MEMBERS PRESENT: Mayor Pro Tem Steve Yokeley, Commissioners Jim Armbrister, Shirley Brinkley, Dean Brown, and Jon Cawley

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1 MOUNT AIRY, NORTH CAROLINA REGULAR MEETING MINUTES April 16, 2015 MEMBERS PRESENT: Mayor Pro Tem Steve Yokeley, Commissioners Jim Armbrister, Shirley Brinkley, Dean Brown, and Jon Cawley APPROVAL OF AGENDA: On motion by Commissioner Brown, seconded by Commissioner Brinkley and passed unanimously, the agenda was approved. CONSENT AGENDA: On motion by Commissioner Brinkley, seconded by Commissioner Brown and passed unanimously, the following items were approved by way of consent agenda: APPROVAL OF JANUARY 29-30, 2015 BOARD WORK SESSION MINUTES; APRIL 2, 2015 REGULAR MEETING MINUTES: RESOLUTION # MAKING PARKS & RECREATION COMMISSION APPOINTMENTS: RESOLUTION MAKING PARKS & RECREATION APPOINTMENTS RESOLUTION NUMBER WHEREAS, Dr. Greg Little s appointment to the Parks & Recreation Commission expired on March 31, 2015 and he is eligible for reappointment; and WHEREAS, Scott Kniskern s appointment to the Parks & Recreation Commission expired on March 31, 2015 and he is not eligible for reappointment; and WHEREAS, it is recommended that Dr. Greg Little be reappointed to the Parks & Recreation Commission for a three-year term expiring March 31, 2018; and WHEREAS, it is recommended that Joey Slate be appointed to the Parks & Recreation Commission for a three-year term expiring March 31, 2018: NOW, THEREFORE BE IT RESOLVED BY THE CITY OF MOUNT AIRY BOARD OF COMMISSIONERS MEETING IN OPEN SESSION THAT: Section 1. Section 2. Dr. Greg Little is hereby reappointed to the Parks & Recreation Commission for a three-year term expiring March 31, Joey Slate is hereby appointed to the Parks & Recreation Commission for a three-year term expiring March 31, 2018.

2 Section 3. This resolution shall become effective upon approval. Approved and adopted this the 16 th day of April, RESOLUTION # APPROVING TAX RELEASES: APPROVAL OF TAX RELEASES RESOLUTION NUMBER WHEREAS, a list of taxes to be released has been submitted by the Revenue Collections Assistant II in her capacity of Tax Collector for the City of Mount Airy Finance Department; and WHEREAS, North Carolina General Statute provides for settlement of such taxes; and taxes: WHEREAS, North Carolina General Statute provides for release or refund of NOW THEREFORE BE IT RESOLVED BY THE CITY OF MOUNT AIRY BOARD OF COMMISSIONERS MEETING IN OPEN SESSION THAT: Section 1. Section 2. Said taxes be released or refunded in accordance with said statutes for the reasons stated on the attached list. This resolution shall become effective upon approval by the Board of Commissioners of the City of Mount Airy. Approved and adopted this the 16 th day of April, (end of consent agenda) PUBLIC HEARINGS: a) Board to Hear Public Comment Regarding Conditional Use District Rezoning Request for Property Located at 1001 Worth Street (Quasi-Judicial Hearing): Mayor Pro Tem Yokeley: The hearing for consideration 2015-REZ-02/2015-CUP-02 is now in session and will focus on applications submitted by Mr. Justin Horne for the property located at 1001 Worth Street. The purpose of this application is to rezone the.223 acre property from B-5 (Medical Business) to CU-B3 (Neighborhood Business-Conditional Use) with an accompanied conditional use permit to allow indoor office and sales uses. If you feel that any member of the board might have a conflict of interest in hearing the case, please address the board now prior to any testimony or information being presented.

3 Hugh Campbell: One of the first questions for the board and audience is to identify the parties-in a quasi-judicial hearing, there are parties just like in any court proceeding. The parties in a quasi-judicial hearing of this nature would be the applicant and also the immediate neighbors whose property values could be affected by the proposal tonight. A party has certain rights at a quasi-judicial hearing including the right to present evidence, cross-examine witnesses, present rebuttal evidence, and to be represented by an attorney of their choosing. If anyone has any objections, please raise your hand-if not, I will proceed. The other reason it is important is that you understand the alignment of the burden of proof because initially, the applicant has the burden of proof to move forward with the hearing tonight. The party having the burden of proof is required to prove by competent material and substantial evidence the existence of those facts which entitle that party to a favorable answer on the issues presented. When we get to the end of the hearing, Mr. Goodall will be presenting the issues for your consideration and remember that the applicant has the initial burden of proof by competent material and substantial evidence by the existence of those facts presented. The term competent evidence doesn t prevent you all from relying on evidence that would not be admissible in court under the rules of evidence so long as there is no objection or if the evidence appears to be sufficiently trustworthy, then a court could rely on that evidence. The term competent evidence doesn t include the opinion testimony of lay witnesses with respect to any of the following issues: 1-the use of property in a particular way would affect the value of other property, 2-the increase in vehicular traffic resulting from the proposed development would pose a danger to the public safety, 3-matters about which only expert testimony would generally be admissible under the rules of evidence in a court of law. Of those three issues, expert testimony would be required in order to submit admissible, competent and substantial evidence. The constitution of NC Law guaranteed to the parties a hearing based upon fair trial standards-the board is sitting tonight as the judge-you must be impartial. Members of the board making quasi-judicial decisions shall not participate in or vote on any quasi-judicial manner in which you have an impermissible conflict of interest. An impermissible conflict of interest would include having a fixed opinion prior to the trial that isn t susceptible to change, undisclosed communications with any party, a close familial business associational relationship with the party, or any financial interest in the outcome of the matter before you. Simply knowing a party or expressing an opinion about the general policies involved is not an impermissible bias. So long as you can listen to the evidence and make your decision based on the evidence presented, then you do not have an impermissible bias. For purposes of the record, let me ask each of you as a board member to raise your hand if you have or feel like you have a fixed opinion, communications with any party prior to tonight s hearing, whether you have a close family, business or associational relationship with the party, or if you have any financial interest in the outcome of the matters presented. If you have any of those things that you think need to be disclosed, please raise your hand. Commissioner Armbrister: I briefly spoke with Dr. Street before I came in and just found out he was here for the purpose of the hearing and he is also my eye doctor. Hugh Campbell: Is there anything in that relationship that would prevent you to listen to the evidence and making a decision based on the evidence presented? Commissioner Armbrister: No sir.

