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10.14.2025 Agenda Packet BOAPERSON COUNTY PLANNING AND ZONING DEPARTMENT 325 S. Morgan Street, Suite B Roxboro, North Carolina 27573 PERSON COUNTY BOARD of ADUSTMENT PERSON COUNTY OFFICE BUILDING, ROOM 215 SPECIAL MEETING AGENDA October 14, 2025 7:00 P.M. A.Call To Order / Determination of Quorum B.Conflict of Interest polling of members C.Approval of formal order in AP-01-2025 – Appeal of Zoning Administrator’s interpretation from Hot Rock Haulers, LLC D.Approval of the Minutes of September 23rd, 2025 E.Introduction of Nishith Trivedi, Person County Planning Director F.Adjournment Page 1 of 26 1 STATE OF NORTH CAROLINA BEFORE THE PERSON COUNTY BOARD OF ADJUSTMENT COUNTY OF PERSON CASE NO. AP-01-2025 In the Matter of: ) ) APPEAL OF ZONING ADMINISTRATOR’S ) INTERPRETATION ) ) USE CLASSIFICATION: 3722 WOODSDALE ROAD ) ) by ) ) FINAL WRITTEN DECISION HOT ROCK HAULERS, LLC ) ) DENYING APPEAL ) Appellant ) ) and ) ) PERSON COUNTY ) ) -Appellee ) This matter came before the Person County Board of Adjustment (“Board”) for a quasi- judicial hearing on September 23, 2025, pursuant to proper notice as required by Person County Planning Ordinance (the “Ordinance”) § 159-4(a) and North Carolina General Statute § 160D- 406(b). Members of the Board present and participating at the hearing were Cynthia Lynch (Chair), Hunt Fitzgerald, Bernhard Lampert, David A. White, and Steve Evans (Alternate). Vice -Chair James Thomasson recused himself at the outset of the hearing. Steve Evans served in his place. Attorneys Robin Tatum and Erin Catlett of Fox Rothschild LLP, represented the Appellant. Person County Attorney T.C. Morphis, Jr., of The Brough Law Firm, PLLC, represented the Appellee. Attorney Brian Ferrell of Kennon and Craver, PLLC, advised the Board. Page 2 of 26 2 B. Michie Brandon, Person County Planning Technician, served as secretary to the Board. Margaret Hauth, Person County Interim Planning Director (the “Interim Director”), attended and presented the record upon which the decision appealed from was taken. The 27-page agenda provided to the Board before the hearing comprised the record of the decision (the “Record of Decision”). The Record of Decision was entered into the hearing record along with the May 3, 2021, version of the Ordinance. Mason C. Day, III, co-founder and co-owner of Hot Rock Haulers, LLC, attended and presented evidence and testimony on behalf of Appellant. Others present to provide testimony were members of the public. All witnesses intending to testify and present evidence were sworn or affirmed. The Board heard a staff report from the Interim Director. Attorney Tatum and County Attorney Morphis made opening statements. Also, Mr. Morphis made a Motion to Dismiss the appeal. Attorney Tatum presented a PowerPoint presentation in support of the Appeal. Mr. Day provided an Affidavit in support of the appeal and provided oral testimony. The Interim Director presented evidence and testimony regarding the Determination that was the subject of the appeal. Members of the public presented oral testimony in opposition to the Appeal. Attorney Tatum and County Attorney Morphis made closing statements. After carefully considering all evidence and testimony, and after engaging in deliberation among the Board, and based upon competent, material and substantial evidence presented during the hearing, the Board renders the following FINDINGS OF FACT, CONCLUSIONS OF LAW and makes the following DECISION: FINDINGS OF FACT Page 3 of 26 3 1. Appellant purchased the property at 3722 Woodsdale Road in Person County (the “Property”) on April 26, 2024. 2. The Property is located within the Person County zoning jurisdiction and is zoned RC (Rural Conservation). 3. The Appellant proposes to temporarily store synthetic gypsum on the Property as part of Appellant’s process of transporting gypsum from the seller of the materials, Duke Energy, to the buyer Certain Teed (the “Use”). 4. “Storage, Open” is permitted with a special use permit in the RC District upon approval of the Person County Board of Commissioners pursuant to the Table of Permitted Uses in Appendix C of the Ordinance. 5. “Storage, Household and Commercial” is permitted of right in the RC District, with no special use permit required, pursuant to the Table of Permitted Uses in Appendix C of the Ordinance. 