June 26, 2017:  Our appeal failed

We are saddened and dismayed to report that late last week the Wake County Superior Court Judge affirmed the Wake County Board of Adjustment’s issuance of the Special Use Permit to Connell Properties.  He decreed that there was “competent, material and substantial” evidence in the record of the proceedings before the Board of Adjustments, and that Connell Properties had met its burden to establish entitlement to the applied-for permit.  Therefore, the kennel permit stands.  We were there for every moment of the original hearing and the appearance in court, and we have no words to explain it.  We will leave it at that.

We are making another public records request to discover the current state of the communications between Connell Properties and the NCDOT with regard to the driveway permit.  Our last request had indicated that the DOT engineer requested a one-driveway plan showing a left turn lane with tapers into the property from the south, but Connell Properties (or their engineers) only provided the one-driveway plan and did not subsequently respond when prompted for a drawing of the left turn lane.  Please keep in mind that, unless NCDOT itself decides to widen Six Forks Rd, which they have not expressed at this time, this is not an eminent domain situation.  Connell Properties would have to get all designated property owners to agree to sell a slice of all their properties, and Connell Properties would have to finance the construction cost of the left turn lane.  We have knowledge, from a housing developer that had to finance a left turn lane, that the cost is in the hundreds of thousands of dollars.  So we will be back in touch once we have the current NCDOT status, and we need to put our faith into the fact that NCDOT’s requirements are going to make ingress and egress very undesirable at this location.  More news on NCDOT when we have it!

May 13, 2017: Still waiting…

You all are probably wondering what is going on.  I am sorry that I haven’t provided any updates, but unfortunately that is because we still don’t have any.  The judge has yet to deliver a decision, so we just need to keep the faith and be patient!

The only thing that we do have is a $$$ update (this includes the 2nd payment against the February legal expenses, which is to be mailed on Monday):

  • $8785.00 — Original hearing expenses
  • $212.00 — August legal expenses for the appeal
  • $2,692.25 — September legal expenses for the appeal
  • $14,035.65 — October legal expenses for the appeal (includes $1738.00 for court transcription of audio and $200 court filing/recording fee)
  • $1,085.22 — November legal expenses for the appeal
  • $805.00 — December legal expenses for the appeal
  • $265.00 — January legal expenses for the appeal
  • NEW $15683.10 — February legal expenses for the appeal (this covers the actual hearing itself and all prep, and which we are paying in 3 installments)

TOTAL expenses as of May 15: $43,563.22

TOTAL amount paid as of May 15: $39,621.67

Total donations as of May 15: $25,294.16   MANY THANKS FOR THE RECENT DONATIONS!

March 29, 2017: No ruling yet, but hopefully SOON

Spoke with our attorneys today and we do not yet have a ruling.  I thought we were guaranteed a decision by a deadline of today (30 days since the hearing), but that is not the case.  There is no deadline during which the judge has to rule.  That is totally my fault.  To say that the hearing day was a blur is a massive understatement, and I apologize that I misheard/misunderstood.   🙁

However, our lead attorney was hopeful that we would hear something this week or soon thereafter.  And I do promise that as soon as we hear something, we will let you all know!

March 1, 2017: Hearing complete, judge’s ruling due by March 29

Our hearing went well on Monday in Wake County Superior Court.  It lasted far longer than originally estimated, but Judge Roberson and the court were kind enough to extend the session until 6:30pm to allow for a thorough examination of the arguments from both sides.  As such, instead of making a ruling that night, he decided to take the case “under advisement”.  This means that Judge Roberson has 30-days during which to review all of the information from Monday, as well as all evidence from the original Board of Adjustment hearing, before making a ruling.  My personal opinion is that I would love for him to take the full 30 days to review the evidence from the hearing, which does include a full transcript as well as all documents, maps, photos, etc., that were submitted and accepted.

So the next time that you will likely hear from me is upon delivery of the ruling, which is on or before March 29.

Also, here is an article about the hearing from the N&O: http://www.newsobserver.com/news/local/counties/wake-county/article135426404.html

And finally, a quick expense/donation update as of March 1:

  • $8785.00 — Original hearing expenses
  • $212.00 — August legal expenses for the appeal
  • $2,692.25 — September legal expenses for the appeal
  • $14,035.65 — October legal expenses for the appeal (includes $1738.00 for court transcription of audio and $200 court filing/recording fee)
  • $1,085.22 — November legal expenses for the appeal
  • $805.00 — December legal expenses for the appeal
  • NEW $265.00 — January legal expenses for the appeal

TOTAL AMOUNT PAID OUT as of March 1: $27,880.12  

Total donations as of March 1: $15,744.16   THANKS FOR THE RECENT DONATIONS!