4 Hugh Campbell: I will ask the parties and board members-based on what has been disclosed, do you have any concern about Commissioner Armbrister rendering a decision tonight. Parties: No. Board Members: No. Mayor Pro Tem Yokeley: I want to disclose that I do know the parties on both sides that I think will be speaking for and against. Hugh Campbell: Anything about those personal relationships that gives you any predisposition to hearing the case? Mayor Pro Tem Yokeley: No. Hugh Campbell: Can you listen to the evidence and make a decision based on the evidence presented tonight? Mayor Pro Tem Yokeley: I can. Hugh Campbell: To the parties and board members- based on what has been disclosed, do you have any concern about Mayor Pro Tem Yokeley rendering a decision tonight? Parties: No. Board Members: No. Mayor Pro Tem Yokeley: When the board enters into deliberations to decide the case, no further testimony shall be presented. Two separate decisions will be made by this board regarding this case and will be handled in the following manner. A decision regarding the request will be addressed first and will be one of the following-a) the board can grant the rezoning as requested or with modifications; b) continue the request; c) deny the request. If the rezoning request is approved, the decision regarding issuance of the conditional use permit will be one of the following-a) approve the issuance of the permit as requested; b) approve the issuance of the permit with additional conditions; c) continue the request; d) deny the request for the permit. All parties who plan to testify in this case may come forward at this time and be sworn in. Those who testify must state your name and address at the podium for the benefit of the board s clerk. All material presented must be given to the clerk and will become part of the record. The board can only accept sworn testimony-no hearsay evidence is admissible. City Clerk Nicki Brame administered the following oath to the individuals planning to testify in this case. Please raise your right hand. Do you swear or affirm that the evidence presented will be the truth, the whole truth and nothing but the truth, if so, please say I do. Mayor Pro Tem Yokeley: At this time, we will recognize Andy Goodall, who will present the case for the city. Andy Goodall, 300 South Main Street, Mount Airy, NC: Before I start, I want to submit the mailing list as evidence, as well as a copy of this presentation. Tonight s case is the property at 1001 Worth Street, which is currently zoned B-5 (Medical Office). The request by Justin Horne is to rezone this property to CU B-3 (Neighborhood Business-Conditional Use) to allow for indoor office sales. The case is broken up into two separate cases-the first case is to look at the rezoning request to go from B-5 to CU B-3 for the proposed use for the indoor

5 office sales and the second (if the rezoning is approved) will be for the conditional use permit. There are some recommendations by the Planning Board for limited business professional and personal services as well as retail trade uses (that list is in your packets). The uses that would be allowed or that were recommended by the Planning Board are highlighted in orange. The second and most important aspect of a conditional use permit is the condition of no outdoor storage or display and I will get to the importance of that in a moment. Andy showed a zoning map of the property and surrounding area along with photographs of the property and area surrounding the property. The property is.223 acres and has a roughly 1,500 square foot office building on it with around 10 parking spaces. All of the properties south of this property have been acquired by Northern Hospital of Surry County. Surrounding the hospital area are several B-3 zoning districts similar to what we are looking at tonight. There are also some B-4 and more neighborhood business zoning to the north. The Planning Board had their meeting for this case on March 23, 2015 and they looked at the case and recommended the following statement of consistency (as you can see in your report, the recommendation in the Vision Plan at the moment is that for this area around the hospital, that the office and mixed uses be associated with the hospital): The request is not consistent with the Vision Mount Airy Plan s recommendation for office and mixed uses associated with the hospital. They recommended a Statement of Reasonableness: That the request is reasonable, in the fact that the limited uses are similar to those currently allowed in the B-5 zoning district (with the addition of non-medical uses) and that the condition that limits storage and displays to indoors only will keep the limited uses in general harmony with the surrounding area. The thought with this was that while the carport sale business inside that building, if you limit the displays inside only-if you are looking at the building from the outside, an office looks like an office. Because there is a sign on there, you will know what the business is-but there won t be a bunch of stuff stacked up outside that would make it not fit with the surrounding properties. That was their recommendation and then they made the recommendation to approve the request. As far as notification, I just distributed the mailing addresses that the notices were sent to. The property was posted for this rezoning was posted on April 6, The notice for the quasi-judicial public hearing was mailed out on April 6, 2015 and there were five adjoining property owners and one was sent to the applicant property owner and publication was in the Mount Airy News on both April 5 and April 12, As far as procedures for adoption, before voting on the rezoning request, you will need to adopt a Statement of Consistency and Statement of Reasonableness and then vote on the request. There are nine Findings of Fact for which a Conditional Use District Rezoning-once you vote on those, then you can vote on the entire conditional use request. Hugh Campbell: I think it will be appropriate to first ask the applicant if he has any questions for Mr. Goodall-he has no questions. Any other questions from other parties? Bruce Gustafson: Why are you rezoning it to B-3 when all around it is B-5 and obviously, it was grandfathered in when Farm Bureau was in the building? Andy Goodall: The feeling with this property is that it is on the edge of the B-5 district just like all of these properties here. The building has been sitting vacant for many years and it is