6. The Ordinance does not define the terms “Storage, Open,” “Storage, Household and Commercial,” or “commercial”. 7. Prior to engaging legal counsel, on March 25, 2025 the Appellant’s engineer, Blake Hall (“Hall”), submitted a special use permit application (the “SUP Application”) to Person County for Appellant’s proposed Use, and a hearing before the Board of Commissioners was scheduled on the SUP Application for May 5,2025. 8. The hearing on the SUP Application was continued when it was determined the Appellant was not represented by legal counsel at the SUP Application hearing. No subsequent hearing on the SUP Application has occurred. Page 4 of 26 4 9. Appellant engaged attorneys Tatum and Catlett on or about the date of the originally scheduled SUP Application hearing. 10. Appellant submitted a request for zoning interpretation to the Interim Director on July 29, 2025. Appellant requested a determination of whether the Appellant’s proposed Use is properly classified as “Storage, Household and Commercial” rather than “Storage, Open”, and thus permitted by right in the RC District under the Ordinance. 11. The Interim Director issued a written determination on August 13, 2025, in response to Appellant’s request for the same classifying the Use as “Storage, Open” under the Ordinance instead of “Storage, Household and Commercial” (the “Determination”). 12. The Determination also found that an email exchange between the former Person County Planning Director Chris Bowley (“Bowley”) and Hall that took place between March 4, 2024, and March 11, 2024 (collectively the “March Emails”) constituted a final and binding zoning interpretation and Bowley determined that the Use was classified as “Storage, Open”. 13. Hall was engaged in providing engineering services in March of 2024. 14. The March Emails included general discussions about rail yards, gypsum open storage, and other related land use matters. 15. The March Emails did not expressly identify any specific property. 16. The March Emails did not mention the Appellant by name. 17. The Appellant did not own the Property when the March Emails were exchanged. 18. Appellant timely appealed the Determination by filing an Appeal Application dated August 28, 2025, which was received by Person County on August 29, 2025 (the “Appeal”). Page 5 of 26 5 19. The stated “Reason for Appeal of Decision” included with the Appeal are, in partial summary, as follows: a. “Hot Rock Haulers, LLC, believes the use is “storage, household and commercial” because the storage of gypsum is part of commercial operations.” b. “Further, emails mentioned in the Determination regarding the storage of gypsum between Blake Hall and former Planning Director, Chris Bowley, are not applicable to nor binding on Hot Rock Haulers.” 20. The Appellant presented evidence and testimony by and through its sole witness, Mason C. Day, III (“Day”), who was cross-examined by the Appellee’s counsel, in support of the Appeal. Day was tendered, and accepted without objection, as an expert witness in the field of commercial transportation for the purposes of presenting an Affidavit and oral testimony to the Board. Day’s undisputed testimony (which is also reflected in his Affidavit) included the following: a. Appellant owns a fleet of large commercial trucks and trailers. Its primary business is the transportation of raw materials, including gypsum. b. The gypsum to be stored on the Property will be trucked to the Property from Duke Energy’s Mayo plant, placed on a barrier on the ground, and stored outside uncovered until it is removed from the Property and transported to CertainTeed’s facility where it will be used to make wallboard (also known as sheetrock or drywall). c. The storage of gypsum on the Property is a form of commercial transportation, specifically goods and freight. Page 6 of 26 6 d. Certain Teed has already purchased the gypsum from Duke Energy at the time the Appellant picks it up for transport. e. Day received no notice of, and was not otherwise aware of, the 2024 Emails until he received the Determination. 