Wednesday, September 28, 2022

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Burlington board of adjustment to hear two boarding house cases

The opening months of 2022 could see the revival of an age-old debate over boarding houses in the city of Burlington – with at least two cases concerning these multi-occupant dwellings pending before the city’s board of adjustment.

This quasi-judicial board, which hears code enforcement appeals in addition to requests for special use permits and variances, is currently slated to hold a hearing on January 11 about a boarding house at 614 Maple Avenue that the city’s code enforcement staff has deemed to be illegal. The board of adjustment was originally scheduled to hear this appeal in December, although it agreed to postpone the matter at the behest of the owner – Elon-based Andrews Properties.

The Elon-based property manager had initially appealed to the city’s board of adjustment in October after Chris Marland, the city’s chief code enforcement officer, obtained a warrant to inspect the boarding house on the basis of complaints from the city’s police and fire departments as well as the building’s own tenants. During the course of his walk-through, Marland apparently determined that the boarding house violated the city’s unified development ordinance. Andrews, meanwhile, has argued that the dwelling enjoys grandfather status under the current rules, having been in continuous operation for years before the city enacted the unified development ordinance in 2019.

In addition to next month’s hearing about the Maple Avenue property, the board of adjustment is also expected to revisit another, earlier ruling regarding a second boarding house that Andrews Properties operates at 504 West Webb Avenue.

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The board of adjustment initially held a hearing on the Webb Avenue boarding house in May after Andrews appealed a different staff-level decision. Although the board’s members rejected the property owner’s appeal, Andrews took the case to Alamance County superior court, where a visiting judge found sufficient cause to demand that the board of adjustment take another crack at the case.

Andrews Properties had originally filed this court action in June in response to concerns about the validity of the online hearing which led the board of adjustment to reject the company’s appeal.

According to the case file, the board of adjustment held this hearing on May 11 after the city’s code inspections staff had found the boarding house at 504 Webb Avenue to be in violation of the city’s unified development ordinance. As in the case of its Maple Avenue property, Andrews claimed a grandfather exemption since this 9-bedroom domicile had operated as a boarding house prior to the ordinance’s enactment.

The board of adjustment ultimately heard the company’s appeal over the Zoom teleconferencing platform due to concerns about the spread of COVID-19. According to the case file, Andrews believes that the board’s members broke protocol during these online proceedings because they allowed a witness named James McCaslin to relay his testimony by cell phone to the city’s planning manager, who passed it along to the board of adjustment during the Zoom session.

In Andrews’ subsequent appeal to superior court, the company’s attorney not only objects to the irregular nature of this testimony but also to the prejudicial impact it ultimately had on the company’s case.

“The petitioner’s due process rights to confront and cross examine [the] witness were not protected during the [board’s] appeal hearing,” the company’s appeal goes on to assert. “The violation of the petitioner’s due process rights was [also] material, as the notification of [the board of adjustment’s] decision…establishes that Mr. McCaslin’s testimony was one of the primary deciding factors behind the Burlington BOA’s decision to deny [the] petitioner’s appeal.”

Andrews’ appeal was slated to go before Kevin M. Bridges, a visiting superior court judge, on December 6. Although the case file contains no record of this hearing, it reportedly ended with the judge resolving to send the case back to Burlington’s board of adjustment.

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