ZBA-2-06
1 MINUTES ZONING BOARD OF ADJUSTMENT February 28, 2006 The New Hanover County Zoning Board of Adjustment held a regular and duly advertised meeting at 5:30 P.M. at the New Hanover Government
Complex, 230 Market Place Drive, Suite 110, Wilmington, NC, on January 24, 2006. Members Present Members Absent Mike Furman, Chairman Michael S. Jones Michael Lee, Vice-Chairman Brian
Eckel Dan Weldon Carmen Gintoli Ex Officio Members Present Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary Shawn Ralston, Asst. Chief Zoning Enforcement Official
Linda E. Painter, Zoning Enforcement Official The meeting was called to order by the Chairman, Mr. Mike Furman. Mr. Furman explained to all present that the Board is a quasi-judicial
board appointed by the Board of Commissioners to consider zoning ordinance variances from residents in New Hanover County where special conditions would create unnecessary hardships.
The Board also hears appeals of the �
�thirty days in which to appeal any decision made by the Board to Superior Court. It was properly moved and seconded to approve the minutes of the November
29, 2005 Board of Adjustment meeting (1 abstain, Gintoli), and also the minutes from the January 24, 2006 meeting (all ayes). Mr. Furman swore in County staff, Ms. Ann S. Hines. The
first case before the Board was as follows: Advance Auto Parts, 5206 Carolina Beach Road, is requesting a variance from the height restrictions of New Hanover County Zoning Ordinance,
Section 94-4(1) for freestanding signs. Property is zoned B-2. Case No. ZBA-768. Mr. Furman called Ms. Hines to give an overview of the case Ms. Hines stated this is an application for
a variance filed by Advance Auto Parts located at 5206 Carolina Beach Road in the B-2 zoned commercial district. Ms. Hines said this is an existing business with an existing ground ground
sign that was damaged by a hurricane last summer, which resulted in them having to remove the 300 square foot sign cabinet. She stated the sign is not conforming in
2 the Carolina Beach Road corridor with the present sign rules that calls for only one ground sign per premises and that one sign could only be 6 feet in height and no more than 100
sq. ft. in surface area. Ms. Hines said the sign company is seeking a variance to replace the 300 sq. ft. sign cabinet with a 150 sq. ft cabinet at a 25-foot sign height. She said the
property is not half way through the amortization period for the original sign, which means if the sign is replaced with a non-conforming one it would still need to be replaced with
a 6-foot sign beginning August 1, 2011. Ms. Hines said the applicant has stated to reduce the sign height and be able to utilize the existing foundation would cause the sign to project
into a parking space. Mr. Furman called those to speak in favor of granting the variance request to come forward to be sworn or affirmed for testimony. He swore in Mr. Kevin Booker.
Mr. Booker stated that he works for Commonwealth Sign Company and they are one of four sign vendors for Advance Auto Parts. He said they were notified Nov 21, 2005 that the sign had
been damaged by a hurricane and they immediately called to find out what to do next. He said initially they were told by Linda that they could repair the signs but Shawn determined that
they could not repair the sign and they had to comply to the new sign regulations that allows for a 150 sq. ft sign not to exceed 6 foot overall height. Mr. Booker said if they adhere
to the Ordinance they can meet the square footage requirements but the height requirement would be an issue. Mr. Eckel asked if the sign is still standing or if it is down. Mr. Booker
said they took the sign down because it looked unsightly. Mr. Furman submitted into record a letter of objection from Mr. Girardot. Mr. Furman said Mr. Girardot sent a copy of the letter
to all the Board members. Mr. Furman called for those to speak in objection to granting the variance request to come forward to be sworn for testimony. There was no one present to object
to the Board granting the variance request. Board Deliberation Mr. Gintoli asked Ms. Hines to distinguish between repair and replacement. Ms. Hines referred to Section 97 of the New
Hanover County Zoning Ordinance: (3) No replacement -Another nonconforming sign shall not replace a nonconforming sign except that the substitution or interchange of poster panels, painted
boards or demountable material on nonconforming signs shall be permitted. (4) Repair -Minor repairs and maintenance of nonconforming signs such as repainting, electrical repairs and
neon tubing repairs shall be permitted. (5) Alteration, Relocation or Replacement -Nonconforming signs, which are structurally altered, relocated or replaced, shall comply in all respects
with the provisions of this Ordinance, except as specifically excepted herein. Ms. Hines said there are no specific exceptions that would apply to this sign. She said they explored the
structural aspect of it with the Building Inspector and was told by them that the frame and the sign in the cabinet is a structural component of the sign. She said the 50% rule in the
replacement of signs is not allowed if damage exceeds 50% but in this case, these provisions were
