Monthly Archives: August 2014

PREMIER PLASTIC SURGERY v. TOWN OF MATTHEWS

Premier Plastic Surgery

**Do not forget to click on the blue links to see the documentation.

In October 2006 Premier Plastic Surgery of 1635 Matthews Township Parkway opened for business.  This is a medical facility that is on one of four lots that share one drive for ingress and egress.  At this entrance there is a monument-style sign which provides signage for several tenants.  This monument sign does not accommodate the number of tenants.  Later, a second entrance was constructed just after passing Fuddruckers and right before Premier Plastic Surgery.  The second drive site is in a curve along Matthews Township Parkway and sits about 500 feet from the first entrance.  As a result of the curve it is impossible to see the second drive from the first.

Multiple Monument Sign

Monument-Style Sign with multiple tenants.

Curve View

Curve View from first entrance.

Matthews access route

Aerial View – The Arrows indicate how the Town of Matthews expected everyone to enter Premier Plastic Surgery

Due to the curve Dr. Victor Ferrari testified that patients had trouble seeing and locating the medical practice.  Patients have driven by the entrance only having to turn around to try and find it.  He also claimed that 90% of his first-time patients had problems and were up to thirty minutes late.  With Premier Plastic Surgery being a medical facility there are surgeries on site and if a medical emergency was to arise with paramedics needed there was an overwhelming concern by Dr. Ferrari in the response time.

In an effort to correct these problems in December 2006 Dr. Ferrari’s wife met with Jay Camp and Bill Sherrill of Matthews Planning to discuss a free standing sign outside of Premier Plastic Surgery.  She was told the only location available was at the first entrance which is 500 feet away with a sign that did not provide enough space.  It was then decided to contact Comco Signs, Inc. and see if a sign could be attached to the front of the building in an effort to help patients locate Premier Plastic Surgery.  Vice-President Randy Ulery of Comco Sign suggested that Dr. Ferrari construct a monument sign and assured him that the Town of Matthews would allow it.  On April 4, 2007 Charlie Butler, zoning inspector for Mecklenburg County Land Use and Environmental Services Agency (“McLUESA”) which administers permits for the Town of Matthews approved a sign permit which allowed Comco to build a monument sign outside of Premier Plastic Surgery.

On June 20, 2007 the sign was installed costing Premier Plastic Surgery a total of $7,210.00 with Zoning Inspector Charlie Butler present to help determine the proper placement.  Approximately one week after the sign was installed McLUESA notified Dr. Ferrari that the sign permit had been revoked by the Town of Matthews stating the permit was issued in error sighting section 153.144(A) of Matthews Zoning Code.

Revocation of Permit

Section 153.144(A)

Premier Plastic Surgery then appealed the decision to revoke the permit and on November 8, 2007 and Matthews Board of Adjustment denied the appeal.  To solve the problem an application for a text amendment change to the ordinance was applied for but was unanimously denied by Matthews Board of Commissioners on April 14, 2008.  The vote included Mayor Lee Myers, Mayor Pro-Temp Jim Taylor, Commissioners Bill Dixon, Suzanne Gulley, Nancy Moore, Jeff Miller and Kress Query.  Matthews Planning Board was also unanimous in recommending the denial.

April 14, 2008 BoC Meeting

May 8, 2008 Premier Plastic Surgery applied for a variance to section 153.144(A) of the Matthews Zoning Code which would allow for the sign to stay.  On July 10, 2008 Matthews Board of Adjustment denied this request.

BoA 7-10-2008

Variance Request Denied Letter

On August 8, 2008 Premier Plastic Surgery filed for writ of certiorari  to the Mecklenburg County Supreme Court stating N.C. General Statue §160A-388.  They alleged, inter alia, that the Board of Adjustments decision to deny the variance was arbitrary and capricious and contrary to the statue.  On September 23, 2008 the petition was granted to be heard in Mecklenburg County Superior Court.

NC General Statue 160A-388

LEGAL DEFINITIONS

writ of certiorari: a decision by the Supreme Court to hear an appeal from a lower court.

inter alia: among other things.

Notice of Violation Letter 

On January 21, 2010 the case was heard in Mecklenburg County Superior Court with Judge James W. Morgan presiding.  He affirmed the denial of the application of the variance by Matthews Board of Adjustment.  He concluded that because the sign was prohibited by section 153.144(A) of Matthews Zoning Code, the Board of Adjustment had no authority in issuing the variance request.  Because the sign was illegal from the start Premier Plastic Surgery had no vested rights due to the sign being revoked one week after its construction and the Town of Matthews was not barred by estoppel or laches from revoking the requested permit.