6 obvious that because of that, it wasn t going to be used for medical uses and by putting the conditions on the rezoning by keeping the display and storage inside the building and also limiting the uses that it would aesthetically fit the area even though the Vision Plan doesn t recommend for those types of uses. Right here is all residential-you have one medical building right here and everything else is centered in this area so in my professional opinion, that would be considered the edge of the area. Commissioner Brinkley: I drive down there frequently and it appears that it is already being used. Is it standard procedure for someone to improve the property before we do this? Andy Goodall: Yes-and that is how we ended up here tonight. It isn t typical-normally, the process is before anyone does any work to a building, they get either a zoning waiver or a change of use form from my department. Because they were improving an office building in the same classification, they didn t ask for that so it wasn t found out they were operating a business until the work was completed and the signs had gone up. At that point, we approached Mr. Horne that he needed a change of use permit and when we went to issue that, we realized the property was zoned B-5, which doesn t allow that type of use. He submitted the rezoning application first for a straight rezoning-we talked about the fact that it might be considered spot zoning so he may want to submit a conditional use district application limiting the use of the property as well as putting those conditions on outdoor storage to address that. With that said, they will speak on how much money they have spent on this building, we have allowed them to operate while going through this process. If it is turned down, they will have to stop using the building for that business and they will have to find a use within the B-5 category. Commissioner Cawley: Since we have been doing these hearings, it says the burden of proof is on the applicant. Would you explain to me how they met any burdens of proof? Andy Goodall: They haven t presented it to you yet. Commissioner Cawley: They don t do that with the Planning Board? Andy Goodall: The Planning Board is just a recommendation-the hearing is a courtesy hearing not quasi-judicial. Bruce Gustafson: When were the mailings about the hearing mailed out? Andy Goodall: March 23, Bruce Gustafson: Why weren t the adjacent property owners notified? Andy Goodall: Adjacent property owners were notified by mail just like they were for this case tonight. We got the addresses from the tax records on each of those properties that touch that property. Bruce Gustafson: I receive my tax statements in Winston Salem every year but didn t receive any notice of this hearing. Andy Goodall: I don t know if it is my place to cross examine-especially when it isn t my case, but can I ask Mr. Gustafson a question? Hugh Campbell: Is this the certificate of mailing? Andy Goodall: Yes that is the certificate of mailing.

7 Hugh Campbell: If you don t mind, why don t you hand that to Mr. Gustafson. What is being handed to you is what is being introduced as evidence-this is the certificate of mailing where Mr. Goodall indicates to whom he mailed notices of tonight s hearing. Bruce Gustafson: The Northern Surry Office Condos isn t the mailing address-the condos are individually owned. Hugh Campbell: What is the 911 Worth Street address then? Bruce Gustafson: That is one of the addresses of the building-it goes from 911 to 917. Hugh Campbell: Is that the official mailing address for the Northern Surry Office Condos? Bruce Gustafson: That is the mailing address to me as Secretary-Treasurer of the Board of the Northern Surry Condominium Association. Hugh Campbell: Is that the address that is listed with the tax office? Bruce Gustafson: That is my address in connection with the condos but my taxes come to me in Winston Salem. Hugh Campbell: Can we take a minute to look this up on the GIS? Andy Goodall: I can tell you that I did I.D. those properties with GIS and that is the address that was on there. Mayor Pro Tem Yokeley: Let s take a five-minute recess to bring this information up on the computer. Hugh Campbell: The information is up on the computer and that is the official Surry County address. That is the address that is listed for the owner. Can you contend there are people who didn t get proper notice who aren t here tonight? Bruce Gustafson: We are here and we didn t get proper notice. Hugh Campbell: Have you waived the objection by being here? You are objecting that the notice wasn t proper but yet you are here. Bruce Gustafson: Only because I talked to Mr. Goodall. Hugh Campbell: I understand-but you are here. Do you contend that there are people who are adjoining property owners who would be parties who didn t get notice and who aren t represented here tonight? If that is the case, we may need to continue the hearing. Bruce Gustafson: We can solve this whole thing by not changing the zoning and allowing Mr. Horne to conduct his business just like Farm Bureau did under the B-5 district. Hugh Campbell: This is an opportunity to ask questions and if you want to present evidence, you can do that at the appropriate time. This is a quasi-judicial hearing and the purpose of this hearing is to present evidence and for the board to render a decision based on the evidence presented. The notice of the hearing was published in the Mount Airy News and copies were mailed to the interested parties including Northern Surry Office Condos at 911 Worth Street, Mount Airy, NC Any other questions for Mr. Goodall? Mayor Pro Tempore Yokeley: Mr. Goodall, can you go back to the zoning map? The medical office that is to the left of that-that is M-1 and not B-5, is that correct? Andy Goodall: Correct-that is zoned industrial. Commissioner Cawley: Is that where the 911 Worth Street is? Andy Goodall: That is zoned B-5. Commissioner Cawley: So that would be up the hill to the right of that property. Andy Goodall: The 911 property is this corner property at the corner of Worth and South Streets.