3 the over-riding and applicable provisions of the Ordinance. She said the need to replace so much of the structure essentially made it a new sign. Mr. Furman asked Mr. Booker what would
be the problem if he built a sign that complies with the Ordinance. Mr. Booker said they had an existing sign 38 feet overall in height since 2001 and all they are asking for is what
they had before it was damaged. Mr. Gintoli said it was stated that they would lose a parking space if the sign is lowered to 6 feet but looking at the photograph from Mr. Girardot,
it does not appear that they would be loosing a parking space. Mr. Booker said that refers to the overhang. Mr. Eckel said whether they lose a parking space or not would not be considered
a major hardship. Board Decision 1. Advance Auto Parts, 5206 Carolina Beach Road, is requesting a variance from the height restrictions of New Hanover County Zoning Ordinance, Section
94-4(1) for freestanding signs. Property is zoned B-2. Case No. ZBA-768. 2. On a motion by Mr. Gintoli and seconded by Mr. Eckel the Board voted unanimously to DENY the variance request
based on the fact that it does not appear that there would be a loss of a parking space if the sign is lowered to be in compliance with the Ordinance, and there would not be a hardship
if the sign were lowered. The second case before the Board was as follows: Home Life, Inc., 2020 Corporate Drive, is requesting a variance from the 25-foot side setback requirements
of New Hanover County Zoning Ordinance, Section 59.6 for a proposed building in the Special Highway Overlay District (SHOD). Property is zoned PD. Case No. ZBA-769. Mr. Furman called
Ms. Hines to give an overview of the case. Ms. Hines stated that Mr. Wilson Ki of Homelife, Inc is requesting a variance from the 25-foot interior setback that applies to commercial
properties in the Special Highway Overlay District. She said the property is in Northchase Industrial Park and it is the same property and same owner that came to the Board in November
2005. She said the the building footprint is the same and parking is the same but Mr. Ki wishes to add a third story to his building. She said the original variance was granted mainly
because the property is some distance away from highway I-40 and there are a couple rows of trees between this property and I-40. Ms. Hines said with the aesthetic purpose of the Special
Highway Overlay District, it serves no purpose to impose a 25-foot setback as opposed �
�-40. The Chairman called those to speak on granting the variance request to come forward for testimony. Mr. Furman swore in Mr. Wilson Ki.
4 Mr. Ki presented pictures showing the location of the property and he pointed out to the Board how the property would not be visible from highway I-40. He said he took pictures from
the parking lot across from his building, as well as from I-40. Mr. Ki said a pond is to the side of his lot where another building will be built and would create a big gap between the
buildings. Mr. Weldon asked how tall the building would be and what is the plan for the building. Mr. Ki said the building will be approximately 40 feet and he needs to install an elevator
to help with his nuts and bolts business. The Chairman called for those in opposition to granting the variance request to come forward. There was no one present to oppose granting the
variance request. Board Deliberation Mr. Gintoli asked Ms. Hines if the parking would remain the same. Ms. Hines said in preliminary discussion with Mr. Ki, it appears that he will meet
the Ordinance minimum parking requirements and that would partially depend on what kind of occupancies goes into he building. She said general office occupancy requires one parking space
for every 400 sq ft gross floor space and warehouse space, which is part of this, and falls into the industrial parking formula that is based on the number of employees and number of
business vehicles. Mr. Gintoli said his concern is that if this parking layout does not meet the Ordinance for the 12,900 feet then he would probably add more space and cut into the
trees. Ms. Hines said they do not know who would be going into the building yet but from preliminary discussion they meet the requirements. She said there is no adjacent residential
zoning and the only thing is the SHOD setback of 25 feet that has to be maintained from the sides and the rear property line. Board Decision 1. Home Life, Inc., 2020 Corporate Drive,
is requesting a variance from the 25-foot side setback requirements of New Hanover County Zoning Ordinance, Section 59.6 for a proposed building in the Special Highway Overlay District
(SHOD). Property is zoned PD. Case No. ZBA-769. 2. On a motion by Mr. Lee to GRANT the variance request based on the finding of fact and provided that no additional trees be removed
other than what is shown on the site plan. Mr. Eckel seconded the motion. 4 ayes and 1 nay (Lee). The third and last case before the Board was as follows: Thomas J. Sutton, 5905 Watermill
Way, is appealing the decision of the Zoning Enforcement Official and issuance of a civil citation for violation of New Hanover County Zoning Ordinance, Sections 23-82 and 68.1 for the
storage of inoperative vehicles, and Ordinance Section 50-2, operating an appliance business, in a residentially zoned district. Property is zoned R-15. Case No. ZBA-763. (Continued
from January 24, 2006 meeting)