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Previous Updates:

February 12, 2017: We have a court date!!!

Our hearing date is now set for the petition to repeal the Special Use Permit for the 8000 sq.ft./70-dog Kennel at 11021 Six Forks Rd:

Wake County Superior Court, Hon. James K. Roberson
Monday, February 27th 2017, 2:30pm
Wake County Courthouse (The "old" courthouse, not the new Wake Justice Center), 
Courtroom 10-A
316 Fayetteville Street, Raleigh

Be aware that the afternoon session starts at 2:30pm, but our hearing can start anytime between 2:30 and 5:00pm.  Unlike the original Board of Adjustment meeting, there will be no neighbor testimony allowed.  HOWEVER, we would *REALLY* appreciate as many people there to show support as possible!  Please allow time for parking, and the SLOW AND PACKED elevators up to the courtroom in the old courthouse, in order to be in your seats by 2:30pm.

January 4, 2017: PLEASE HELP US WITH OUR EXPENSES!

As of January 4th, our actual expenses are:

  • $8785.00 — Original hearing expenses
  • $212.00 — August legal expenses for the appeal
  • $2,692.25 — September legal expenses for the appeal
  • $14,035.65 — October legal expenses for the appeal (includes $1738.00 for court transcription of audio and $200 court filing/recording fee)
  • $1,085.22 — November legal expenses for the appeal

TOTAL AMOUNT PAID OUT SO FAR: $26,810.12 !!!

As you can see, expenses for the appeal have already exceeded the $10,000 high end of the estimate, and they aren’t done yet. While our legal team believes that the bulk of the work is complete, they estimated a remaining $5,000 worth of work to get us through the appeal hearing. So all in, that would put our grand total (original hearing plus the appeal) very close to $32,000 🙁

I do not have the exact donation amount at the moment, but I believe that it is around $15,000. PLEASE HELP WITH ADDITIONAL DONATIONS IF YOU CAN!!!

January 3, 2017: Possible hearing date, still no DOT news, plus two new proposed kennels in North Raleigh!

POSSIBLE HEARING DATE: Our legal team informed us that the hearing of our appeal in front of a judge will potentially be the week of February 27 – March 3. It could be later than that, but I doubt that it will be earlier. As soon as I have something definite, I will let everyone know. While I don’t think that any of us will be speaking at the hearing, I truly believe that we should have a good show of support in front of the judge.

DOT driveway plan: We have not received any additional information (via our Public Records Request) showing that the kennel has provided the plans requested by the DOT. So, the driveway aspect of the plan still appears to be in limbo at this point. Let’s hope so!

TWO NEW KENNEL SPECIAL USE PERMIT APPLICATIONS in North Raleigh: This does not have anything directly to do with the proposed kennel at 11021 Six Forks Rd, but I wanted to make you all aware of it since I have heard some rumors.

The first is a new kennel special use permit being requested for an 8+ acre parcel at 13932 Old Creedmoor Rd, which appears to tentatively be called Triangle Country Dogs based on the email address. Their application is BA-SU-2237-16, available here. The only thing that I personally know is in common with 11021 Six Forks is that they are using the same engineering firm: Agri-Waste Technologies.

The second kennel application is new, but the kennel itself is not.  It is literally next door to the first, a 7+ acre parcel at 13400 Old Creedmoor Rd. It is a rescue organization called Saving Grace Animals for Adoptions, Inc. that has been operating at that location (which is also the founder and president’s private-residence/farm/dog-kennel) for the last 12 years, and was not aware that they needed a special use permit before now. Their application is BA-SU-2242-16, available here.

Remember that, just like our hearing in front of the Wake County Board of Adjustment, the public is allowed to testify in support or opposition of all permit requests. Both of these are located in quiet residential areas.  So if you feel strongly about either of these two additional kennel requests, please feel free to attend their hearings and make your voice heard.  All Wake BOA hearings are held on the second Tuesday of the month at 9 a.m. in Room 2700 of the Wake County Justice Center, 301 S. McDowell Street, downtown Raleigh. At this time, the Triangle Country Dogs hearing is scheduled for Tuesday January 10, 2016, and the Saving Grace hearing is scheduled for Tuesday March 14, 2016.

