AGENDA #5c

 

MEMORANDUM

 

TO:                  Mayor and Town Council

 

FROM:            W. Calvin Horton, Town Manager

 

SUBJECT:       Response to Petition from Mr. David Fernandez

 

DATE:             February 23, 2004

 

 

This memorandum responds to a petition from Mr. David Fernandez that was presented to the Council on February 9, 2004, and referred to the Town Manager for comment.

 

THE PETITION

 

Mr. Fernandez petition is attached.  It asks for a Town Council review of an interpretation of the Special Use Permit that was approved for 1152 Airport Road (former home of Growin’ Green nursery).  At issue is a condition of the Special Use Permit that reads as follows:  “That the owner will use this property only for a residence and operation of a landscape nursery business.”  The petition states:  “Kovens Construction, current owners of The Property, request that the SUP provision for use as a residence be interpreted not as a requirement but simply as a permitted use.  Furthermore, the owner requests that the Council interpret the SUP to mean that a landscape nursery operation is the permitted use of the site without the assumption that the business owner must be the property owner.”

 

DISCUSSION

 

The petition seeks a Council review of a staff opinion interpreting a provision of a Special Use Permit.  There is no mechanism in Town procedures or law, or State law, for a review of such an opinion.  Citizens routinely speak with Town staff members to learn about process and standards to gain information that can be used as applications for development and permits are prepared; and, staff members routinely offer their opinions.

 

No application has been filed for the use that has been proposed in Mr. Fernandez’ petition.  Pursuant to the provisions of the Town’s Land Use Management Ordinance, if an application is submitted and action is taken, an aggrieved party may appeal the decision to the Board of Adjustment, as provided by law.  In this case, if the petitioner were to seek an administrative permit (Zoning Compliance Permit) to open a landscaping business as described in the petition, and the application were to be denied, that denial could be appealed to the Board of Adjustment.   No application has been submitted and no action has been taken with respect to this property.  We recommend that the Council take no action in response to the petition.

 

The Special Use Permit process, established in the Land Use Management Ordinance, is designed to consider applications for development that are of a nature likely to be accompanied by impacts.  The process involves a public hearing and sworn testimony, multiple opportunities for citizen input and comment, and a decision by the Council based on specific findings.  An important component of the process is assurance that specific conditions of approval that are adopted by the Town Council cannot be changed unless a new and similar process is followed, with provisions for public review and comment.  In this case, if the property owner seeks to vary from a condition of approval, the Ordinance directs that the owner should submit an application to modify the Special Use Permit.    

 

SUMMARY AND RECOMMENDATION

 

We have advised the petitioner and the property owner that one procedure for accomplishing the use of the property that they describe would be to seek modification of the existing Special Use Permit.  Another option available to the property owner is to apply for an administrative Zoning Compliance Permit to authorize the proposed use.  If that permit were to be denied, appeal of the decision could be brought to the Board of Adjustment according to standard procedures. 

 

Given the present circumstances, we do not believe there is any action for the Council to take at this time.

 

ATTACHMENT

 

1.         Petition from Mr. David Fernandez (p. 3).