SPECIAL MEETING

The Zoning Board of Adjustment (hereinafter “Board”) for the Charlotte Zoning Area held a special meeting in the North Conference Room at the Government Center, 600 East Fourth Street at 10:30 a.m., March 4, 2008 to deliberate Case No. 07-056 and to vote and discuss Case No. 07-055. Andrew Zoutewelle, called the meeting to order. 

Present:                       Andrew Zoutewelle, Jeffrey Davis, Robert Eaton, Lee McLaren, Michael Knotts,
             
Also Present:              Katrina Young, Interim Zoning Administrator
Sonda S. Kennedy, Clerk to the Board
Terrie Hagler-Gray, Assistant City Attorney
Adkins Court Reporting

Special Deliberations: CASE NO. 07-056 - E. Independ. Blvd, Independence Woods Subdivision    
                                    CASE NO. 07-055 - 3423 South Boulevard
                                   

CASE NO. 07-056 – (APPEAL)  E. Independence Blvd, Independence Woods Subdivision  - John Bordsen -   Tax Parcel Number 133-081-22, appealing the Zoning Administrator’s decision that R-4 single family district may exceed the density requirements of dwelling units per acre.

The following sections of the Zoning Ordinance apply:
Code Section 9.205(1)(a) states the maximum dwelling units in an R-4 zoned district is four (4) units per acre. Code Section 9.205(5)(a) Cluster Development  a cluster development need not meet the minimum lot area and lot width requirements set out in subsection 9.205(1), provided that the development does not exceed the maximum residential density for the district, and provided that each lot meets the minimum lot area and lot width requirements set forth in Table 9.205(5). Code Section 2.201 Density, Gross Residential.  The number of residential dwelling units per acre of land is determined by dividing the number of dwelling units by the total number of acres in the parcel to be developed.
Code Section 2.201 Cluster Development.  A tract of land, at least 10 acres in area, under individual, corporate, firm, partnership, or association ownership, planned and developed as an integral unit, in a single development operation or a definitely programmed series of development operations and according to an approved preliminary site plan. Code Section 1.106 states that it is not intended that this ordinance will in any way repeal, annul or interfere with the existing provisions of any other law or ordinance except the zoning ordinance which this ordinance replaces.  In addition, it is not intended that this ordinance will in any way repeal, annul or interfere with any rules, regulations or permits which were legally adopted or issued under previous ordinances for the use or development of land or structures.  Finally, it is not intended that this ordinance will interfere with any easements, covenants or other agreements between parties.  However, if the provisions of this ordinance impose greater restrictions or
higher standards for the use of a building or land, or for yards or size of structures than is called for by other ordinances, permits, easements or agreements, then the provisions of this ordinance will take
precedence over the others and will control the use or development, except as otherwise provided under Section 1.105. 

At its meeting on January 29, 2008, the City of Charlotte Zoning Board of Adjustment (“Board”) upheld the Zoning Administrator's decision that public notification is not required under Section 4.106 when a single-family subdivision project is approved. (see January 29, 2008 minutes)

 

At this special meeting on March 4, 2008, the City of Charlotte Zoning Board of Adjustment (“Board”) deliberated this case and adopted the following findings of fact and conclusions of law.  Board Member Lee McLaren, who recused himself from the hearing did not deliberate or make any decisions in this part of the meeting. Alternate Board Member Chet Rabon, who sat in on the hearing of this case, voted against the motion which passed and therefore is not present today.  The four members present today all voted on this case.

The Board based its decision on the following findings of fact:

1. Section 4.106 provides that there be public notification for certain land uses which because of their nature or scale, may have a particular impact on both the immediate area and the community as a whole.
2. The Zoning Administrator determined that only certain uses for which there is a specific reference to Section 4.106 in the Zoning Ordinance require public notification per that section.  These uses that require public notification are:
• Land Clearing and Inert Debris Landfill (LCID) Offsite (Section 12.503)
• Quarries (Section 12.505)
• Sanitary Landfills (Section 12.507)
• Medical Waste Disposal Facilities (Section 12.525)
• Solid Waste Transfer Stations (Section 12.526)
3. The intent of Section 4.106 was to restrict notice requirement to address the type of uses as identified by the Zoning Administrator which substantially impact both the immediate area and the community as a whole.
4. A single-family subdivision project is subject to the regulations found in Section 9.201  of the Zoning Ordinance, which does not specifically require public notification per Section 4.106.
5. The Zoning Staff did not provide public notification of the approval of the Independence Woods Subdivision per Section 4.106.
6. Neither the former or interim Zoning Administrator could recall ever giving notice to adjacent property owners of a subdivision approval pursuant to Section 4.106.
7. The applicant testified that an increase in density for a subdivision from R-4 to R-5 Cluster would have impacts on the immediate area, such as traffic impacts, water and sewer concerns, and public safety.  However, these impacts do not appear to be unique to this particular subdivision.
8. Subdivision approvals by city staff routinely impact surrounding properties, but do not necessarily impact the entire community as required for notification per Section 4.106.

Conclusions of Law

• The decision of the Zoning Administrator not to provide public notification, per Section 4.106, of the approval of Independence Woods Subdivision is affirmed.

