ZBA-3-06
1 MINUTES ZONING BOARD OF ADJUSTMENT 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 April 25, 2006. Members Present Members Absent Mike Furman, Chairman Michael V. Lee Michael S. Jones Brian Eckel Dan Weldon, Alternate
Member Tim Fuller, Alternate Member Ex Officio Members Present Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary Shawn Ralston, Asst. Chief Zoning Enforcement
Official The meeting was called to order by the Chairman, Mr. Mike Furman. The Chairman explained that the Board tonight would consist of four members instead of five members, which
mean there has to be a unanimous vote to obtain a variance. 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
He added that appellants have 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 February 28, 2006 Board of Adjustment meeting. (3 in favor, 1 abstain, Fuller) Mr. Furman swore in
County staff, Ms. Ann S. Hines and Ms. Shawn T. Ralston. The first case before the Board was as follows: Donald Register, 5901Watermill Way, is requesting a variance from the setback
requirements of New Hanover County Zoning Ordinance, Section 52.5-2 for an existing garage. Property is zoned R-15. Case No. ZBA-770. Mr. Furman called Ms. Hines for testimony. Ms. Hines
stated that Mr. Register has indicated that he would like a continuance. Mr. Furman called Mr. Register. Mr. Donald Register requested a continuance of his case to the May 23, 2006 me
eting. 2 Board Decision 1. Donald Register, 5901 Watermill Way, is requesting a variance from the setback requirements of New Hanover County Zoning Ordinance, Section 52.5-2 for an existing
garage. Property is zoned R-15. Case No. ZBA-770. 2. On a motion by Mr. Fuller and seconded by Mr. Jones, the Board voted unanimously to continue the case to the May 23, 2006 meeting.
The second case before the Board was as follows: JJ & K Properties, Inc., 5044 Carolina Beach Road, is requesting a variance from the buffer requirements of New Hanover County Zoning
Ordinance Section 67-4 between this commercial project and the abutting residential area. Property is zoned B-2. Case No. ZBA-771. Mr. Furman called Ms. Hines to give an overview of
the case. Ms. Hines stated the applicant has developed a commercial tract on Carolina Beach Road, zoned B-2 (Highway Business) as outdoor storage for boats and campers. She said the
project is complete and open for business under a landscaping bond. Ms. Hines said they are seeking a a variance to alter the planted buffer requirements on the north side of the property
and to delete the buffer requirement on the rear side of the property. She said there are residential platted lots on the north �
�-fence on or near the common property line. She said the
Zoning Ordinance calls for a privacy fence to be on the inside of a planted buffer and they are proposing an 8-foot solid wood fence. Ms. Hines said the rear side abuts a large tract
that is predominately 404 Federally regulated wetlands and a very small portion of the wetlands comes onto this property in the rear buffer area. Ms. Hines stated that this particular
property is not wetlands but the adjacent property is heavily wooded and the applicant contends that there is no practical purpose to be served by having a planted buffer on that side.
Ms. Hines added that there is some precedent to granting variances from buffer screening requirements, such as with Rucker Johns and A to Z Properties. 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 Ms. Cindee Wolf. Ms. Wolf stated that she is the agent for JJ & K Properties.