October 12, 2016: Our Appeal has been filed!

On October 12th, we filed a petition with the Wake County Clerk of Superior Court alleging that the Wake County Board of Adjustment erred in approving the Special Use Permit for a 70-dog kennel on the property at 11021 Six Forks Road. It asks the Court to review the record and to reverse the Board of Adjustment’s decision, therefore denying the Special Use Permit. We will let you know when a court date is assigned (it may not be until late 2016 or early 2017).

September 15, 2016: Original two-driveway plan rejected!

Obtained via our public records request: As expected based on the expert testimony of our land engineer after review of the kennel site plan, on August 25th there was an email from the NCDOT to the kennel’s engineering firm stating that “NCDOT will not allow two driveways at this location and a left turning lane will be required at the one driveway”. Their engineers then modified their original driveway plan to have a single in and out, but on September 15th, the NCDOT indicated that their plan must also show the left turning lane, storage and tapers, which it did not. Their engineering firm has not yet responded with the requested plans, but we eagerly await additional decisions from NCDOT and we will let you know.

September 13, 2016: Minutes and Written Decision

You can now view the complete minutes and written decision that was entered into public record on September 13th by the Wake County Board of Adjustment. We strongly encourage you to read it and form your own opinion on what we believe to be a travesty that occurred that day.

Further down this page you will also see the relevant sections from the Wake Unified Development Ordinance (UDO) that were supposed to be used when applying testimony and evidence (or lack thereof) to the ordinance. As you read the minutes and the decision, we stress that the burden of proof was supposed to be on the APPLICANT, as shown in Section 19-23-7 (B) of the UDO.


History

At a hearing on August 9th, 2016, the Wake County Board of Adjustment unanimously approved a special use permit for a new 7,908 sqft kennel on the NW corner of Six Forks Road and Martindale Drive capable of holding 70 dogs.  The site is located within the Falls Lake watershed in an established residential area with homes dating back to 1901, and at the entrance of a subdivision started in 1973.  The plan will demolish the 1,662 sqft home currently on the site (ca. 1935) as well as the other two buildings.

During that hearing, we observed that the Board did not follow many of the basic principles it is tasked to uphold. In our opinion, the applicant provided no factual evidence to allow the Board to reasonably reach the required conclusions outlined by the Wake County Unified Development Ordinance (UDO), in support of a unanimous approval of the permit. Needless to say, all homeowners around the proposed kennel site, as well as residents within the surrounding Bayleaf area, are furious.


Relevant Sections of the Wake County Unified Development Ordinance (UDO)

Section 19-23-7 (B) – Review and Decision

“The applicant bears the burden of presenting sufficient evidence in support of the application to allow the Board of Adjustment, after weighing such evidence against that presented in opposition to the application, to make findings of fact that reasonably support each of the required conclusions.”

Section 19-23-7 (A) – Review and Decision

“Following the hearing, the Board of Adjustment must review and discuss the evidence presented at the hearing, make specific findings of fact supported by that evidence, and determine whether or not such findings allow it to reasonably reach each of the required conclusions. In making findings of fact and reaching conclusions, the Board of Adjustment may consider only competent, substantial, and material evidence presented at the hearing.”

Section 19-23-8 (A to E) – Conclusions Required for Approval (for a Special Use Permit)

“The Board of Adjustment may not approve an application for a special use permit unless it first reaches each of the following conclusions based on findings of fact supported by competent, substantial, and material evidence presented at the hearing. . . “

“(A) The proposed development will not materially endanger the public health or safety. . .”

“(B) The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses . . .”

“(C) The proposed development will not substantially injure the value of adjoining property, or is a public necessity . . .”

“(D) The proposed development will be in harmony with the area in which it is located . . .”

“(E) The proposed development will be consistent with the Wake County Land Use Plan . . .”

Section 4-46-1 (A) – Kennels

“These provisions are intended to recognize that although kennels provide a service for owners of animals, the noise, odor, insects, and traffic associated with kennels are not in keeping with what is ordinarily desirable in developed areas [emphasis added]. . . . It is further intended that the Board of Adjustment must consider each proposed site with reference to the character of the immediate neighborhood [emphasis added] . . . and determine whether a kennel would be a suitable land use thereon.”


How you can help!

  • Help us with expenses. Donate here.
  • Sign our petition on Change.org!

Location of the Proposed Kennel


Press/Resources

 

Do you have some information, questions, or do you want to help? Contact NoSixForksKennel@gmail.com