5 Mr. Furman called Ms. Hines to give an overview of the case.
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�nse. She said this is a dual zoning violation and directed the Board to Zoning Exhibit D. Ms. Hines said Exhibit D encompasses a series of field reports and photographs.
She said this is a standard R-15 residential zoned lot located at 5905 Watermill Way. Ms. Hines said there is not a residence on the lot but there is a garage building and Mr. Sutton
stored approximately 11 to 12 inoperative vehicles on the property. She said Zoning Ordinance Section 68.1 requires that residential property owners limit the number of inoperative vehicles
to one per premise and the Ordinance defines inoperative vehicles as vehicles lacking a current North Carolina safety inspection or clearly unable to move in the manner in which it was
intended. Ms. Hines said Mr. Sutton was issued a citation for $100.00 and another one for $300.00 over a period of months in 2005 and both citations were not appealed. She said they
revisited the property on December 1, 2005 and found a number of inoperable vehicles, home appliances and HVAC equipment stored on the premise, which is not a permissible use for an
R-15 residential zone property. She said Zoning issued a $500.00 citation, which Mr. Sutton appealed and in his Notice of Appeal he stated his grounds as selective enforcement. She said
when Zoning gets a complaint they make every effort to respond to it and pursue it and the
Mr. Eckel asked Ms. Hines if she had the opportunity to go to the site today. Ms. Hines said she did visit the site today and she presented copies of the field report from that site
visit to the Board and Mr. Sutton. She noted that there is a reduction in the number of vehicles on the property. Ms. Hines said there is approximately a half dozen vehicles on the property
and it appears that some efforts had been made at moving a number of the HVAC equipment and refrigerators. The Chairman called for those to speak on granting the appeal to come forward
to be sworn or affirmed for testimony. Mr. Furman swore in Mr. Thomas Sutton. Mr. Sutton stated that he purchased the property with the intention of placing a house on the lot where
the garage presently sits. He said after he purchased it he found out that he could not put a house on the lot and he had to hurry and find another lot to move the mobile home onto.
Mr. Sutton said he is essentially stuck with this lot so he uses it as a shop. He said most of the vehicles are titled in Virginia and cannot have a North Carolina sticker. He also said
all the vehicles belong to him and most of them run but he does not use them often. He said his first citation was issued in 2000 by Zoning Official, Rod Conatser and afterwards he moved
several vehicles. He said in March he received a notice from Zoning Official, Linda Painter. Mr. Sutton said he explained that the appliances came from Taylor Homes and he would need
to take them to his warehouse in Goldsboro, NC to see if they were any good and bring them back to dispose of them. He said he thought it would be best to do it all at this lot but he
was told he had to remove them. Mr. Sutton said he works out of town and his primary residence is in Virginia. He said he is in town about 4 months out of a year and is presently preparing
to move everything to Kentucky. He said he would have it all cleaned out by June. Mr. Sutton said there are 120 lots in Myrtle Gardens and over 20 properties there are in violation;
there is one boat yard, an automotive shop, a firewood business, two wrecking services, a roofing company with multiple trucks, a junkyard, a salvage operation, a vegetable stand and
a used car lot.
