ZBA-6-07
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 Government Center Drive, Wilmington, NC, on June 26, 2007. Members Present Members Absent Mike Furman, Chairman Brian Eckel Michael V. Lee, Vice-Chairman Michael S. Jones Dan Weldon
Carmen Vincent Gintoli Tim Fuller Peter M. DeVita Ex Officio Members Present Sharon Huffman, Assistant County Attorney J. Steven Still, Acting Executive Secretary Colleen Murtaugh, Acting
Clerk 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 noted that the minutes from the April 2007 ZBA were not in the packet. Mr. Furman requested that Mr. Still provide
copies to all board members present. Mr. Furman swore in County staff, Mr. J. Steven Still. THE FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS: WillKrys Rentals LLC, 24 Saltmeadow Road,
Figure Eight Island, is requesting a variance from the side setback requirements of New Hanover County Zoning Ordinance, Section 51-2. Property is zoned R-20S. Case No. ZBA-806. Mr.
Furman called Mr. Still to give an overview of the case. Mr. Still stated that in transfer of ownership of the home, a side setback violation was discovered on the western side of the
house, which was built in 1976. While Zoning Ordinance Sec. 51-2 requires a 15-foot setback, one side of the house intrudes into the setback area, with a setback of 14.01 feet at the
closest point. The Applicant has submitted findings of fact. Mr. Peter DeVita asked why this was not discovered during the survey of the prior sale.
2 Mr. Still stated that this is one of many homes located on Figure Eight Island with this problem. Mr. Furman called for those to speak in favor of granting the variance request to
come forward to be sworn for testimony. Attorney Tom Johnson with Ward and Smith was sworn. Mr. Johnson, in response to the question, stated that he did not know why the error occurred.
One of the issues is due to the age of the property and like many of the properties located on Figure Eight Island, it can be a difference of how someone surveys the lot. Due to the
size of this particular lot, an error can happen. Mr. Johnson stated that the Figure Eight Covenants and Restrictions made the required setbacks subject to be determined by the Architectural
Control Committee. The ACC was in control of placing the residence on each lot at the commencement of construction. A survey conducted in 1976 of 24 Saltmeadow Road provides evidence
that this might be the cause of the setback.
Mr. Johnson submitted to the Board: one copy of the original Figure Eight Covenants and Restrictions, one copy of the amended Figure Eight Covenants and Restrictions, current tax record
of 24 Saltmeadow Road residence, and an aerial photograph from New Hanover County tax records showing the adjacent property lines. Mr. Johnson stated that this situation fulfills the
criteria necessary to qualify for a variance and has submitted the proposed findings of fact. The property at 24 Saltmeadow Road is zoned R-20S with
rmined by the most recent survey, which shows the current �
�in its current position for approximately 30 years and the adjacent property owners have not objected.
Enforcement of the required setback would result in an undue burden on the property owner because of the minor violation of the New Hanover County Zoning Ordinance. He stated that the
violation amounts to less than 10 percent variance requirement, represents human frailty, and was not created by the current property owner, who purchased the lot in its current state.
The spirit of the New Hanover County Ordinance is being observed in this matter in terms of the public safety and welfare of New Hanover County for substantial justice. He noted that
he is available to answer any questions, but due to the impending sale of the property, the current owners have taken responsibility to resolve this matter any further. Mr. Furman asked
when the present owners bought the property. Mr. Johnson stated that the property was purchased in 1989. Mr. Furman asked if there was a survey of the property at that time. Mr. Johnson
stated that to the best of his knowledge, no. He said that in his experience, title insurance companies have allowed property owners survey coverage without obtaining a current survey
due to the fact that there is rarely a problem that would cause the title company to provide a current survey. Therefore, property owners do not always obtain surveys when purchasing
property. He further stated that he always recommends clients to obtain surveys to avoid this problem. He said that this situation was not self-created by the property owners. Mr. Furman
asked if the adjacent property owners were notified.
3 Mr. Johnson said that yes they were notified, and none have objected. He also requested that it be amended that the application and survey were submitted by the property owner. Mr.