8 Mayor Pro Tempore Yokeley: Is medical office a permitted use in M-1 or is that grandfathered in also? Andy Goodall: I believe it was permitted in that district. We had discussed rezoning this property to M-1 but felt that the uses allowed in M-1 would be a worse fit than B-3. Commissioner Cawley: When the Farm Bureau office was grandfathered in, how long has that property been B-5? Andy Goodall: It has probably been B-5 since the zoning was put in place in that area in 2002 because I have found no records of a zone change for that property. Commissioner Cawley: So they put a building that was in business doing something else in a zone Andy Goodall: Yes in a legal non-conforming use and the way that works, you can continue to operate under that use but once you suspend the operation, if you don t continue that use within six months, then it must follow the current zoning that is on the property. Since that property has been vacant since 2006, allowing them to use the property as an office like that is not an option anymore. Commissioner Cawley: Is there a reason why you would go to the edge of that property and make it B-5 when if you don t go to it, it remains M-1 and when you make it B-5, it isn t B- 5? You took the State Farm office and zoned it B-5 and they zoned it B-5 knowing that it wasn t going to be used as B-5. If they hadn t included it when they did the rest of this future expansion zoning, it would be M-1 or whatever it was before. Andy Goodall: I don t know what it was before. Commissioner Cawley: So as I understand it, we are dealing with a property that has only been zoned B-5 and has never been used for B-5. Andy Goodall: That is correct. Commissioner Brinkley: So the reason we have to do something now is because it has been sitting idle for so long. Andy Goodall: Yes. You can continue the use within six months of the discontinuance and it has been so long since 2006, we can t continue to use it as a non-conforming use. Commissioner Brinkley: Where is that in the paperwork that we have? Andy Goodall: It is in the zoning ordinance-not in your packet. Commissioner Brinkley: So we are committed to having to change this? Andy Goodall: You don t have to if you find that the evidence isn t sufficient. Commissioner Brinkley: So the question from me is the comment that was made-why can t we leave it as it is and let him use it as he is planning to use it-is that going to be a problem? Andy Goodall: Quasi-judicial doesn t have anything to do with this request down the road. What is being implied is that you grant a use variance-that use isn t allowed in B-5 but you are going to allow it and use variance s are illegal in NC so you can t grant that. You don t have the power to do so. Commissioner Armbrister: Is this just basically because it doesn t meet the Vision Plan? Andy Goodall: This is because the use that is being proposed isn t allowed in a district that it is currently zoned. We deal with this all the time and it is usually for the same reason. You

9 do an apartment complex from R-20 to R-6 with a condition because apartment complexes aren t allowed in R-20. We have done several of those. Right here is a great example-this parcel with the jagged line, we did that rezoning last year. That whole parcel was industrial but an apartment complex isn t allowed in industrial so the applicant put in an application to rezone that portion to residential in order to build that apartment complex. They didn t ask for a variance-by law they asked for a change in zoning and that is exactly what this request is here. Commissioner Cawley: If we do this and going by the colored map-where the red rectangle is will become gold. If we put a gold rectangle between all of that deep and light purple, how are we not going to be spot zoning? Andy Goodall: This is a conversation that I have had in the last couple of days is that we aren t all that convinced that it is spot zoning when you are going from one business district to the next. Also, the conditions put on it to try to keep the property as aesthetically the same as the properties around it is another way to address that. In your reports there are four criteria that you can use to address spot zoning and I believe that is what the Planning Board did with their Statement of Reasonableness. Commissioner Cawley: If it wasn t going to be gold, if it was going to be dark purple instead, they would be able to put stuff in the parking lot. Andy Goodall: If it was M-1 or B-3 without a condition, then yes. That is the purpose of doing the conditional use district rezoning-to add that additional condition so it wouldn t be allowed so when you look at this property, it fits in with the surrounding properties. If it was M-1, then yes if there was room in the parking lot and they wanted to put up a carport for display, they would be allowed to do that. Commissioner Cawley: So by making it B-3 is a compromise in a change of business district so that all parties would be satisfied with the outcome. Andy Goodall: That was the thought. Andy Goodall: You have all of these properties down here that allow more intense uses. If you look at these properties down here that aren t developed and they want to go to B-3, that will actually be a down zoning-the intensity of use would actually be less. As I said earlier, Northern Hospital of Surry County owns all of this property down here-i don t know what their plans are to do with the property but as of right now, they own a bunch of industrial zoned property. Mayor Pro Tempore Yokeley: It is written the uses are limited to selected business, professional and personal services, and retail trade permitted by right in B-3 zoning district. It looks like there aren t many uses that are taken out in B-3 can more be taken out? Andy Goodall: The Planning Board didn t look at taking any out but you certainly can. I can t speak for the applicant as to what they would be agreeable with but if that is something the board would like to entertain and the applicant is fine with it, that is something that you can work out. Commissioner Armbrister: Was the applicant aware of this need when they purchased the property?