Ms. Wolf presented four exhibit pictures to the Board that she said shows the fence, wetlands and the vegetation buffer screening. Ms. Wolf said the facility is an at-grade facility
with no building connected with it. She said their first request is to modify the buffer planting requirement along the northern boundary with an 8-foot high solid wood fence and 4-foot
high plantings along the fence. She said the owner contacted the neighbors along the northern boundary and their preference was to put the fence on the property boundary rather than
setting it back the customary 20 feet. Ms. Wolf said there is no regulation against putting the fence on the boundary line, but technically, they would not get credit for it as being
a fence alternative buffer in that location. She said they are seeking that modification of the ordinance requirement to get credit for the fence and the second request involves the
rear of the property where there is a large expanse of wetlands. Ms. Wolf said they would fall within the if there
are existing areas of natural growth that is sufficient to provide the intended screening between a project and possible residential unit locations that the buffer is not necessarily
required. She said they do not believe that putting a buffer in that location
3 is necessary because of the wetlands, which will be set aside as a conservation area, would serve the purpose of screening from any potential residential units. Ms. Wolf said they
have not caused any hardships and the project is bonded. Mr. Weldon asked where the property line was located. Ms. Wolf said the property line is about six inches behind the fence, which
is presently on the property boundary. Ms. Wolf also said if this variance was not approved they would have to put another row of shrubs to meet the three row buffer yard requirement
rather than the 50% buffer yard. Mr. Fuller asked Ms. Wolf if they have actually constructed the fence. Ms. Wolf said yes, they have constructed the fence but would like to get credit
for it in their buffer yard requirements. Mr. Fuller asked if the fence extends the entire east-west length of the property line. Ms. Wolf said yes. She said the fence runs from the
front corner to the back corner, which would be the entire distance along the first two lots and 50 feet feet into the next lot. Mr. Fuller asked Ms. Wolf who owns the property where
the wetland area is located. Ms. Wolf said Dr. Sobol owns that property. She added that she has seen some of the preliminary layouts of his Performance Residential development and it
shows a stream of units where Knotts Forest Drive comes onto the site along the wetland area and more units in the rear. Mr. Fuller said the landscape plan shows a buffer. Ms. Wolf said
they had to show the complete landscape plan in order to get construction authorization. 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. Fuller asked what would happen if the Board grants the
variance, the wetlands are not dedicated as a conservation area and something happens which would cause the wetlands to go away. He asked if someone then developed this as residential
property, would they be required to put the buffer on their property so that the two zonings uses would be isolated. Ms. Hines said the current ordinance requires buffer screening to
protect residential development from commercial. She said if you had multi-family residential abutting single family residential, screening would need to be provided for the single family
lots. Ms. Hines said in this case, there is existing vegetation because there is an offset from the rear property line and whatever protection would be there would be afforded by the
natural vegetation in that area.
4 Mr. Furman said the way the property is set up now there are so many spots allotted to house boats. He asked if the consideration of this buffer would impinge upon any of those individual
spots where boats would be stored. Ms. Wolf said the only storage spots permitted are the ones that are lined. She said they will not get any more or less spaces if there are any modifications.
Mr. Jones asked how it would work if a building were constructed on the property. Ms. Wolf said they would have to modify the site plan. Ms. Hines explained that if the Board grants
a variance for this use and the use changes, it would negate the variance. Mr. Furman said there is an issue of whether this is a hardship. Ms. Hines read from New Hanover County Zoning
Ordinance Section 67-The Board of Adjustment may modify or waive the requirements of this section, where it can be demonstrated by the property owner that the specific screening
buffer or landscaped open space is not needed for the protection of surrounding residential areas because of intervening streets, roadways, drainage ways, or other factors such as natural
growth of sufficient height and density to serve the same purpose as the required screening buffer. Board Decision 1. JJ & K Properties, Inc., 5044 Carolina Beach Road, is requesting
a variance from the buffer requirements of New Hanover County Zoning Ordinance Section 67-4 between this commercial project and the abutting residential area. Property is zoned B-2.
Case No. ZBA-771. 1. On a motion by Mr. Jones and seconded by Mr. Fuller the Board voted unanimously to GRANT the variance request based on the findings of fact and other evidence presented.
All ayes. The third case before the Board was as follows: David Donohue and Mary Farley, 3025 North Kerr Avenue, are requesting a variance from the side yard setback requirements of
New Hanover County Zoning Ordinance Section 69.11 and the buffer requirements of Section 67-4 to construct a commercial building. The property is zoned AI. Case No. ZBA-772. Mr. Furman
called Ms. Ralston to give an overview of the case. Ms. Ralston stated that Mr. Donohue has requested a variance from the side yard setback requirements of Section 69(11) and buffer
requirements of Section 67(4) in order to construct an office for his business, Native Landscapes. Ms. Ralston said Mr. Donohue was granted a variance from the side yard setback and
buffer requirements on October 2, 2002 (ZBA-698); however, that variance has expired without a building being constructed. Ms. Ralston said the property and all the surrounding properties
are zoned A-1 (Airport Industrial); however, a nonconforming residential structure is located to the left of the property, which requires a setback. She said that setback was calculated
by multiplying the building height by 3.0 which resulted in a 43.12-foot side setback with
5 a planted buffer which would be 21.5 feet. Ms. Ralston said there is a service road located at the rear of the property that prevents use of that portion of the property, and the applicant
has stated that as a result of the service road and the setback requirements, he does not have reasonable use of his property. The Chairman called those to speak on granting the variance
request to come forward for testimony. Mr. Furman swore in Mr. David Donohue. Mr. Donohue stated that their property abuts residential property owned by Mrs. Pigford, who has no objection
to their use of the property and is in support of the variance request. He said plans of the property show the 43 foot setback, the front yard setback and a utility easement that runs
down an existing large drainage ditch which would make the remaining property unbuildable. He said to construct a building using the requirements of the Zoning Ordinance would not be
consistent with the Kerr Avenue road frontage. Mr. Jones asked if there are any changes with the proposed construction and Mr. Donohue said no. Mr. Donohue and the Board discussed his
plans. 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. Furman asked Ms. Ralston if this was the same variance that the Board granted in 2002. Ms. Ralston said it is the same variance but had expired. Mr. Fuller said his only concern
would be that he could build a building on the property but could not build it in that exact location. He said that location on the property gives him more exposure from the street.
