, I believe you indicated that the structures had front porches and if those were not not proposed and the buildings would actually be set farther back, but is there not a provision in the ordinance where uncovered porches can actually encroach into the front yard setback? Uncovered, yes, but these are covered. I'm sorry, covered, covered. Okay. Okay, so not covered, but covered cannot, right? Right, okay. And then the last one, can you verify what the side yard setbacks are for me, please? Yeah, so the side yard setbacks are the same as our U5s on a district would be normally. There is no change to the based on a district of six feet. Thank you. Any other questions for Cole? Mr. Palletta. David Palletta, what's the minimum lot size in this district? The minimum lot size for our U5s on a district is 5,000 square feet, but if a lot is legally recorded and they are within, they build like outside the setbacks, then they're allowed to build on that lot. So in other words, if it was, if it was already like if it was recorded, I think before 1994, as already a recorded lot, then you don't have to basically, if it's under that square footage, you're allowed. So it looks from the packet that these lots were, the boundary line was changed. Correct. So would the minimum lot size apply to the new lot? Yes. Okay. All right. All right, if there are no more questions, let's hear from the applicant. Would you like to come forward, give us a rundown of what we have? Yeah, you're right, Doris, again, these are recorded small lots, which changes the setbacks in the front to 10 feet. Also, it's the block face. Yeah. Since they're small, it also changes the minimum lot size requirement to 2,000 square feet, not 5,000. Sorry, I wanted to clarify that. Yeah, so the front setback would be 10 feet. Again, we're dealing here with a block face encroachment terminated. Yeah, proposing to build two single family homes with no impact to the stream buffer or no build setback, just an impact to your block face requirements of the UDO. I'm having a hard time here, but you first, Mr. Meadows. Meadows, thank you. Great timing. So, I mean, we just heard a case where we talked about this and your timing is just spot on. Difficult lots to build, so. It's my, sorry. You know, I mean, I don't really have we're gonna deal with this one way or another. It is to protect, you know, the riparian buffer. Yes, we can put our money where our mouth is now. That's all I have. Thanks. It's our temp was to completely avoid the no build setback and the riparian buffer here. Any other questions for the applicant? All right, is there anyone here? Oh, you do have one for the applicant? I'm thinking. David? Could you explain and help me just to get a clearer picture of how you changed the boundary lines and what your thinking was? Yes, there were two lots here originally. If you look back in the recorded surveys, one was roughly 10 or 12 feet wide, which clearly would be very difficult to build on. So moving the line over allowed us to actually build two properties. And am I correct? I'm gonna ask, I'm not sure if this is for staff, but I'll ask you since you're here. If you remove the covered porch, could you build one of the houses without a variance? No, the variance is required due to the infill standards of the block face requirements. That's correct. Cause then on the presentation, if the covered porch is removed, they're still within the infill, like they're not meeting the standard still, the variance would just be less. That wouldn't apply to the infill standard. All right, any other questions for the applicant? All right, is there anyone else here to speak in favor of this application for a variance? All right, is there anyone here to speak against this application? All right, let's bring it back to the table here. Thoughts, I know Mr. Meadows gave one or a few. Is there anyone else? Can I say something? Of course. I'm comfortable with this application. This is obviously an urban area. He's gonna use small lots, which is what we're working with in Durham. I'm not really concerned about the front porch encroaching a little bit. So I'm comfortable with this application. Thank you, Mr. Kip. Anyone else? Mr. Terry? I agree with Mike Terry. I agree with Mr. Kip. I think just looking at the street while I understand the infill standards for the setbacks are based on one block face. I think when you look at the buildings along this block and car ports that are inside the right of way and other things along the street, I don't feel like this proposal is necessarily inconsistent with this particular street. Thank you. Anyone else? Oh, Mr. Retchels. Retchels, I concur with Mike Tarrant. I do hope these houses are built for young families since we have such a shortage of houses and not used it as an investment. And that's all I have. Thank you. All right. Anyone else? Can I just add one more thing? Mr. Meadows had asked what the structure across the street was. So I took a look. It's the TA Grady Center, which is a city park of a park maintained structure. Okay. Thanks. All right. All right. Would anybody like to offer a motion? Meadows, I hereby make a motion that application number B220019, a request for a variance from the infill development standards, setback requirements on properties located at 524 and 526 Lakeland Street have successfully developed development ordinance. And it's hereby granted, subject to the following on the improvements shall be substantially consistent with the plans and