LEGAL DEFINITIONS

estoppel: a rule of law which prevents a person from alleging or denying a fact, because of his/her own previous act.

laches: the failure to diligently assert a right, which results in a refusal to allow relief. 

This decision was then appealed by Premier Plastic Surgery and on July 19, 2011 the North Carolina Court of Appeals overturned the decision of Judge Morgan and remanded the matter back to Matthews Board of Adjustment.  The trial court erred in the finding that the Board of Adjustment had no authority to grant a variance for the sign.  The sign was not contrary to Matthews Zoning Code §153.144(A).  Section §153.144(A) was intended to protect the general appearance of commercial properties and prevent hazards and nuisances.  The ordinance was also intended to provide means for adequate and effective signage, prevent driver confusion, and allow for flexibility to meet individual needs for business identification, which was the very problem on which Premier Plastic Surgery was complaining.

THE CONCLUSION READ: “In summary, we conclude the trial court erred in finding the Board had no authority to grant a variance for Petitioners’ sign.  We also conclude the trial court erred in finding the Board made sufficient findings of fact to support its decision.  Therefore, the Order of the Superior Court affirming the Board’s decision is reversed, in part, and the case is remanded, in part, to the Superior Court with instructions to further remand to the Town of Matthews Board of Adjustment for further proceedings consistent with this opinion.” 

“Reversed, in part, and remanded, in part.”  Judges CALABRIA and STROUD concur.

With this new ruling this went back to the Matthews Board of Adjustment and on September 13, 2012 the variance was denied a second time.

*NOTE*  On January 3, 2013 Matthews Board of Adjustment approved an application from another citizen for a variance from planting of yard requirements.  Even though the Board of Adjustment found that it did not meet the criteria for a variance change the variance was granted.

BoA Meeting 1-3-2013

May 9, 2013 Premier Plastic Surgery appealed the second denial of the Board of Adjustment.  On November 25, 2013 this case was heard once again by Superior Court Judge Richard Boner in which it was remanded back to the Matthews Board of Adjustment.

AND THE ORDER READ:  “IT IS THEREFORE ORDERED that this matter is remanded to the Town of Matthews Board of Adjustment. The Board shall review its record and reconsider its decision in this action and adopt new findings consistent with the aforementioned decision of the N.C. Court of Appeals and this Order.  The Board shall answer the question whether the application of Zoning Code §153.144(A) to this property, under the unique circumstances of this property as presented in the Record of Proceedings, poses a threat to public safety, and whether upon the issuance of the requested sign variance, will “the public health, safety and welfare have been assured and substantial justice done.”

Order

With the new Order of Judge Boner it was required for the Board of Adjustment to answer if “Zoning Code §153.144(A) to this property, under the unique circumstances of this property as presented in the Record of Proceedings, poses a threat to public safety, and whether, upon the issuance of the requested sign variance, will “the public health, safety, and welfare have been assured and substantial justice done.”

Once again the request for the variance was heard by the Board of Adjustment and on March 6, 2014 the variance was granted to allow the sign on the findings of fact “the sign is for the purpose of identification of a health care facility at this location with proper maintenance.”  The motion was unanimously approved.    

BoA-March-6-2014.pdf

Town Letter

According to Matthews in the four years that can be accounted for by the Town of Matthews a total of $16,978.73 of your tax dollars were spent in pursuing this issue.  In the fiscal year of 2013/2014 total $5,464.42, 2012/2013 total $6,258.08, 2011/2012 total $3,748.25 and in 2010/2011 total $1,508.00.

This whole issue could have been avoided completely.   There should have been a willingness to work with Premier Plastic Surgery and Dr. Ferrari but sadly there was not.  All that was needed was a five second vote to approve a variance change from the Board of Adjustment instead of costing Premier Plastic Surgery over $94,000 in legal fees.  What is needed with any leadership is a little compromise and a lot of diplomacy.  As a community we should all work together for the common good of the citizens.  As for the current commissioners I am hopeful that they will become free thinkers and finding out the facts about each item that is brought before the town for discussion and going as far as communicating with individuals involved and bring some humanity to their decision making.