10 Andy Goodall: The applicant is here-you might want to ask them that question when they come up. Commissioner Brinkley: Is there any way to leave it as it is and amend something? I am not familiar enough to know what the laws allow but in order for these people to be satisfied and those people to be satisfied, it sounds like they have already worked out a good idea-is there any way we can make it work in what we are presented here with some type of amendment or deletion? Andy Goodall: If we are going to allow all of these uses in B-5, I am not sure if that is even allowed in the B-5 district. Commissioner Brinkley: What about for one piece of property? Andy Goodall: It has to be written for the entire zoning district. That is the point of the conditional use process-that is where you put your limits on that one particular property. As far as writing what is allowed in zoning districts, it has to be for all zoning districts. Hugh Campbell: Mr. Goodall, you have reviewed the application, was the application complete in your judgment? Andy Goodall: It was complete. Zachary Williams, 119 Worth Street, Mount Airy, NC: I would like to present these pictures of the inside of the building into evidence. The previous tenant of the property was Farm Bureau who moved out December 2006 so the building has been sitting empty for a little over eight years. At that time, it was abandoned and was vandalized with signs of someone who stayed in it for a little while. The weeds on the outside were taller than the building and a major eyesore. We have since then purchased the building and renovated/updated the entire structure and completely gutted and remodeled the building. We have invested over $130,000 in this piece of property. The previous use was inside sales, which is what we are-we are an online dealer and cover the entire country. The previous tenant was insurance and basically (in my eyes) the same exact business if you will. We would like to use the building for the purpose of inside sales and the conditional use of no outside storage or buildings is fine with us since we are a nationwide business. I would like to add that this is a start up from a little over 2 years ago-we are veteran owned and operated. Both Mr. Horne and I are veterans and I am a disabled vet. Commissioner Cawley: You are the applicant and all of the instructions that we received say that you have to bear the burden of proof. Is your explanation for the burden of proof that you are the same kind of business that was there before? Zachary Williams: I think it is very close. I mean insurance sales is inside sales. With it being zoned B-5 for medical use-the property sat dilapidated and empty for the last 8 or so years. It was an eyesore. When you ride by the property and didn t read the sign that is on the building, you wouldn t know if it was an eye doctor or what it is. What is going on inside the office buildings, to me, shouldn t change anything. The property next to us could put up all the outside storage they wanted to being zoned M-1.

11 Commissioner Armbrister: Were you aware of this situation when you purchased the property? Zachary Williams: We were not. At no point in time did we know it was zoned medical when it had been an insurance office for several years. Commissioner Brinkley: When did you find out? Zachary Williams: During the remodeling-during one of the inspections is when we found out. Commissioner Brinkley: How much had you already spent on the property when you found out? Zachary Williams: I would say around $90,000 at that time. Commissioner Brinkley: Who did you purchase this building from-the insurance company? Zachary Williams: Yes. Commissioner Brinkley: And no one said anything to you about it? Zachary Williams: No ma am. Hugh Campbell: How many employees would you have on a daily basis? Zachary Williams: We have just hired another salesman with plans to hire another salesman and a secretary/receptionist but as of right now, there are four employees. Hugh Campbell: Do you know how much in and out traffic you may have? Zachary Williams: No sir. We are an online business and do most of our business in California and Texas. As far as traffic coming in and out-that isn t our goal. Our first year in business we did just shy of $3 million in sales and our second year in business, we almost doubled that. Again-our goal is nationwide-strictly sitting behind that door on a computer and answering a phone. Hugh Campbell: So no tractor-trailer traffic or anything like that? Zachary Williams: No-we handle no deliveries or material or storage of materials. We strictly sell a product and send in orders to a manufacturer to fulfill those orders. Commissioner Brinkley: This building is very small. Where did you expand from? Zachary Williams: We were at 259 North Main Street, which is above the toy store. We rented offices there. Commissioner Brinkley: Do you expect to expand-there is no place to build. Zachary Williams: As far as expanding from this property, no. The only expansion that I see in the future is opening up other offices in other cities. Commissioner Brinkley: Assuming we can get this resolved, and the company does fantastic and does expand, then we end up with a medical doctor wanting to come back into this spot, do we rezone it again?