Mr. Furman asked Mr. Donohue what is the type of business and Mr. Donohue said landscaping contracting business. Mr. Jones asked if it will be offices or an actual store. Mr. Donohue
said it will be his office with storage behind it. Mr. Fuller asked if this is the threshold that the Board needs to be setting. He said even though Mrs. Pigford has no objections to
the variance variance request and it will probably be rezoned commercial in the future, he still questions the standard that the Board is setting. Mr. Fuller said there should be a real
identifiable hardship or some type of obstruction to the use of the property as opposed to there is no reason not to do it.
6 Board Decision 1. David Donohue and Mary Farley, 3025 North Kerr Avenue, are requesting a variance from the side yard setback requirements of New Hanover County Zoning Ordinance Section
69.11 and the buffer requirements of Section 67-4 to construct a commercial building. The property is zoned AI. Case No. ZBA-772. 2. On a motion by Mr. Jones and seconded by Mr. Weldon,
the Board voted unanimously to GRANT the variance request based on the finding of fact and other evidence presented. The fourth and last case before the Board was as follows: Thomas
B. West, 8345 Bald Eagle Lane, Porters Neck Plantation, is requesting a variance from the setback requirements of New Hanover County Zoning Ordinance Section 51-2 for an existing non-conforming
lot. Property is zoned R-20S. Case No. ZBA-773. Mr. Furman called Ms. Ralston to give an overview of the case. Ms. Ralston stated that Mr. West is seeking a variance from the minimum
R-20S side yard building setback of 15 feet. Ms. Ralson said Mr. West states that the lot lot was subdivided in 1955, prior to adoption of the R-20S setback requirement. She said Mr.
West also states that covenants recorded in July 1946 for Porters Neck Plantation require that no structure be located closer than 10% of the �
�setback. Ms. Ralston said Mr. West further
states that the 15 foot side yard setback would limit the width of a single family house to 30 feet. She stated that Mr. West is asking for the covenant to be enforced rather than the
R-20S side setback requirement. 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 West
and Mr. Matthew Doyle. Mr. West stated that they own four lots in the Bald Eagle area and two of the lots, 35-A Section B and lot 11-A, runs along the waterway. Mr. West said there are
lots along the waterway currently dedicated to the use of the Porters Neck Homeowners Association and also those lots are subject to deeded access for the property owners on the western
side of Bald Eagle Lane. He said the western side of Bald Eagle Lane has approximately 43 lots that run along the inlet side and those lots are, in some cases, contiguous to the golf
course. Mr. West said lot 35-A Section B is dedicated to the sewer pumping station and also used for access for the residents of the Porters Neck County Club. He said the lots on the
waterway side are used as a boat ramp, a boat dock, and a picnic area and all residents on the opposite side of Bald Eagle Lane have deeded access to use the two lots for access to the
waterway. He said lot 11-A Section E is of no functional use to the Porters Neck Homeowners Association. Mr. West said when the property was purchased from the Champ Davis Trust Foundation,
they did not know what the use would be for lot 11-E. He said that lot is adjacent to the fairway and the Country Club does not allow walking across the fairways through that lot to
get to the waterway, so lot 35-A is used to get to the waterway. Mr. West said they want to prepare the lot for sale and would prefer to sell it to the landowners that are contiguous
to the property. He said lots 11 and 12 adjoin their lot and are considered nonconforming under the R-20S zoning because they are less than 90 feet wide. Mr. West said lot 10 is also
nonconforming and they all have houses on them except for their lot. He said the R-20S zoning did not come in effect until1982 and some of this land was purchased prior to 1982. Mr.
West added that their lot existed in 1955.