21. The Appellee presented evidence and testimony by and through its sole witness, the Interim Director, who was cross-examined by Appellant’s counsel. Her undisputed testimony and evidence included the following: a. The Interim Director referenced a narrative statement titled “Planning Ordinance Amendment Appendix C., Open Storage”, and an excerpt of the June 4, 2001, Person County Board of Commissioners Meeting” both of which were included in the Record of Decision. These documents indicate all of the following: (i) Prior to the adoption of an amendment in 2001, open storage was a permitted use in the RC District; (ii) On June 4, 2001 the Ordinance was amended by the Person County Board of Commissioners to allow open storage only as a Special Use in the RC District (the “2001 Amendment”); (iii) The 2001 Amendment was initiated to provide additional review of certain storage uses through the Special Use Permit process as a result of manufactured home dealers who applied for permits to store manufactured homes on lots in Person County. b. Gypsum storage facilities had been discussed with the Interim Director’s predecessor, Bowley, going back through 2023 and 2024 before the Interim Director was employed in Person County in February 2025. c. A March 4, 2025, email from Bowley to Hall stated, “[t]he open storage only use will require this to need a Special Use Permit.” The 2024 Emails also refer to the Page 7 of 26 7 stockpiling of gypsum as open storage and reference the need for a special use permit for that use. d. Municipal zoning ordinances commonly distinguish between “outside storage” and “inside storage”. e. The Interim Director’s determination that the proposed gypsum storage was open storage does not mean it cannot also be commercial storage. Open storage can be commercial storage. The County’s ordinance uses both terms. f. Commercial storage can be inside or outside, and proposed gypsum storage can be outside and commercial at the same time. The classification of the proposed gypsum storage as open storage does not preclude it from being a commercial venture. g. The Interim Director testifed the terms “open storage” and “commercial storage” are ambigious. h. The Interim Director’s determination turned on how the materials were stored - inside or outside - and not whether the storage was household, commercial, or something else. Thus, even though the proposed gypsum storage can be both commercial and outside, the Interim Director classified the use as open storage. 22. At the close of evidence, the County Attorney made a motion to dismiss the Appeal on the basis that the March 2024 Emails between Bowley and Hall constituted a final and binding Determination as defined in N.C. Gen. Stat. § 160D-102(10) that was not timely appealed by the Appellant as required by N.C. Gen. Stat. § 160D-405(d). CONCLUSIONS OF LAW REGARDING APPELLEE’S MOTION TO DISMISS Page 8 of 26 8 1. The Board concludes and finds the March 2024 Emails do not constitute a final and binding Determination as to Appellant’s Use. The 2024 Emails did not identify the Property or the Appellant and do not expressly relate to the Use of the Property. Therefore, the Board finds the emails lacked sufficient detail and information to constitute a final, and binding order, requirement, or determination regarding the classification of the Use as required for a “Determination” pursuant to N.C. Gen. Stat. § 160D-102(10). In addition, there is no evidence in the hearing record that (i) the 2024 Emails were delivered to then owner of the Property; (ii) the 2024 Emails were delivered to the Appellant directly; or (iii) that the Appellant had notice of the 2024 Emails prior to the expiration of the time within which to appeal the contents thereof. Therefore, even if the 2024 emails constitute a final and binding “Determination” under N.C. Gen. Stat. § 160D-102(10), the Board concludes and finds sufficient notice of it was not provided as required by N.C. Gen. Stat. § 160D-403(b). 2. For the foregoing reasons, by a vote of 4-1, that the Board did, and hereby does, deny Appellee’s motion to dismiss. CONCLUSIONS OF LAW REGARDING APPEAL 1. The Board concludes and finds that the Interim Director properly classified the Use as “Storage, Open” as set forth on the Table of Permitted Uses in the Ordinance instead of “Storage, Household and Commercial” because: a. Based on the ordinary meaning of the Ordinance language, the Board concludes and finds that storing gypsum uncovered in the open air is properly classified as a “Storage, Open” principal use pursuant to the Table of Permitted Uses; and Page 9 of 26 9 b. The Person County Board of Commissioners specifically intended to require a special use permit for the principal use of open storage of items on property in the RC District when it adopted the 2001 Amendment. 