12 Andy Goodall: If he moves out of the building and a doctor wants to put a doctor s office in there, I believe that in the table of uses that I highlighted for you, that would still be permitted. Hugh Campbell: You have reviewed the conditions that are proposed-do you accept all of those conditions as presented? Zachary Williams: Yes sir. Mayor Pro Tempore Yokeley opened the public hearing for comments. Bruce Gustafson, owner of one of the Northern Surry Office Condos, Mount Airy, NC: I am also a veteran but that is long before those veterans were born. As I stated earlier, neither Dr. Street nor I received notice of the Planning Board hearing and we just got notice of this meeting this week so we have had hardly any time to prepare anything. Having driven up Worth Street tonight, we were impressed by the appearance of the building-it is certainly an improvement. We were also impressed with the interior and we have no objection to these gentlemen conducting a business in this property. We just don t want the rezoning because who knows what the future holds. First of all, the rezoning goes against your future plans. Secondly, it is surrounded by medical business properties and who knows what the hospital is going to do-they may be in a little stalemate right now, but in the future, they are probably going to expand. There is a strip of our property that backs up to this property that these gentlemen own and we would certainly sell that to the hospital and they could certainly take ours by eminent domain. Our concern is if the zoning is changed to B-3 and they decide that they want to move their business from that property to another property, with this new zoning and all of the uses that can be allowed, there are a lot of things that can go into that property that have nothing to do with interior sales. There could be an indoor theater or grocery store-if you read down the pages of those things checked off, there are a lot of uses if the property is rezoned to B-3, that is what we are opposed to. We don t know what is going to happen. Their business may thrive and I hope it does, but it may not and if they have to sell the property or if they conduct some other business on the property, Mr. Goodall tells me that they have to come back and reapply. We didn t get notice of the first application, so I don t have a lot of faith of being notified of the next application. We would be up for a compromise and allow these gentlemen to conduct their business in that building-we are just opposed to the zoning change, which really throws an unknown into the mix. Justin Horne: The property had sat vacant since 2006, is that not enough time for a medical business to have purchased it? Bruce Gustafson: Of course. I am not saying a medical practice should be there-it should continue to be medical because everything else in that area is medical and the hospital may someday take it by eminent domain anyway. You aren t going to get any kind doctor or MD in that building because of the square footage nowadays. A laboratory could be in a smaller space and is one medical use. I know chiropractors who work in spaces this small. I realize it has sat vacant probably because the price of the property and renovations that would have had to be done like you have accomplished.

13 Commissioner Cawley: I want to make a comment-eminent domain isn t a possibility anymore-they can t do that. This property is zoned right now as B-5 and has never been used as B-5. Would you rather it be B-3 or M-1. Bruce Gustafson: I don t know what all is allowed in M-1. Commissioner Cawley: There would be a great deal more freedom for what they could use it for. Bruce Gustafson: Then no I would be against M-1 but I would also be opposed to B-3 based on what is checked off on what was ed to me by the Planning Board. Commissioner Cawley: Were you a property owner when it became zoned B-5? Bruce Gustafson: No. Dr. Street was. Since Mr. Goodall doesn t exactly know what it was zoned before 2002, it may have been zoned medical before that. Our building was built in 1983 for three physicians. They built the building in 1983 and it could have been zoned B-5 then if there was that type zoning and why the records don t show that, I have no idea. Commissioner Cawley: Or, it could have been zoned a number of things and used for medical offices. Commissioner Brinkley: Would you be as willing to sacrifice letting this young man come in not changing things if he had never touched that building and you didn t know what it was going to look like? Would you be as willing to compromise had this young man never touched this building and you didn t know how much better it was going to look? Would you have been as willing to say let s see what we can do. He has proven himself now. Bruce Gustafson: If the Planning Board had called me and said look I have a guy who wants to do this business in this building and this is what his plans are-i would guess we would say ok. Mayor Pro Tempore Yokeley: Is there anyone else who has comments? Any other questions from the Board? Commissioner Cawley: Mr. Goodall, you have heard the offered compromise from Dr. Gustafson to Mr. Williams and you had already stated that the ordinance doesn t allow for anything like that to be sustained for more than a six month period (Andy Goodall stated yes-as a non-conforming use). Cutting through all of the other stuff, is there any way to change that? Andy Goodall: I don t think so. I think what we are here for tonight and I would ask if the applicant and the party would be agreeable to sitting down and going through the list and knocking off some of the recommended uses so that we could come to some kind of agreement-it would still allow the indoor office sales obviously but we would take off some of the other uses that there may be some objections to and then come back to the next meeting and present those to you. In order to allow the use they are proposing, it will have to have a change of zoning, whether that be M-1, B-2, B-3, or B-4 those are all districts that would allow that type of use. Mayor Pro Tempore Yokeley: Would it be possible since B-5 has some uses in it that aren t medical, is there any way that there could be a conditional use permit and B-5 zoning to add this as a use?