On a more humorous note, this reminds me of the Andy Griffith Show with Barney Fife who always “went by the book” and even arrested the Mayor at one point.  But the humor of the show and the lesson’s that it taught was a sheriff who cared more about the people rather than power and position.      

Premier Plastic Surgery - photo 1

Entrance of Premier Plastic Surgery

Premier Plastic Surgery - photo 2

PLEASE HELP IN SUPPORTING MATTHEWS WATCH BY TELLING YOUR FRIENDS AND NEIGHBORS.  THANK YOU.

 

      

PURSER PARK COMMUNITY MEETING – VEHICLE TAG FEE & TOWN BUDGET INCREASE

**Remember to click on the light blue/gray links to view documentation.

                    PURSER PARK COMMUNITY MEETING                           

Purser land survey

On Saturday June 21st the Town of Matthews held a community meeting to hear the ideas and concerns from the residents of Matthews for the future park off Highway 51 also known as PURSER PARK.  I attended and video recorded this meeting and at times tempers flared by residents while addressing Mayor Taylor with their questions.  There were many concerns and questions which included the development of Highway 51 into a four lane road, roundabout at Idlewild Road and 51, more traffic, noise, lights and the possibility of a elementary school and fire station.  There were many wonderful suggestions which included nature trails, horseback riding trails, mountain bike trails, and petting zoo to a community garden.  But in all everyone wanted to keep as many trees and natural areas as possible.  At one point Mayor Taylor was told to stay out of the discussion by a resident and there was a suggestion made to appoint a council to listen and make decisions concerning Purser Park.  I believe this is a great idea only if the majority of the council is held by volunteer residents of Matthews filling these seats.  If not than there truly is no voice for the ideas and input from residents.

During this meeting it was once again denied Mr. Purser’s farm was condemned and I asked Mayor Taylor if the Town of Matthews would be honoring the naming rights as promised to Mr. Purser and as stated in the closed session minutes.  As expected this question was dodged.  By no means am I an expert in these matters but I do believe in honesty and honoring your word and I think the documentation speaks for itself.  Mr. Purser was a WWII Veteran who fought for the very freedom’s we all are enjoying so wouldn’t you think Mayor Taylor and Commissioner Query who supported the vote in condemning Mr. Purser’s farm would want to honor him as promised?  We must never forget the sacrifices made by our past and present service men and women and their families.

Mr. Purser’s response to the condemnation of his farm during mediation.

FIRST AFFIRMATIVE DEFENSE – “This defendant denies that it was, or is, necessary for the Plaintiff to provide for the recreation, welfare and comfort  of the public, and to promote the physical, mental and cultural and leisure time activity, by the condemnation and taking of the Defendant’s property which had been farmed and nourished for decades by Neubert Purser, a great American patriot who has served his country in the military and who has remained a great taxpaying citizen of this community and whose life long dream was to work the property through his life and leave it to his family at his passing; and not to have it condemned and taken away from him principally because of the existence of the 2004 Park Bond Project.”

IT IS TIME FOR MATTHEWS TO OWN UP TO THE CONDEMNATION OF MR. PURSER’S FARM AND HONOR THE NAMING RIGHTS.

MEMORANDUM OF SETTLEMENT

The Memorandum of Settlement was written during mediation between the Town of Matthews and Mr. Purser.  Did you notice the last hand written paragraph?

“The Town Manager and Town Council shall recommend to the Town Board that when a public – use park is developed on the property the name of “Purser Park” will be utilized on some part of that park.” 

Letter of resolution for authorizing condemnation by the Town of Matthews.  RESOLUTION AUTHORIZING CONDEMNATION      

Letter delivered to Mr. Purser informing him of the condemnation of his farm by the Town of Matthews.        Town of Matthews Condemnation Letter

Reason the Town of Matthews condemned Mr. Purser’s farm.                                        Recorded with the  Mecklenburg County Courthouse – Exhibit “B”                                              “To provide for the recreations, welfare and comfort of the public, to promote the physical mental and cultural development of its citizens, and to establish and upgrade a program of public recreation and leisure time activity, the Plaintiff is condemning the herein- described property for a public park and recreation purposes, specifically, as a part of the 2004 Park Bonds Project.”       Court House Document – Exhibit B

Matthews will be holding the second community park meeting on August 13th from 6:00 to 8:30pm at the Matthews Community Center.  Starting at six the Parks, Recreation an Cultural Resources Advisory Committee will be holding their meeting then starting at seven the 2nd community park meeting will begin.  Please come and show your support for PURSER PARK.  Both meetings are open to the public.  