all information submitted to the board as part of the application. All right. We have a motion to approve by Mr. Meadows. Is there a second? Kip on the second. And Terry, yeah. Kip? Yes. Meadows? Yes. Paletta Rogers? Yes. Retchless? Yes. Tarrant? Yes. Picket? Yes. Motion passes 7-0. All right. By a vote of 7-0, your request for a variance has been approved. I appreciate you coming for the BOA this morning. All right. We got one more case on the agenda. Let's see if we can power through it. Terry, would you like to call it? Yep. The case is B220020, it's a city case. It's a request for a variance from an infill development standard setback requirement. The property is located at 1203 North Driver Street. It's owned residential urban and it's within the urban development tier. Seated for this case is Kip, Meadows, Paletta, Rogers, Retchless, Tarrant and Picket. And this case has been advertised for the required period of time and notarized affidavits, Fairfines signpostings and letter mailings are on file. All right. Thank you. Cole, do we turn it over to you? Absolutely. Good morning. I believe it's still morning. Everett, I'm Cole Reniger, representing the plan department. Case B220020 is a request for variance from the infill development standard setback. The case area is hot in red. The site is in the urban tier. It's owned residential urban 5.2, RU 5.2 and is in within the city of Durham's jurisdiction. The existing use is vacant residential. John Black, applicant requests for variance from the unified development ordinance, section 6.8 infill development standard is street yard setback requirements in order to construct a proposed single family dwelling at 1203 North Driver. The subject site is on residential RU 5.2 and is in the urban development tier. Per section 7.1.2 of the UDO, the required street yard setback for a single family dwelling in the RU 5 Zoning District is 20 feet. The infill development standards for street yards found in section 6.8 are applicable to the site as it is in a residentially zoned lot list in four acres in the urban tier. Within the infill development standards context area is used to turn required yards as well as the building height of the subject plot. The development a lot, the subject to the infill standards would have to use the street yard setback that is in the range of existing street yards along the block base. That is 20 to 30 feet from the street yard. The applicants are requesting a variance from the infill development standard to place house 49.73 from the street yard due to the storm water sewer easement that is on their lap. So in order to meet the infill standards, they would have to be within that stream that easement. Any questions for Cole? Two questions, Meadows. Question number one, is it allowable to construct a structure on top of a storm sewer easement? Is that permitted? It is not. There is also a two foot expansion of that easement that's not on here that is also a no build area. Got it. Is the 49.73 setback proposed by the applicant sufficient to avoid the easement and the setback? Yes. Thank you. All right, any other questions for Cole before we move forward? Mr. Palletto. Cole, could you clarify the square foot size of the lot? I see two different numbers. The survey shows 41.41 and the staff reports has 49.68. I would go by the survey. Generally, the acreage from GIS does differ a little bit, which the staff pulled one for the information, but the plat that's survey is probably more accurate because they do have equipment for that. Ian, would this be designated a small lot so the 5,000 square foot minimum does not apply? I don't believe it does, but again, this lot is already plated. The lot sign is not being changed so that if the fact that it's already plated could already be built on as long as it meets setback standards. All right, any other, Mr. Tarrant? Like Tarrant, Cole, I apologize if I've overlooked it, but could you confirm the side and rear setbacks for this property as well, please? Right, so the side yard setbacks are the same as the standard zone district because infill standards don't affect those. So again, it is 25 feet and six feet. Thank you. You're welcome. All right, any others? Thank you, Cole. So I'd like to come forward and good morning. My name's John Black with Riverbank Construction, speaking on behalf of the owner of the property. Boy, you guys seem to be getting a lot of these because I think there is a bit of a crisis here with housing in this growing town. I think it's obvious the difficulty of building on such a lot. I mean, the hardships there, obviously the owner didn't put it there and we're just trying to do the best we can to work with it. And I think that the ordinance that's in question mentions preserving the basic feel of the street. This is section 6.8 of the UDO. But it's important that new construction complements existing construction and respects existing design. And that is something that we intend to do with whatever can be proposed here. It would simply have to sit further from the street. And I just, I think the existence of a house in an otherwise vacant lot in a neighborhood with a new resident that can contribute to the community is more beneficial than having all your houses in line. So that's why we're here. Thank you. All right, any questions for the applicant? Mr. Tarrant. Mike Tarrant. Good morning, sir. Good morning. I just had two questions. One is I realized this appears to be a rather large storm pipe, but have you