Furman asked if there were any other questions. Mr. Furman called for those to speak in opposition to granting the variance request to come forward to be sworn for testimony. There was
no one present to speak in opposition to granting the variance request. Board Decision: 1. WillKrys Rentals LLC, 24 Saltmeadow Road, Figure Eight Island, is requesting a variance from
the side setback requirements of New Hanover County Zoning Ordinance, Section 51-2. Property is zoned R-20S. Case No. ZBA-806. 2. On a motion by Mr. DeVita and seconded by Mr. Fuller,
the Board voted unanimously to GRANT the variance based on the findings of fact submitted. THE SECOND AND LAST CASE BEFORE THE BOARD WAS AS FOLLOWS: J.T. and Patty Lynn Marley, 2415
Oakley Road, are requesting a variance from the 20,000 square foot minimum lot size and 90 foot minimum lot width requirements of New Hanover County Zoning Ordinance Section 52-2. Property
is zoned R-20. Case No. ZBA-807. Mr. Furman called Mr. Still to give an overview of the case. Mr. Still stated that Mr. and Mrs. Marley own the 14,246 square foot lot located at 2415
Oakley Road. In the R-20 zoning district, lots created after the imposition of zoning are required to contain at least 20,000 square feet and be at least 90 feet wide. This parcel is
comprised of an original 10,000 square foot lot plus an irregularly-shaped area that was recently added to the lot. All indications are that the 10,000 square foot parcel was created
after the initial zoning of this area of the County, and is therefore an illegal lot. The Marleys are successors in title to this property, and did not have any part in creating the
illegal lot division. In fact, the party from whom they bought the 10,000 square foot lot had been issued a special use permit for a mobile home by the Board of County Commissioners
in 2003. That permit
in the Planning Department files to indicate when the parcel was created. That special use permit has since expired due to the passage of more than two years
without issuance of a building permit. All indications are that the special use permit was issued in error. A prospective purchaser now wants to buy this property and build a conventional
home on it. As the problem with the lot size and history has just come to light, Mr. and Mrs. Marley are seeking a variance to allow someone to build a home on this property. 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. Claude ,
Jr.
4 Ms. Huffman noted that Mr. was acting as a representative for the Marleys. Based on a new ruling of the State Bar, it is the county r�
� notify the Board of Adjustments that Mr. appearing to represent the owner could be construed and seen as an unauthorized practice of law.
She stated that at this time there needs to be a determination by the Board of Adjustments on how to proceed. Either the owners can be sworn in, introduce themselves, and advise what
they are here attempting to accomplish. Then the Marleys can have Mr. speak on their behalf. Or the board may determine that there is no need to follow that practice
and proceed with the case. Mr. DeVita asked Mr. if the owners will be speaking. Mr. stated that if there are any questions for them, the Marleys
will respond. Mr. Furman swore in Patty Lynn and J. T. Marley. Mr. Lee asked if Mr. Shields was only going to provide factual evidence to support this case. Ms. Marley said that
Mr. was only going to provide factual evidence based on the fact that he was the interested party in the outcome of the case. Mr. Lee stated that since Mr.
was providing factual testimony and not actually representing the Marleys, he felt the Board could proceed with the case without considering the unauthorized practice of law. Mr.
stated that he had been in the market for building a starter home. He had seen the Marley property for sale and spoke with them about purchasing with the intention of building a
single family residence at that location. At that time the Marleys stated that there was a special use permit issued for that lot from the previous lot owner, Mr. Byrd. The special use
permit approved the placing of a mobile home on that lot. The Marleys had obtained permits for well and septic tank from the New Hanover County Health Department, based on the special
use permit. The special use permit was issued on June 2, 2003, and was valid for two years. It expired under the Marley possession and was not renewed. Mr. said
that when he was interested in purchasing the lot, he met with Ann Hines, New Hanover County Zoning Chief, to discuss the expired special use permit. Ann Hines stated that it appeared
the special use permit should not have been issued due to the non-conforming size of the lot based on the zoning. Mr. then found documents in the special use permit
file that stated the lot was an existing lot of record and is 10,000 square feet. He said that he attempted to find documentation of the lots existence prior to the 1974 establishment
of the Zoning Ordinance, to fall under the grandfather clause. He could only date the records back to 1978. At that time it was decided to propose a variance to the Board of Adjustments
for approval of building a home on this lot. Mr. confirmed that that the well and septic permits issued by the Health Department were valid for five years. Mr.
stated that he has taken into account the R-20 zoning setbacks and designed his home to conform to those standards. The home is designed as a three bedroom, two bathroom single family
residence and the building footprint is 1600 square feet. He stated that over time the lot has been bought and sold four times. Mr. has provided a list of these buyers.