2. Appellant did not dispute that the Use could be classified as “Storage, Open”. Instead, Appellant argued (a) while the Use could be classified as “Storage, Open” it also could properly be classified as “Storage, Household and Commercial”; (b) if both principal use classification applied, the Ordinance is ambiguous; and (c) special rules of construction require ambiguous ordinance language to be construed in favor of the free use of property when the language is in conflict; and (d) because “Storage, Household and Commercial” is a permitted use in the RC District that is the proper classification of the Use. 3. The Board does not find the Ordinance is ambiguous or in conflict as applied to the Use for the following reasons: a. To avoid an irreconcilable conflict, the Board adopts the reasonable interpretation of the Interim Director that “Storage, Open” applies to outside storage, and “Storage, Household and Commercial” applies to covered or inside storage which is consistent with the intent of the Board of Commissioners when it adopted the 2001 Amendment. b. In addition, even if “Storage, Household and Commercial” were not to apply to inside or covered storage exclusively, the Board finds the open-air storage of gypsum as proposed is not “commercial” storage. The Board concludes that since the gypsum to be stored on the Property is neither bought nor sold by the Appellant, it is not “commercial” storage under the Page 10 of 26 10 ordinary meaning of that term and as described in Ashe County v. Ashe County Planning Board, 387 N.C. 159, 913 S.E.2d 212 (2025)(the term commercial is generally defined as [o]f, relating to or involving the buying or selling of goods.”). DECISION THEREFORE, after first having denied Appellee’s motion to dismiss by a vote of 4-1, the Board finds and concludes the Interim Director’s Determination that the Use is classified as “Open, Storage” instead of “Storage, Household and Commercial” should be upheld, IT IS ORDERED that Appellant’s Appeal be DENIED. Signature Page Follows Page 11 of 26 11 DONE AND APPROVED BY UNANIMOUS VOTE OF THE BOARD MEMBERS PRESENT AND VOTING AT THE EVIDENTIARY HEARING ON THIS MATTER on the 23rd day of September 2025. __________________________________________ Cynthia Lynch, Chair Person County Board of Adjustment Signed and filed this ______ day of October 2025. ______________________________________________ B. Michie Brandon, Person County Planning Technician Secretary to the Board of Adjustment NOTE: An aggrieved party may appeal a decision by the Board of Adjustment to the Superior Court of Person County. Such appeal shall be in the nature of certiorari, pursuant to North Carolina General Statute § 160D-1402 and must be filed within the time provided by North Carolina General Statute § 160D-1405(d). Page 12 of 26 BOA meeting 9/23/2025 Page 1 of 4 PERSON COUNTY PERSON COUNTY BOARD OF ADJUSTMENT SPECIAL MEETING MINUTES Person County Office Building, Room 215 September 23rd, 2025, 7:00 PM A. CALL TO ORDER/DETERMINATION OF A QUORUM Chair Cynthia Lynch called the meeting to order at 7:00 PM and welcomed attendees. She noted the meeting would follow a quasi-judicial format and testimony would be limited to competent, material, and substantial evidence regarding the appeal under consideration. Roll Call - Conducted by Staff Michie Brandon. The following members were present: • Steven Evans (Alternate) • Bernard Lampert • David White • James Thomasson • Cynthia Lynch • Huntington Fitzgerald A quorum was declared present. Other parties present included: Brian Ferrell, attorney representing the Board of Adjustment, T.C. Morphis, attorney representing Person County and Planning staff, Margaret Hauth, Interim Planning Director, and Michie Brandon, Planning Technician. B. CONFLICT OR INTEREST POLLING OF MEMBERS Chair Lynch administered a conflict-of-interest questionnaire to each board member. Vice Chair James Thomasson voluntarily recused himself due to prior independent research and receipt of ex parte information. He retired to the public seating area. No objections were raised by legal counsel regarding the participation of remaining board members. Chair Lynch