The decision of the Board to adopt the findings of fact and conclusions of law was expressed in a motion by Board Member Michael Knotts  and seconded by Board Member Robert Eaton.

Ayes:  Zoutewelle, Davis, Eaton, Knotts
Nayes:  None

 

 

CASE NO. 07-055– (APPEAL3423 South Boulevard  - Kim Thi Tu (Represented by Joseph Ledford) -   Tax Parcel Number 149-053-14, appealing the Zoning Administrator's decision that the use located at 3423 South Boulevard is a nightclub.

Board Member Lee McLaren joined the board to deliberate, discuss and vote on this case.

The following sections of the Zoning Ordinance apply:
Code Section 9.803. Uses permitted under prescribed conditions. (19) Nightclubs, bars and lounges (B-1 and B-2 only), provided that: Any structure in which a nightclub, bar or lounge is the principal use shall be located at least 400 feet from any residential use or residential district.  Code Section 2.201 Definitions. Nightclubs. Any commercial establishment serving alcoholic beverages and providing entertainment for patrons including bars, lounges, and cabarets.  Code Section 4.103. Certificate of occupancy required.  It is illegal for any person to occupy or use any land, building, or structure or change the use of any land, building, or structure, except for land used for agricultural purposes, without first obtaining a certificate of occupancy.  Code Section 4.104. Zoning review.  Engineering and Property Management shall conduct reviews and make approvals of zoning compliance under these regulations for the issuance of zoning permits, change of use permits, and sign permits related to planned multi-family projects and commercial projects, including office, institutional, retail and industrial projects.  Neighborhood Development shall conduct reviews and make approvals of zoning compliance under these regulations for the issuance of zoning permits, change of use permits, and sign permits related to all other residential projects, and all existing land uses.

At a special meeting on March 4, 2008, the City of Charlotte Zoning Board of Adjustment (“Board”) upheld the Zoning Administrator's decision that the use located at 3423 South Boulevard is a nightclub.

The Board based its decision on the following findings of fact:

1. Ralph and Sandra Hembree, own tax parcel code (“parcel”) 149-053-14, which is located at 3423 South Boulevard.
2. The parcel is zoned B-2.
3. Code Section 9.803(19) states that nightclubs, bars and lounges are permitted uses in (B-1 and B-2) zoned districts, provided that any structure in which a nightclub, bar or lounge is the principal use shall be located at least 400 feet from any residential use or residential district.
4. Code Section 2.201 defines a nightclub as any commercial establishment serving alcoholic beverages and providing entertainment for patrons, including bars, lounges, and cabarets.
5. Code Section 2.201 defines a restaurant as an establishment designed, in whole or in part, to accommodate the consumption of food and/or beverages.
6. The intent of the ordinance is to distinguish between a nightclub (serve alcohol and provide entertainment as primary use) and a restaurant (to provide food and beverages as the principal use) although alcoholic beverages may be served in restaurants.
7. The Applicant testified that there is dual use of the property as a restaurant and as a bar/nightclub.
8. The Zoning Administrator determined that the primary use of the property is for the consumption of alcoholic beverages and entertainment, primarily pool billiards, it is a bar/nightclub.
9. Both the Zoning staff and the Charlotte Mecklenburg Police officers testified that the establishment exhibited numerous characteristics of a nightclub/bar/lounge use, such as: a bouncer, dance floor, pool tables (5 to 6), patrons drinking alcoholic beverages and playing pool, loud music, and hours of operation being late in the afternoon until the early hours of the morning.  No lunch provided.

 

10. A menu was inspected that consisted of only chicken wings, french fries, eggrolls, tamales, and popcorn shrimp and the only food item visible when the Zoning Inspector visited the establishment was chicken wings.
11. There was no dedicated kitchen area in which to prepare and cook food and no dishes were evident in exhibits.
12. There was a large quantity of beer stored and consumed at the establishment.
13. The CMPD officers testified as to the increased level of police activity(aggravated assault and robberies) at the property which is more in line with enforcement found at nightclubs than at restaurants.
14. The establishment is located approximately 168 feet from a residentially zoned district.
15. The Zoning Ordinance specifies that in the event of a conflict in zoning provisions, the more stringent code restrictions should apply.
16. Zoning Staff is not bound by North Carolina ABC regulations as offered by the Applicant.

 

Conclusions of Law

• The principal use of the premises is not for a restaurant pursuant to Ordinance Section 9.802(75).
• The principal use of the premises is a bar, which is only permitted in accordance with Ordinance Section 9.803(19).  The structure is located within 400 feet of a residentially zoned district, and therefore, is an unlawful nightclub/bar pursuant to Ordinance Section 9.803(19).
• The decision of the Zoning Administrator that the property at 3423 South Boulevard is operating as a nightclub, bar or lounge is upheld.

The decision of the Board to adopt the findings of fact and conclusions of law was expressed in a motion by Board Member Knotts  and seconded by Board Member Eaton. The motion carries unanimously.

Ayes:  Zoutewelle, Davis, McLaren, Eaton, Knotts
Nayes:  None