7 He presented the original restrictions and covenants for Porters Neck Plantation, which he said was no
dwelling or any structure shall be located nearer to any side line than 10 percent of the width of the said lot on which said dwelling or structure is located. Mr. West said if they
built a structure using the R-20S requirements the structure would be 30 feet wide. He said they would like to have a setback of 6 feet on one side and 50 feet on the other side, which
would allow a house width of 39 feet. Mr. West said they want to construct a home that would be complementary to the other existing homes in that area. Mr. Doyle stated that he is with
the law firm of Caulder and Caulder. He stated that there are four
one of the four lots that does not have a house on it. He said the restrictions that were recorded back in 1950 applied only to the Sections B and C. Mr. Doyle said typically when
restrictions are recorded and other sections are added later, something is then recorded to state that the original restrictions apply to the new sections as well. He said in this case,
they did not find that but they did find six deeds that make the lots adjacent to this lot in the same section, subject to the original restrictions with the 10% setback. Mr. Doyle said
they feel that it was the intention of the developer that these restrictions would go to all the lots. He added that this was all done before the R-20S designation. Mr. Weldon asked
if lots 11 and 12 were both under the 10% setback. Mr. West said all of the lots along the western side of the inland side of Bald Eagle are subject to the original covenants. Mr. Weldon
asked when the homes were built. Mr. West said lot 12 was purchased in 1981. Mr. Fuller asked if lots 10, 11 and 12 were granted variances to build he houses. Mr. West said he is is
sure but they must have been granted variances. Ms. Hines said they would not necessarily have been granted a variance. She said if they do not meet the side setbacks and they were built
after the R-20S zoning, they either got a variance or an error was made. Mr. Fuller asked when the Porters Neck Homeowners Association took possession of lot 11-A. Mr. West said they
took possession in 2004. Mr. Fuller asked Mr. West if he took possession of the lot knowing the limitations existed on the lot. Mr. West said they did not know of the limitations when
they purchased the lot. Mr. Fuller asked if lot 11-A has been offered for sale, as is. Mr. West said no. He said they have had some expressions of interest but no serious offers. Mr.
Fuller asked if it has been offered to the adjacent property owners and Mr. West said no, but they would like to offer it to them.
8 Mr. Furman called for those to speak in opposition to the variance request to come forward for testimony. The Chairman swore in several people and advised them to give their name at
the time of their testimony. Mr. John Craft said he owns adjacent property to the south side of lot 11. He said the request for a setback of lot 8341 is not appropriate because the lot
does not conform to R-20S zoning. Mr. Craft said R-20S zoning was established in 1987 after the homeowners went to the Planning Board to get the R-20S zoning established in order to
build on the lots and to maintain the consistency of Bald Eagle Lane with homes on ½ acre of land. He said the setback requested will bring the house too close to his house and it could
be hazardous during a hurricane with a house being that close. He also mentioned that emergency vehicles need to be able to get between these lots. Mr. Craft said if this variance is
allowed what would prevent them from coming back to request the same variance request for the other lots. He also asked what would prevent the property owners on Bald Eagle Lane with
100 foot lots from subdividing those lots into 50 foot lots. Mr. Craft presented an article from the Wall Street Journal that he said shows two homes on a narrow lot and he also presented
petitions signed by the homeowners in opposition to the variance request. Mr. Weldon asked Mr. Craft the setbacks that he built his house under. Mr. Craft said 15 feet. He said his lot
is an 80 foot lot and most of the other lots are 90 feet. He said the 80 foot lots were included in the R-20S zoning and were built in order to have 60 foot rights-of-way to the water.
Mr. Craft said it is a common use area where people can walk. Mr. Weldon asked if the 50 foot lots were developed. Mr. Craft said not yet. Mr. Jones asked if anything was on lot 12-A
Section F. Ms. Wanda Canady said the lot was subdivided. The Chairman called for anyone else to speak to come forward. Mr. Grady Merriman said he is the homeowner of lot 12 and he then
presented the 1955 plot map that he said was used to sell the lots. Mr. Merriamn said lot 12 is shown on the map to be 80 feet and 11-A is shown as 60 feet. He said to correct a statement
made earlier that lots 10 and 11 are nonconforming lots; they are 80 feet. He said the only variance that he has knowledge of is when Wood Haynes gave a donation to the Davis foundation
after purchasing the lot, in order to secure deeded access for lot 11 to the waterway and the bulkhead. He said Mr. Haynes had a front and side residential addition which resulted in
it being five feet from the property line of 11-A and he is 15 feet off that lot. Mr. Merriman said if this variance is granted, they would be able to build within 6 feet of his property
which would diminish the value of his property and create a stormwater problem. He explained that from lot 8 to lot 16 water runs down that road from both directions and sometimes it
can go over the bulkhead because there is nothing built on the property. He said if they do go in there and make make some of that property impermeable, then the flood waters would spread.
