Garner sues over business using residential properties

kjahner@newsobserver.comJanuary 27, 2014 

KYLE JAHNER — kjahner@newsobserver.com Buy Photo

— The town has filed a lawsuit to stop a husband and wife from continuing to run a concrete contracting business out of a home and an undeveloped residential plot.

The couple, Jorge Del Toro Gutierrez and Irma Del Toro have been working to secure a non-residential property so they can continue their contracting business, Del Toro Concrete.

According to the lawsuit, the defendants use their Garner residence at 107 Ashbourne as a base and employee parking lot for their business. They also use an undeveloped residential lot to store construction vehicles and equipment behind a fence built without a permit. They received a notice of violation on both counts on Nov. 26, 2013, and a letter from the town telling them to stop.

“There’s been a lot of neighborhood complaints,” town attorney Bill Anderson said.

The town filed its lawsuit on June 21 after not hearing from the couple. Coincidentally, Anderson said Gutierrez walked into the office of Jason Brown, the town’s code enforcement planner, about an hour after Anderson filed the complaint.

“He said they’re looking for a commercial property to use and are addressing the problem. Our response is, ‘We’ll see,’” Anderson said. “The residential neighborhood and the cul de sac aren’t designed to hold that many cars.”

Del Toro acknowledged using their driveway for employee vehicles, and also said they were looking for another site. On Jan. 23, seven cars sat in the driveway, three she said belonged to the family. All of the cars sat on the family’s concrete driveways.

The town wants the court to order the business to stop operating on the residential property, remove the unlicensed fence and pay fines of $100 per day until ordinances are no longer being broken. By Wednesday, if unaddressed, $6,100 in fines will have mounted.

Asked if that amount could be mitigated if the defendants correct the problems in the near future, Anderson was non-committal. “We’ll see what happens,” he said.

The suit cites nine cars found on Nov. 19 at the home near the intersection of N.C. 50 and Timber Drive. It alleges most of them belong to employees who leave them after taking a work vehicle to a job site. Gutierrez has owned the home since 2008.

Gutierrez also bought the vacant, 2.6-acre lot at 7800 Trudy Lane in April 2013. Southwest of the town’s limits but inside its zoning jurisdiction, the property sits around other residential homes near White Oak Road just east of I-40. An opaque six-foot tall fence that exceeds ordinance limits in height conceals a shelter constructed for construction equipment storage, the lawsuit maintains. A large dump truck was observed on the property Nov. 20.

Gutierrez and Del Toro applied for a permit to run a business from home. But that permit included a Home Occupation Agreement which the suit said the defendants signed on Jan. 31, 2012.

That agreement says that only one non-resident on the premises can be employed in connection with the business. It also says the business will not generate traffic “in excess of what is normal in the residential neighborhood” or “create a parking demand for more than two vehicles not owned by the residents at any time.”

Next-door neighbors Dave and Amanda Druck said the violations haven’t come with any nuisance to them. They said the town had asked the defendants about the dump truck, which used to be parked at the home at times.

“They come to our parties, they have cookouts, they’re really nice people,” Amanda Druck said.

Jahner: 919-829-4822; Twitter: @garnercleveland

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