**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.
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 Ferrari that the sign permit had been revoked by the Town of Matthews stating the permit was issued in error sighting section 153.144(A) of Matthews Zoning Code.
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.
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.
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.
writ of certiorari: a decision by the Supreme Court to hear an appeal from a lower court.
inter alia: among other things.
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.
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.
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.”
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.
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.
PLEASE HELP IN SUPPORTING MATTHEWS WATCH BY TELLING YOUR FRIENDS AND NEIGHBORS. THANK YOU.