6 Mr. Weldon asked Mr. Sutton how he was able to work on the vehicles if he is only in town 4 months a year. Mr. Sutton said he was here more than 4 months but in 2002-2003 he spent
most of his time in Goldsboro and weekends here. Mr. Weldon pointed out vehicles with major parts removed and asked Mr. Sutton about the vehicles being operable. Mr. Sutton said he tear
vehicles apart to reuse the parts to rebuild other vehicles. He said he also have classic cars such as 1960 Thunderbird, a 1972 Scout, a 1970 tow truck, and a Mustang. Mr. Gintoli referred
to the photograph and asked Mr. Sutton if that was the classic Thunderbird. Mr. Sutton answered yes. Mr. Gintoli said the vehicle was buried up to the chassis and appears that it had
not been moved in years. Mr. Sutton said that vehicle still runs and it was there when Zoning Official, Rod Conatser was at his lot.
report, which is very detailed, starting in November 2000, �
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also lists the black Mazda truck. Mr. Gintoli asked Mr. Sutton what new information does he have to present tonight.
Mr. Sutton said he removed one of the boats and 5 vehicles. Mr. Eckel asked Mr. Sutton what he did with the vehicles and equipment he removed. Mr. Sutton said the trucks are being scrapped
and the appliances are being sent to Atlanta. Mr. Eckel asked Mr. Sutton why he did not remove everything since he knew he would appear before the Board tonight. Mr. Sutton said you
have to dispose of appliances within the county that you are moving from. He said he had a used appliance business out of Goldsboro and he sold all his his items from there. M. Furman
asked Ms. Hines if all the properties are zoned R-15 and she answered yes. Mr. Furman asked Ms. Hines if there was a possibility that any other properties in this area are non-complaint
in an R-15 zone. Ms. Hines said yes. She said she noted some properties that appeared to have zoning violations, and there are some that Zoning was aware of some and some that Zoning
was not aware. Ms. Hines said they are presently in court with a judgment against the Skipper property. She referred to page 23 of Exhibit A, where she noted the boats and a junkyard
area concealed by vegetation. Ms.
7 Hines eMs.
Hines said and she has asked Mr. Sutton to provide better addresses for the ones in violation. Mr. Eckel asked Ms. Hines since Mr. Sutton is not going to clear everything off the lot
until June, if he is denied, how would the fines work. Ms. Hines said Zoning tries to work with people in regards to these violations but June is a long way off. She said the case in
court now is involving a man with three times as many vehicles and the judge gave him 2-1/2 months to move those vehicles. Ms. Hines said less than a month would be comparable to what
the judge found in that case. Mr. Moore said the Board could not address the future citation enforcement at tonigh Mr. Furman emphasized that the Board was here
to make a decision on the December 1 citation. He asked Mr. Sutton if he had seen the pictures of his property with the vehicles and other equipment on it. Mr. Sutton answered yes. He
asked what he should do about the inoperative vehicles from Virginia since they cannot have North Carolina stickers. Mr. Weldon said Virginia has laws that vehicles have to be inspected.
Mr. Sutton said yes they have laws in Virginia, but you do not have to carry the vehicles back and forth. He said for example if he were stopped here for invalid inspection sticker on
a Virginia vehicle, he would not be cited for it. He said it does not make sense to take a vehicle back to Virginia just to get a sticker placed on it. �
� Mr. Sutton said he is willing to move all the vehicles by June if
the $900.00 fine is suspended. He said if he does not move them out by then, he will pay the fines. Board Decision 1. Thomas J. Sutton, 5905 Watermill Way, is appealing the decision
of the Zoning Enforcement Official and issuance of a civil citation for violation of New Hanover County Zoning Ordinance, Sections 23-82 and 68.1 for the storage of inoperative vehicles,
and Ordinance Section 50-2, operating an appliance business, in a residentially zoned district. Property is zoned R-15. Case No. ZBA-763. (Continued from January 24, 2006 meeting) 2.
On a motion by Mr. Weldon and seconded by Mr. Gintoli, the Board unanimously to uphold the decision of the Zoning Enforcement Official. There being no further business before the Board,
it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Vice-Chairman