14 Andy Goodall: You would have to change the table of uses-you would have to do a text amendment in order to do that. Mayor Pro Tempore Yokeley: So that wouldn t require this kind of hearing-it would just be a normal public hearing. Andy Goodall: It would require a withdrawal of the application and then a resubmission of a text amendment application to allow. It would be different types of retail and office uses that aren t allowed in B-5 now into B-5 and then they would have to take that text amendment to the Planning Board and then back to the board so you are looking at another 60 days in the process. I would just ask-would there be a problem from either side sitting down with me going through that list and taking some of those uses off that may be amendable to both parties. The highlighted uses that are in there now-obviously we wouldn t take out the use that would allow for your business. Then we would come back in two weeks. Hugh Campbell: Let me ask the applicant first-do you have any questions for Mr. Goodall based on what you just heard? Justin Horne: I would be willing to sit down and go through the list. Andy Goodall: It seems that the issue isn t because of the proposed use, but the recommended uses. That is another thing-the recommended uses can be changed. Hugh Campbell: So for example, one of the things that Dr. Gustafson mentioned was indoor theater as a recommended use in the B-3 and what you are saying is that could be stricken as a conditional use under the permit. Andy Goodall: Yes. The board can do that and we can do that by agreement and bring it back to the board. Hugh Campbell: Any more questions for Mr. Goodall? Commissioner Armbrister: If it is a compromise you are talking about, it is only talking about compromising the fact that it s rezoned to B-3. Hugh Campbell: What I understood Mr. Goodall to say is that they are within the conditional use permit that certain things are being permitted and certain things are being restricted. Commissioner Armbrister: The applicant is there-he doesn t care what it is rezoned to as long as he can operate his business and on the other end is we have those whose main goal is for it to remain as it is zoned as B-5. Andy Goodall: My question as a whole-b-1 through B-5 are all business districts. If we do a conditional B-3 that allows all of the uses that are allowed in B-5 that are also allowed in B- 3-if you go through the list, the majority of uses that are allowed in B-5 are also allowed in B-3 but you just added indoor office sales-that is the one use plus the 20 or so medical uses that are allowed in B-5 what is the difference? If you leave it as B-5 and you do a text amendment to allow the one use and go through this whole process again, what is the difference between just the conditional B-3 with the uses that are allowed in B-5 that are allowed in B-3 plus the use that the applicant is asking for? All the difference is going to be is the color on the map and the additional condition of indoor office sales and display.

15 Commissioner Brinkley: This man came in here not knowing about this in advance as others did, can we be doing what we are doing without him being prepared as he might would have been had he had gotten his information sooner? Hugh Campbell: I think that is a valid question and that is why we went through the steps at the beginning of the hearing and I gave every party the opportunity to say that they were ready to proceed tonight. And we can t now say we had the hearing and we really aren t ready. Commissioner Cawley: I happen to believe that when people buy property that is going to be used similarly for things that it had been used for in the past, that it is a normal assumption that if they sell insurance over the phone and I am going to sell something else over the phone, then what they were allowed to do I would be allowed to do. They bought the property and then were told that they were in a bad zone and now we end up in a quasijudicial hearing where the burden of proof falls on the applicant. I can t imagine having to lift that burden-i listened to Mr. Williams speak and he is doing what every other business owner would do and yet because of the formalities of this, it seems like we can t use common sense and it seems like to me, he hasn t met any burden of proof. I am asking you as a professional to tell me what burden of proof he met and how we resolve this and prevent it in the future. Hugh Campbell: I don t think you can answer what burden of proof that he met-i think that is for the finders of fact to judge for yourself independently and that isn t something that is capable of an expert opinion-that is taking away the decision making of this body. You all as fact finders have to decide if the burden of proof was met. Commissioner Cawley: I am sorry Mr. Goodall I have put you on the spot. Andy Goodall: I know this is a formal process and people are frustrated with it, but it has been the law of Mount Airy for quite some time. As your professional planner, I am just following the instructions that were given to me in the ordinance that was adopted by past commissioners of this community. We are working towards getting rid of that and hopefully, at some point tonight, we will get to that. Commissioner Armbrister: That raises the question of could we have gotten rid of quasijudicial hearings before this one tonight? Andy Goodall: This application came in first and that is what happened. Commissioner Armbrister: We really haven t gotten into it from a legal side, but we know what the goals of each party are and we want to try to work it out to the benefit of everyone. This seems like a quandary right now that we are sitting here supposed to make a final decision and even the decisions available don t seem appropriate and I don t know what to do about that. It is a dilemma that to me is unfair to everyone s interest in the matter. Mayor Pro Tempore Yokeley: If all of the interested parties would sit down and work it out to do the conditional use B-3 with adding that one use and putting all the uses in that are normally in B-5, could this be brought back in two weeks without having to go through public hearings? Andy Goodall: Yes. You can leave the hearing open.

16 Hugh Campbell: What I was going to suggest is taking a minute break for everyone to sit down with Mr. Goodall and discuss the issue. Andy Goodall: I have no problem in doing that but everything else on the agenda involves Mr. Goodall. Hugh Campbell: I am trying to be sensitive to the fact that everyone is here-one from Winston Salem and maybe taking a 15 minute recess to let everyone talk. Mayor Pro Tempore Yokeley declared a 15 minute recess. Mayor Pro Tempore Yokeley: Ok everyone is back in so let s reopen the public hearing. Andy Goodall: So we spoke in the back. You have B-3 and B-5 the uses that are allowed in B-3 and B-5 will remain the same so all of the medical type uses that are listed in there will remain in the list with the additions of agencies and offices; rendering specialized services not involving retail trade such as real estate, insurance, advertising, architecture, engineering, and accounting and not listed elsewhere; and also office uses-no retail are also allowed. That was what was agreed on by both parties. Hugh Campbell: For purposes of the record-a question to the applicant: You have heard the conditions that were articulated, do you agree to those conditions? Justin Horne: What about indoor retail? That is what we do. Andy Goodall: Computer sales would be allowed in B-3. Miscellaneous retail sales would be allowed in B-3. Hugh Campbell: To the respondents-you have heard the restrictions and conditions, is that agreeable to you as well? Bruce Gustafson: Yes. Andy Goodall: I will provide another highlighted table to go with this. This will be just for this one property. Hugh Campbell: Yes with the conditions proposed on this property going forward. Any changes or proposed changes would have to come back to the same process that you have been through with the public hearings and the opportunity to be heard. Andy Goodall: I would ask that since we are dealing with it now, that they go with the vote now and get this one out of the way. Whenever one of these is approved, I draft a conditional use district form and it has all of the information on it and the applicant will get that and we keep one on file and that is the record for that property. Commissioner Cawley: I am all for voting for it tonight, but we aren t rezoning it. Andy Goodall: Yes, we are. It will be CU B-3 with those limited uses that they agreed upon. Mayor Pro Tempore Yokeley declared the public hearing closed. Statement of Consistency: On motion by Commissioner Armbrister, seconded by Commissioner Brown and passed unanimously, the following statement of consistency was approved: The request is not consistent with the Vision Mount Airy Plan s recommendation for office and mixed uses associated with the hospital.