He said that it was a reasonable assumption that the previous owners were able to build a home on the lot. He stated there has been no opposition to this request from adjacent property
owners or the Marleys. Mr. DeVita asked how long the Marleys have owned the lot. Mr. Marley stated that they have owned the lot for approximately two years.
5 Mr. DeVita asked if Mr. Marley had the existing special use permit for the mobile home when he purchased the lot. Mr. Marley said yes he had the special use permit as well as the well
and septic permits. Mr. DeVita asked if Mr. Marley allowed the special use permit to expire. Mr. stated that the previous owner, Mr. Byrd had obtained the special
use permit on June 2, 2003. The permit was approved for two years. Since that time, the permit has expired and was never renewed. The well and septic permits were issued and approved
for five years. Those permits are still currently accepted. Mr. Fuller asked if either of the adjacent property owners, Coleman or Wolf, were willing to sell a portion of their lot to
provide a conforming lot. Mr. said that the Marleys had attempted to purchase more property, but no one was interested in selling any of their property. Mr. DeVita
stated that there was 4200 square feet added to the Marley lot. He asked how this property was obtained. Mr. Marley stated that he had purchased 4200 square feet from Mr. Edward
Wolf to enhance his property. Mr. DeVita confirmed that Mr. had designed a 1600 square foot single family home with three bedrooms and two bathrooms. He asked if Mr.
was willing to meet the setbacks of that area even though his lot did not conform to the required square footage. Mr. stated that he designed the
home with the consideration of the R-20 setback requirements and the home meets all of those setbacks. Mr. Furman asked if there had been any attempt to install the septic tank or drill
a well at this site. Mr. said there has been no attempt to install the tank or drill the well. He also said that the permits were based on number of bedrooms, not
they type of structure located on the lot. The Health Department confirmed that the permits formerly issued for the mobile home would still be valid for a single family structure, provided
that it was a three three bedroom structure. Mr. DeVita asked Mr. if he bought the piece of property based on the existence of the special use permit. Mr.
said yes. Mr. DeVita stated that the purchaser of the property did not create his own hardship because Mr. bought the lot based on the existence of the special use
permit. Mr. Fuller asked Ms. Huffman about the legal implications of granting a variance for a lot that could potentially be a legal lot of record.
6 Ms. Huffman stated that the reason there is a request for a variance is due to the fact that the lot is not a legal lot of record. If the lot was a lot of record there would be no
need for a variance. If the variance was denied, the County would not have any liability in that case. The lot owner can claim hardship based in part on the Board of Commissionersissuance
of an improper special use permit, but again the County would not have any liability in that case. She also stated that if this variance was not granted, the lot would never be suitable
for a home in its current state. If more property was purchased to add to the lot, then it could be considered a suitable lot. Mr. Weldon asked if any of the adjacent properties were
more than 20,000 square feet. Mr. stated that the adjacent property to the right of this property is 20,000 square feet. Across the street none of the parcels appear
to meet R-20 zoning requirement and are historically established lots that do not have a direct line of ownership. Mr. DeVita asked if the road located on the southeast of the property
could provide Mr. with 6000 square feet of road right-of-way to add to the lot. Mr. stated that the Marleys attempted to do that when the 4200 square
feet was purchased, but the Wolfs were not interested in selling. Mr. DeVita asked if Mr. Wolf had any objection to Mr. construction of a residence on that lot.
Mr. stated that Mr. Wolf did not object. The only problem was not being able to meet the zoning requirements. Mr. Fuller asked if the variance was for both 20,000
square feet and the lack of 90 foot frontage. Mr. said that he was not aware that the 90 foot frontage was an issue until he received the letter. Mr. Furman called
for those to speak in opposition to granting the variance request to come forward to be sworn for testimony. Board Decision: 1. J.T. and Patty Lynn Marley, 2415 Oakley Road, are requesting
a variance variance from the 20,000 square foot minimum lot size and 90 foot minimum lot width requirements of New Hanover County Zoning Ordinance Section 52-2. Property is zoned R-20.
Case No. ZBA-807. 2. On a motion by Mr. Lee and seconded by Mr. DeVita, the Board voted unanimously to GRANT the variance based on the findings of facts submitted. There being no further
business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Acting Executive Secretary Chairman