                                      VEHICLE TAG FEE INCREASE & TOWN BUDGET                                              

On June 9, 2014 our town leadership voted to increase the vehicle tag fee from $15 to $25 per car which will generate $234,000.00 yearly increase to help repair town roads.  The Town of Matthews currently participates in the Powell Bill Program.  Municipalities that participate in this program receive a disbursement twice a year in which monies are to be used “only for the purposes of maintaining, repairing, constructing, or widening of any street or public thoroughfare within the municipal limits or for planning, construction, and maintenance of bikeways, greenways or sidewalks.”  “Powell Bill streets are defined as any public road maintained by a municipality and open to use by the general public, and having an average width of not less than 16 feet.”

**Information provided by NCDOT Powell Bill Program**                                                                      State Street-Aid (Powell Bill) Program                                                                                                 “Powell Bill allocations are made to incorporated municipalities which establish their eligibility and qualify per North Carolina General Statue 136-41.1 through 136-41.4.”

“Annually, State Street-Aid (Powell Bill) allocations are made to incorporated municipalities which establish their eligibility and qualify as provided by G.S. 136-4.1 through 136-41.4.  The general statues require that a sum equal to ten and four-tenths percent (10.4%) of the net amount after refunds that was produced during the fiscal year by the tax imposed be disbursed to the qualifying municipalities.  The statues also provide that funds be disbursed to the qualified municipalities on or before October 1st and January 1st, thereby allowing sufficient time after the end of the fiscal year for verification of information and to determine the proper allocation and preparation of disbursements.  Powell Bill funds shall be expended only for the purposes of maintaining, repairing, constructing, reconstructing or widening of any street or public thoroughfare within the municipal limits or for planning, construction, and maintenance of bikeways, greenways, or sidewalks.”

General Statues 136-41.1 through 136-41.4 Powell Bill

From 2005 through 2014 the Town of Matthews has received $6,652,140.74 total allocations from the Powell Bill Program that can only be used for town roads.

Powell Bill Allocation received October 2013 – January 2014 $745,750.21.                       Powell Bill Allocation 2013-2014 

 Total Powell Bill Allocation received October 2012 – January 2013       $726,986.47                   Total Powell Bill Allocation received October 2011 – January 2012       $698,538.64          Total Powell Bill Allocation received October 2010                                      $690,617.45         Total Powell Bill Allocation received October 2009                                      $705,181.64        Total Powell Bill Allocation received October 2008                                      $785,618.60        Total Powell Bill Allocation received October 2007                                      $843,663.01        Total Powell Bill Allocation received October 2006                                      $727,130.41        Total Powell Bill Allocation received October 2005                                      $728,654.31

                                                                                           TOTAL  ——————    $5,906,390.53

Amount spent by Matthews from 2005 to 2013  ——————————    $5,952,417.38

This is an over spending by Matthews by   ————————————–          $46,026.85

Powell Bill Allocations 2005-2013

Also on June 9th the 2014/2015 Town Budget was approved.  Some would say the increase is small but I believe every penny counts.  This increase included $3500 for the Annual Planning Conference I guess $7,037.64 (amount spent 2014 conference) is not enough money for an all expense paid weekend retreat at the beach for a party of twelve.

Board of Commissioners Meeting 6-9-2014                               

**information down loaded from Town of Matthews web site**                                               **note page 24**                                                                                                                                            FY_14-15_Proposed_budget_2014-05-19_REVISED_2014-05-27 

With the approval of the vehicle tag fee  and Town Budget increases  Matthews residents really need to pay attention to the money being spent within the town.  Lets not forget the possible 1.5% tax increase in 2015, its time to hold Matthews leadership accountable during these tough and trying economic times.       

*** HEY MATTHEWS RESIDENTS, MATTHEWS WATCH WANTS TO HEAR FROM YOU***         DID YOU OR A FRIEND OR NEIGHBOR RECEIVE DAMAGE FROM THE RECENT STORMS?  IF SO WE WOULD LOVE TO HEAR FROM YOU AND SEND PICTURES IF YOU HAVE THEM.

PLEASE REMEMBER TO TELL YOUR FRIENDS AND NEIGHBORS ABOUT MATTHEWS WATCH.