Ms. Catherine Kassens said the property was sold as property not to be developed. She said Mike Brown served on the Board of the Porters Neck Foundation when the property was transferred
to
9 the developers and he was told the property was for public use. Ms. Kassens said they did not pay the market value for a buildable lot and are not suffering a hardship to be unable
to sell it. She said the neighborhood is developed as low density single family residential and they are applying to take away green space. She mentioned that she went online and got
information concerning the amount of space needed for emergency vehicles to maneuver between houses and the minimum is 12 feet between buildings and other structures for Cook County.
Ms. Kassens said the granting of this variance request would not be in the interest and welfare of the community. Ms. Tina Youngs said they do not have 50 foot lots; 80 foot lots are
the minimum and 60 foot lots are for access. She said her concern is that they owners of the 100 foot lots would subdivide their lots into 50 foot lots if this variance is granted. She
said even thought they do have 80 foot lots that do not meet the 90 foot frontage, those lots are over the 20,000 sq. ft. minimum acreage but the 60 foot lots are not. Ms. Wanda Canada
said the 60 foot rights-of-way were never intended to be built on from the beginning. Mr. John Stike said he is presently building a house on Bald Eagle Lane. He said when plans were
submitted the architect was very careful that the side yard setbacks were 15 feet and it was enforced by Building Inspections. He said it is not fair for anyone else to have less than
that as a setback. Mr. Howard Rockness said the 15 foot setback would not support a variance by the homeowners association. He said the property that he owns within the Porters Neck
Plantation community has nothing to do Bald Eagle Lane but with a lot that abuts Champ Davis Drive, located behind that community. He said the security issue raised by Mr. West has nothing
to do with the variance request because that lot shares a road with a string of lots and none of the lots have limits on access into Porters Neck Plantation. Ms. Lois Furr said she hopes
the Zoning criteria will be honored unless there is an over-riding hardship. Ms. Hines said in regards to the statement made that the 80 foot wide lots were not nonconforming, those
lots may be large enough to meet the 20,000 sq. ft minimum lot size, but 80 feet is a nonconforming width. Ms. Hines said the ordinance requires a 90 foot width in the R-20 and R-20S
zoning districts. Ms. Hines said in reference to subdividing the 100 foots lots into narrower lots, it would not meet the Zoning Ordinance for the minimum lot width, and therefore 50
foot wide conventional lots could not be created in this zoning district.
1. He said the R-20S was enacted in this neighborhood in 1982 per Sam Burgess in Planning Department. 2. He said there are 4 lots owned by the homeowners association and the subject
lot is one of those 4 lots. He said the other three lots have deeded access and this lot does not have deeded access. 3. 3. He said a house 35-40 feet high and is the maximum height
that a house could be built in R-20S. 4. He said Mr. Merriman is on the waterway side of Bald Eagle and this lot in question is on the other side the street. They are both 11A but in
2 different sections. 5. In response to the 12 foot minimum for emergency vehicles, if the variance is granted, on
10 6. He said he has researched the public records and could not find any evidence to say that this lot could never be developed. He submitted a photo of a 30 foot wide house, as an
example of the type of house his client wants to build which would be in the spirit of the community. Board Deliberation Mr. Furman said the main issue is they bought the property knowing
of this problem and now they come to the Board but there is no hardship because they created the hardship. He also said he would not be in favor of granting this variance request. Mr.
Fuller said the lot has not been offered for sale and the property has changed hands twice with these conditions on it. He said although there may be some computed value, he does not
see a hardship. Board Decision 1. Thomas B. West, 8345 Bald Eagle Lane, Porters Neck Plantation, is requesting a variance from the setback requirements of New Hanover County Zoning Ordinance
Section 51-2 for an existing non-conforming lot. Property is zoned R-20S. Case No. ZBA-773. 2. 2. On a motion by Mr. Fuller and seconded by Mr. Jones the Board voted unanimously to DENY
the variance request based on the findings of fact. All ayes. There being no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive
Secretary Vice-Chairman