17 Statement of Reasonableness: On motion by Commissioner Brinkley, seconded by Commissioner Armbrister and passed unanimously, the following statement of reasonableness was approved: The request is reasonable, in the fact that the limited uses are similar to those currently allowed in the B-5 zoning district (with the addition of non-medical uses) and that the condition that limits storage and displays to indoors only will keep the limited uses in general harmony with the surrounding area. Rezoning Approval: On motion by Commissioner Armbrister, seconded by Commissioner Brinkley and passed unanimously, the board approved the zoning change request with the modifications of conditions. Findings of Fact: 1. That the use(s) requested is among those listed as an eligible conditional use in the conditional use district in which the subject property is located or is to be located. Commissioner Armbrister made the following motion: The requested indoor office and sales uses are listed as approved and permitted uses in the B-3 zoning district. Commissioner Cawley seconded it and it was approved unanimously. 2. The use(s) will not materially endanger the public health or safety if located where proposed and developed to plan. Commissioner Armbrister made the following motion: a) The Surry County Comprehensive Transportation Plan (2012) classifies this section of Worth Street (SR 2426) as a minor thoroughfare with a capacity of 13,800 vehicular trips per day. b) North Carolina Department of Transportation s (NCDOT) most recent Average Annual Daily Traffic (AADT) count for this section of Worth Street (2012) was 2,900 trips. c) Based on the volume-to-capacity (VOC) ratio of 21% for this section of Worth Street and the existing driveway connection, usage of the property for small office/retail will have limited impact on public health or safety at this location. Commissioner Brinkley seconded it and it was approved unanimously. 3. The use(s) meets all required conditions and specifications. Commissioner Armbrister made the following motion: a) Condition #1 will allow for limited Business, Professional & Personal Services and Retail Trade uses permitted in the B-3 zoning district, including the proposed indoor office and sales uses. b) Condition #2 will limit storage and displays to indoors only and is noted on the site plan and subject to enforcement by the City of Mount Airy. Commissioner Brinkley seconded it and it was approved unanimously. 4. The use(s) will not substantially injure the value of adjoining or abutting property unless the use is a public necessity. Commissioner Armbrister made the following motion:

18 a) The non-residential structure on the subject property has been vacant since b) The applicant has redeveloped/remodeled the vacant structure which will not substantially injure the value of adjoining or abutting property. Commissioner Brinkley seconded it and it was approved unanimously. 5. The location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is located and will be in general conformity with the adopted land use plans and other plans for physical development of the City s Zoning Jurisdiction as adopted by the Board of Commissioners. Commissioner Armbrister made the following motion: While the proposed use is not consistent with the Vision Mount Airy Plan s recommendations for this section of the Special Areas Hospital Area, it has been found that allowing selected similar non-hospital related office/retail/service activities (indoors only) would be in harmony with the surrounding area (I.e. medical office and sales office do not look any different from exterior). Commissioner Brinkley seconded it and it was approved unanimously. 6. That the use limitations and conditions as proposed and/or imposed for the conditional use permit meet or exceed and/or are at least as restrictive as the minimum standards for the corresponding general use district. Commissioner Armbrister made the following motion: The approved limitations and conditions have been found to be as restrictive as the standards for the B-3 zoning district. Commissioner Brinkley seconded it and it was approved unanimously. 7. That the use limitations and conditions as proposed and/or imposed for the requested conditional use permit can reasonably be implemented and enforced for the subject property. Commissioner Armbrister made the following motion: The approved use limitations and conditions can reasonably be implemented administratively and enforced by the City of Mount Airy Planning and Development Department. Commissioner Brinkley seconded it and it was approved unanimously. 8. That when implemented, the proposed and/or imposed use limitations and conditions will mitigate specific land development issues that would likely result if the subject property were zoned to accommodate all the uses and the minimum standards of the corresponding general zoning district. Commissioner Armbrister made the following motion: By implementing the approved use limitations and conditions, the applicant(s) will have mitigated any land development issues associated with the request. Commissioner Brinkley seconded it and it was approved unanimously. 9. That the applicant has agreed to accept the use limitations and conditions as proposed and/or imposed for the requested conditional use permit. Commissioner Armbrister made the following motion: