ZBA-9-06
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 September 26, 2006. Members Present Members Absent Mike Furman, Chairman Dan Weldon Michael V. Lee Brian Eckel Michael S. Jones
Peter DeVita 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.
2 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 rpretation in enforcement of the Zoning Ordinance. He
added that appellants have thirty days in which to appeal any decision made by the Board to Superior Court. It was properly moved by Mr. Lee and seconded by Mr. Eckel to approve the
minutes of the August 22, 2006 meeting. Mr. Furman swore in County staff, Ms. Ann Hines and Ms. Shawn Ralston. THE FIRST CASE: Violet P. Ward and David Ward have appealed staff approval
of site plan revisions for Special Use Permit #13 for a commercial marina at 1512 Burnett Road and are asking the Board to reconsider issues raised at its August 22, 2006 meeting. Property
is zoned R-15. Case No. ZBA-792. Mr. Furman called Mr. Holt Moore to read a letter that he sent to him. Mr. Moore said he sent this letter to the Chairman and also sent a copy to the
appellant and property owners counsel. Mr. Moore read the following letter:
3 Dear Chairman Furman: �
�r tomorrow night. Upon review of this appeal, and the draft of the minutes of the last meeting, it is apparent to me that this appeal
is barred under the doctrines of collateral estoppel and res judicata. As one of the Board members aptly stated during the consideration of whether to hear case number ZBA-774 last month,
the Board considered the entire September 2005 plan for the marina, including the location of the parking in the COD setback, in the hearing of case number ZBA-790, which was also heard
last month. Thus it would be improper for the Board to allow this matter to be re-litigated. Additionally, while the appeal purports to address a staff determination of August 31, 2006,
the subject of the appeal is the allowance of parking within the COD setback. This determination was made at least by the time of the approval of the administrative change on September
29, 2005, and although this plan was re-approved on July 24, 2006, the purported appeal of that issue, by David and Violet Ward on September 6, 2006, which is before the Board tonight,
was not in -day appeal deadline. For these reasons, I will be recommending that the Board not hear this appeal. Mr. Furman
said the Board does not need to re-hear this case and any further incidence of this case should be before Superior Court. Mr. Eckel said he agrees.
4 Mr. Lee said he agrees but would like to hear from counsel. Mr. DeVita said this is a very complicated case that involves more than allowing or not allowing a marina. He asked Mr.
Moore if the Board hears this case how legal and binding a decision can this Board make. Mr. DeVita also said he would like to hear the attorney explain why he feels the Board should
hear the case. Mr. Moore said the Orders hsome potential
that he would be in a position to go to Superior Court from those decisions, as opposed to having the hearing. Mr. Moore also said if there is any potential to resolve this, it may be
worth it to allow him to review those orders. The Chairman called Mr. Raney to speak. Mr. Raney said he is representing David and Violet Ward. Mr. Raney said this got on the agenda from
a request for a hearing filed by David Ward and Violet Ward that involved appealing a decision of the Mr. Raney said there was a
paragraph in that request, that reads: In the alternative, we may request that the Board make clear its decision on the issue of the Conservation Overlay District because at the conclusion
of the last hearing, the motion was made
. Mr. Raney said Mr. Moore indicated in his opinion letter that the issue was raised and decided; if that is the case, and the Order explicitly indicates
the Board determination on that issue, then that would resolve their issue. Mr. Raney said, at the last meeting, there was a letter requesting that hearing and it has a paragraph
in it that reads: The parking lot that you allowed to be placed within 30 feet of the bulkhead is in violation of the Conservation Overlay District. Mr. Raney said he did not recall
the Board specifically addressing that issue in its motion and conclusion. He said if the
5 decision has not already been made and is not in effect by the entry of an order, they are asking for the opportunity to make further arguments on that issue. Mr. Eckel suggested that
they be given the opportunity to review the Order and the Board can proceed to hear the next case. Mr. Lee said the COD was never a determination or decision because it did not apply.
Mr. Moore said the Order stated that staff determined that the COD setback should not apply and that was set forth as a finding of fact in the Order. Mr. Raney said if that is what is
in the Order, they can reduce this to requesting that the Order states that the Conservation Overlay District does not apply to the proposed development within 100 feet of the high water
mark. Ms. Hines said in a residential district the Ordinance calls for 75 feet not 100 feet. Mr. Raney asked that the Board consider looking at that Order again to make sure it addresses
that issue and to make it explicit in their ruling. Mr. Moore said Mr. Ward included that in appeal and is not satisfied that the Board ruled upon that issue,
which is something that should have been addressed at that meeting when it was on the table.
6 Mr. Raney said the Order had not been entered and from Mr. Mo, he determined that it had been addressed and decided upon. Mr. Raney said if that is the case
and it is on the Order, then they are through, but if it is not the case, the Board needs to put it in the Order. Mr. Lee asked if it is appropriate to circulate the Order between parties
for comment. Mr. Moore said that has not been the history with this forum and he emphasized that he is not a party but he did draft the letter. Mr. Moore said the minutes show that there
was a lot of discussion about it and Ms. Hines discussed her position on it and why she found that the COD did not apply. He said this new appeal is almost identical to what was discussed
in the previous hearing and it seemed inappropriate to have a second hearing of something that was on the table at that time. Mr. DeVita asked Ms. Hines the determining factor that led
Zoning or this Board to rule that the COD did not apply. Ms. Hines said there was discussion among the Board members about how this related to the extra parking complying with the Ordinance
requirements. Ms. Hines explained that the COD Ordinance
was approved. She said that requirement for extra parking to serve the clubhouse, in conforming with the Ordinance, had to deal with
numbers of parking spaces but that original Special Use Permit called for additional spaces to serve to clubhouse, when it was to be built. Ms. Hines said it required an enlargement
of the parking and the only place to go was to the water. Mr. Eckel said he was present at the meeting and that issue was discussed a number of times and the decision was made in front
of the Board. Mr. Eckel said he does not see any reason to hear it again.
7 Mr. Lee said that was one of the findings of fact leading to the conclusion that it was a minor change. Mr. Raney said he would prefer to table their case until he reviewed the Order
with his clients. THE SECOND CASE: Gregory Kull, 1128 Loman Lane, is requesting a variance from the setback requirements of New Hanover County Zoning Ordinance, Section 53-2 to allow
an existing patio awning to remain in its present location. Property is zoned R-10. Case No. ZBA-789 (Continued from August 22, 2006 meeting) Mr. Furman called those to speak in favor
of or in opposition to granting the variance request to come forward to be sworn or affirmed. Mr. Furman swore in Mr. Gregory Bruce Kull. The Chairman called Ms. Ralston to give an overview
of the case. Ms. Ralston stated that Mr. Gregory Kull of 1128 Loman Lane is requesting a variance from the setback requirements of the Zoning Ordinance Section 53-2 to allow an existing
patio awning to remain in its present location. She said the property is zoned R-10 which requires a 10 foot building setback between buildings but the awning was existing when he purchased
the property and it encroaches into the setback by 2.7 feet.
8 Mr. Wessell said he is representing Mr. Kull. He said Mr. Kull purchased the property in 2003 and at the time he purchased the property, it had a small open patio on a concrete pad
with a metal awning across the patio on posts. Mr. Wessell said there are two surveys in the package; one survey
he adjacent neighbors property. He said the �
� and the survey of the adjacent property, shows it to be 4.9 ft from the property line. He said the total division between buildings is 7.3 ft
instead of 10 ft, and the awning encroaches into the setback area 2.7 ft. Mr. Wessell said the patio awning was in place when Mr. Kull purchased the property. He said Mr. Kull did not
have the property surveyed when he purchased it and one of the neighbors reported the violation to the County. Mr. Wessell presented pictures to the Board and pointed out the patio and
awning. Mr. Wessell then addressed each Conclusion from The first conclusion asks if the applicant complies with the
literal terms of the ordinance, if he can or cannot secure a reasonable return from or make reasonable use of his property. Mr. Wessell said if the Board requires the removal or relocation
of the awning, Mr. Kull loses the ability to get the full benefit of this awning that he has paid for. The second requirement asks whether the hardship is the result of unique circumstances
related to Mr. Wessell said the patio was installed by a prior owner and not by his client; he did not create the hardship. He said this also
applies to Conclusion #3 that the hardship was not created by the applicant. The fourth Conclusion asks if granted, would the variance be in harmony with the general general purpose
and intent of the ordinance; would it preserve its spirit.
9 Mr. Wessell said there is still a viable separation between the houses and it does not adversely affect the neighbor because that space on the side is not useable space. The fifth
Conclusion asks if granted, would the variance secure the public safety and welfare and do substantial justice. Mr. Wessell said the Fire Marshall had no problems with the awning and
it would give Mr. Kull the ability to use what he has paid for. Mr. Furman called for those to speak in opposition to the Board granting the variance request. There was no one present
to speak in opposition to the variance request. Board Decision 1. Gregory Kull, 1128 Loman Lane, is requesting a variance from the setback requirements of New Hanover County Zoning Ordinance,
Section 53-2 to allow an existing patio awning to remain in its present location. Property is zoned R-10. Case No. ZBA-789 (Continued from August 22, 2006 meeting) 2. On a motion by
Mr. Eckel and seconded by Mr. Jones, the Board voted unanimously to GRANT the variance request based on the findings of fact presented. THE FIRST CASE (continued):
10 Violet P. Ward and David Ward have appealed staff approval of site plan revisions for Special Use Permit #13 for a commercial marina at 1512 Burnett Road and are asking the Board
to reconsider issues raised at its August 22, 2006 meeting. Property is zoned R-15. Case No. ZBA-792 Mr. Raney stated he has reviewed the Order for ZBA-790 with his clients. He said
if it is the tion that finding of fact number 10 is what the Board intends to conclude as a matter of law, then the Order can be amended to include
finding of fact number10. He also asked the Board to include their decision in the Order for ZBA -774 from the previous meeting. Mr. Moore said that may be a resolution to make that
a conclusion of law that it was considered last month. The Chairman called for anyone else that would like to speak. Mr. Kenneth Shanklin said they do not have a problem with what was
decided. Mr. Moore asked Mr. Raney if they were withdrawing their appeal contingent upon the change of the Order. Mr. Raney said for the record, they are withdrawing their request for
a new hearing because the change in the Order makes the old hearing satisfactory to their needs and the appeal filed by Violet Ward and David Ward is withdrawn.
11 There being no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Chairman