described the framework of the hearing and noted that the members may hear testimony from parties with legal standing in the appeal. Chair Lynch invited individuals asserting standing to come forward. No additional parties claimed standing. C. PUBLIC HEARING – AP-01-2025 – Appeal of Zoning Administrator’s Interpretation • Swearing in of the witnesses Chair Lynch administered the oath to all who anticipated providing testimony. Chair Lynch entered the 27-page agenda packet provided to the board members and the May 3, 2021 copy of the Person County Planning Ordinance into the record. • Staff Report Margaret Hauth, Interim Planning Director, introduced the project and provided a brief timeline of how the appeal came forward. She noted the applicant had filed for a Special Use Permit, the application was schedule for a hearing before the County Commissioners, the hearing was continued once the applicant secured legal counsel, and the interpretation was requested after Page 13 of 26 BOA meeting 9/23/2025 Page 2 of 4 legal counsel was retained. She said that her interpretation that the proposed use by Hot Rock Haulers constitutes “open storage” under the ordinance and therefore requires a special use permit. She noted that neither “open storage” nor “commercial storage” is defined terms in the ordinance. • Opening Statements Appellant’s Presentation Attorney Robin Tatum, representing Hot Rock Haulers, LLC, presented the appellant’s case. Slides of the PowerPoint presentation are attached and included in the record. Key points included: • The proposed gypsum lay-down yard is part of a commercial supply chain involving CertainTeed and Duke Power. • The yard functions as a temporary transfer point, not passive storage. • Under North Carolina law, ambiguous ordinance language should be interpreted in favor of free use of property. • The appellant contends the use qualifies as “commercial storage” and should be permitted by right. • The appellant disputes the validity of prior email correspondence used to justify the zoning administrator’s decision, citing lack of proper notice to the owner and absence of reference to the appellant or the subject property in the “determination.” Attorney Tatum submitted a notebook of exhibits including an affidavit from Mr. M. C. Day and relevant legal authorities. Board members asked questions of Attorney Tatum to better understand the information being presented. County’s Presentation Attorney T.C. Morphis presented the County’s introductory information. He confirmed that the County would be asking for the appeal to be dismissed, but the County will also ask that the Board rule on the interpretation. Attorney Morphis referred to portions of the cases provided by Attorney Tatum in the notebooks to the board members, addressing why the County believes the appeal should be dismissed as the appeal was not timely filed based on the former director’s determination in 2024. Attorney Morphis also presented the County’s position that the interpretation was both a plain language interpretation and aligned with the documented legislative intent from the addition of “open storage” to the Planning Ordinance. • Chair Lynch asked the parties to present their cases, with the appellant going first. Attorney Ferrell asked that the confirmation of oath be noted for each speaker. He noted that Interim Director Hauth had been previously sworn. • Appellant’s Presentation Attorney Tatum called Mason C. Day, III to come forward. He confirmed that he was previously sworn. Attorney Tatum questioned Mr. Day to get his relationship tot the case and his professional knowledge entered in the record and asked that he be qualified as an expert witness Page 14 of 26 BOA meeting 9/23/2025 Page 3 of 4 regarding commercial transportation. Attorney T.C. Morphis did request that M.C. Days expert testimony be limited to the field Mr. Day has a career in which is commercial transportation. Mr. Day confirmed the statements in the affidavit included in the appellant’s evidence notebook. Attorney Morphis asked Mr. Day questions about his steps to bring this project forward and his path to acquiring this property and proposing storage on the property in question. • County’s Presentation Attorney Morphis called Margaret Hauth to come forward. He asked her to describe her background and training in land use planning. Attorney