considered running, rerouting it, putting a structure on the south property line and running it down and then straight across the front of the property? And the reason I ask is on the north side of the property, it appears that the western most point of that easement is about 30 feet. So that would be a little more consistent with the rest of the block face. And just curious if you considered that at all. We'd prefer not to obviously because of the cost of rerouting such a thing. And I will mention that 49 foot setback that was mentioned, that's an average, because as you can see the pipe and the easement are cutting diagonally across the lot so we don't get a straight line. I think we could design something that reaches further to the street up on that north side. It just wouldn't be the entire front of the home, but it could be like the porch that reaches out there a little closer. So that is something we considered. And then the second question was really, if the rear setback is 25 feet, it looks like you only have about 42 feet from the rear property line to the existing easement plus the rear setbacks. That's a really small footprint and I'm just curious as the feasibility of an attractive home that would be marketable in that size of the block. Absolutely, and this is something that our company is seeking to address just in the climate that the city's in right now. As people flock to the city and property values increase and the cost of living here increases, it's getting more difficult for people to live here, especially starting out. So we're trying to make things more feasible. So that means doing our business a little different, cutting back things on our end to try to make projects that are more affordable for people. And so if that means a smaller footprint is required on the slot, we'll do what we can in the design of it to make it work for us as well as a potential buyer. But I think that restriction in footprint and square footage, that only helps, I think preserve the feel of this street because homes on this street now, they're mostly not more than 1,400 square feet, most of them around 1,000. So us being restricted in the size of the house we could build, I think it would only help us fit in. Thank you. Yeah, makes sense. Anybody else? Mr. Kip? Yes, I just have a context question. I just looked at a street view and it looks like the house to the left of your lot is built right on top of the stormwater easement. Is that your understanding? Is it possible to look at an aerial? I think we've seen this. I don't believe it cuts behind. These kind of places before. It's behind it, okay. I believe the house sits in front of the easement. Oh, it's in front of the easement. Okay, because it is quite close to the city. It is close, yeah. Okay. But I can't say for certain. Right. Just saying. Yeah, I feel like we've seen a case where a home or some kind of structure was right on top of said easement and we were like, what the hell? How did that happen? It was happen, right? That's right. All right. Any other questions for the applicant? All right. Is there anybody else here to speak in favor of this application? Seeing none. Is there anyone here to speak against this application? Seeing none. All right. Bring it back to the table. Any discussion? Certainly a, not the fault of the property owner on this one. This easement being right in front of this property cutting through diagonally at that way too. So is this a small footprint of availability? Mr. Meadows. Meadows, I heard from the staff that you cannot build a structure on top of the easement. There is no other way for a building to be built on this site. All right. That's right. All right. Anyone else? What do anybody like to offer a motion? Meadows. Meadows. I hear by make a motion that application number B2200020 a request for a variance from the infill development standard street yard requirements on property located at 1203 North Driver Street has successfully met the applicable requirements of the unified development ordinance and is hereby granted subject to the following conditions. One, the improvements shall be substantially consistent with the plans and all information submitted to the board as part of the application. Mr. Meadows. Is there a second? A second. Mr. Retchelson. Terry, you want to take it away? Okay. Yes. Valetta. Yes. Rogers. Yes. Terrant. Yes. And Pickham. Yes. Motion passes 7-0. By a vote of 7-0, your request for a variance has been approved. I appreciate you coming before the BOA this morning. All right. Old business, none. New business, none, at least on the agenda. Approval of orders, I'm assuming we're not going to vote on 22. We're not going to vote on 14, but we can vote on the last two. So B-2-2-0-0-0-1-9 need a motion and a second for each of these. Meadows, you bet to do it. Meadows, move approval of the order for B-2-2-0-0-0-1-9. All right. Is there a second? Retchelson. Retchelson, the second. All in favor, please say aye. Aye. Aye. Any opposed? None. All right. B-2-2-0-0-0-2-0 need a motion. Meadows, so moved. Meadows on the first. Who would like to second it? Terrant, second. Terrant on the second. You got this, Terry. Am I going too fast? Oh no, I got it. All right. All in favor, please say aye. Aye. Any opposed? All right. Motion passes unanimously. Next meeting is next week, June 28th. I'll see you here at 8.30 and until then. June 28th, right? Woo, don't say the 26th. It will not be in person. It will be via Zoom. All right. See you then.