Morphis asked Ms. Hauth to walk through her interpretation of the use. Ms. Hauth stated that her interpretation was determined based on her experience in the field, previous interpretations by staff, information provided from Blake Hall, engineer who was originally listed as the applicant for the special use permit, and legislative intent documented in Person County records when the use “open storage” was added to the ordinance. Attorney Tatum asked Ms. Hauth questions about her interpretation steps, notice to Mr. Day, and guidance in North Carolina law regarding interpretations. • Questions from Board members The board members asked questions of Mr. Day and Ms. Hauth to clarify their understanding of the facts of the case. Attorney Ferrell provided some guidance and description of the “free use of property” guidance from North Carolina courts to be used in interpreting ordinances and restricting land use. The members discussed this in detail and understand its applicability to the appeal. • Public Comments Chair Lynch invited individuals asserting standing to come forward, reminding speakers that the board could only consider competent, material, and substantial evidence, not opinions or questions. Chair Lynch called those members of the public who signed up to speak. Debbie Williams – offered no testimony. Erin Catlett – offered no testimony, part of the appellant’s legal team. Margaret McAllister – offered no testimony. Everette Motely – no longer present Jimmy Dallas – no longer present Joseph Dibiasi – confirmed that he had been sworn – 53 Dorothy Brooks Lane, Woodsdale, NC. He noted that the appellant’s definition of commercial storage involved the buying or selling of material. He asked if Mr. Day is buying or selling anything. Chair Lynch noted her concern that the question was out of bounds. Liz Bradsher – confirmed that she had been sworn. She said she does not think the Board has all of the information that is critical for this decision. She provided some background on happenings prior to this application. Attorney Ferrell indicated the information being offered wasn’t directly related to the appeal. Page 15 of 26 BOA meeting 9/23/2025 Page 4 of 4 Chair Lynch said that concluded the list of signed speakers, so the next steps would be closing statements and deliberation. • Closing statements Attorney Morphis requested the Board dismiss the appeal because the time to appeal the determination had passed in 2024 when Mr. Bowley had determined this use was open storage. He also asked that, regardless of the Board’s finding on the dismissal, they also rule on the interpretation. Attorney Tatum asked the Board to not dismiss the appeal, stating the email did not constitute a determination as defined in state law. She also asked the Board to overturn the interpretation, noting vague and undefined terms must be interpreted in favor of use of property. • Deliberation The members discussed various aspects of the case, focusing first on whether the appeal should be dismissed and moving on to the validity of the interpretation. After considerable discussion, the chair asked if the members were ready to vote. • Motions and Votes Member Fitzgerald made a motion to deny the County’s request to dismiss the appeal because the written determination by Mr. Bowley lacked of proper notice to the property owner and did not reference the appellant or the subject property. Member Evans seconded. The vote was 4-1 with Member Lampert opposing. Member Lampert made a motion to deny the appeal because the interpretation by the planning director that it is open storage is accurate, and the Board finds that proposed use is not commercial storage. Member Fitzgerald seconded. The vote was unanimous, 5-0. D. APPROVAL OF THE MINUTES Member Evans moved to approve the August 19, 2025 minutes, and Member Fitzgerald seconded. The vote was unanimous, 5-0. E. ADJOURNMENT Member Fitzgerald moved to adjourn. Member Evans seconded. The vote was unanimous, 5-0. The meeting was adjourned at 10:59 p.m. ___________________________________ Chair, Cynthia Lynch ___________________________________ Recording Secretary, Michie Brandon Planning Technician, Person County Planning and Zoning Page 16 of 26 Page 17 of 26 Page 18 of 26 Page 19 of 26 Page 20 of 26 Page 21 of 26 Page 22 of 26 Page 23 of 26 Page 24 of 26 Page 25 of 26 Page 26 of 26