ZBA-9-07
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 County Government Center,
230 Government Center Drive, Human Resources Training Room B, Wilmington, NC, on September 25, 2007. Members Present Members Absent Mike Furman, Chairman Michael V. Lee Michael S. Jones
Tim Fuller, Alternate Brian Eckel Carmen Gintoli, Alternate Dan Weldon Peter DeVita, Alternate Ex Officio Members Present Sharon Huffman, Assistant County Attorney J. Steven Still, Acting
Executive Secretary Hattie Moore, 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 properly moved by Mr. DeVita and seconded by Mr. Eckel to accept the minutes
of the August 28, 2007. The Chairman swore in County staff, Mr. Steven Still. THE FIRST AND ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: John and Andrea McGuire, 5227 Masonboro Harbour
Drive, are requesting a variance from the rear yard setback requirements of New Hanover County Zoning Ordinance, Section 52.5 (2) to enclose an existing deck. Property is zoned R-15.
Case No. ZBA-812 Mr. Furman called Mr. Still to give an overview of the case. Mr. Still stated Mr. and Mrs. McGuire are the owners of a home located at 5227 Masonboro Harbour Drive,
near the Myrtle Grove area of the county. Mr. Still said in the course of applying for a permit to enclose an existing deck, a problem was discovered in relation to the rear setback.
He said the building and deck had been in this location since the initial construction in 1997 and based on a plot plan and survey submitted by the original homeowner and builder, a
building permit had been issued for the construction of the building and deck. He said the plot plan showed the home and deck in a location that appeared to meet required building setbacks,
avoiding a 15-foot drainage easement on the rear of the property but a recent survey disclosed that the deck encroaches 3 feet into the rear setback. Mr. Still said a Building Inspector
approved the location of the building, but did not catch the error and a final Certificate of Occupancy was issued. Mr. Still
2 stated Mr. and Mrs. McGuire said they cannot receive a reasonable return on the deck if they adhere to the literal terms of the ordinance. He said Mr. and Mrs. McGuire have explored
other options which included removing the area of the deck that encroaches into the setback as well as contacting the adjacent rear property owners in hopes of purchasing additional
property to alleviate the setback encroachment. Mr. Still said the applicants have submitted proposed findings of fact in support of the variance criteria, along with an as-built survey
showing the location of the house and deck as well as exhibits A through F. Mr. Still also said one letter of opposition was delivered to the Zoning office today and he included copies
of the letter in the Board packages. He added that one of the criteria of granting the variance request is that the hardship is not self-imposed. He noted two recent North Carolina court
cases: (Turik v. Town of Surf City and Stealth Properties v. Town of Pinebluff Board of Adjustment), where the Court of Appeals found that a hardship was not self-imposed when the respective
property owners had built structures in the wrong place, one in reliance on a faulty land survey and the other in reliance on inspection department errors (not recognizing setback discrepancies).
Mr. Still said unless and until the Supreme Court overturns these cases, they may have set precedents that are to this case--where the owner relied on their contractor, who made errors,
and where the Inspection Department did not pick up on those errors until after the building was essentially completed. Mr. Furman called for those to speak on granting the variance
request to come forward to be sworn or affirmed for testimony. Mr. Furman swore in Mr. John McGuire. Mr. McGuire stated they decided to cover and screen their deck for protection from
the sun, which causes skin lesions, and to protect his wife who is allergic to bees. Mr. McGuire then proceeded to read the following which he referred to as his Summary and Ancillary
statement: John and Andrea McGuire 5227 Masonboro Harbour Drive Wilmington, NC Dear Ladies and Gentlemen of the Board of Adjustment: Ouite simply for protection, my wife and I decided
to cover and screen an existing deck that came with our home. Previous attempts to adequately protect ourselves from sun and bees have been unsuccessful. We are subject to skin lesions
from the sun and my wife is allergic to bees. A most recent last minute, previously unrecognized setback issue surfaced at the county zoning department. Our first assumed relatively
simple and inexpensive project may end as a costly nightmare without a variance. I am requesting a variance largely on the merits of specific findings of fact found elsewhere in my presentation.
However, it is noteworthy that without the granting of a variance, the opportunity to secure a reasonable return on the three items below, as well as items elsewhere, will be impossible.
(Loss #1) A prior contractor started this project. After pre-review with county zoning he believed there would be no problem attaining a permit. Leaving for Texas for the birth of my
first grandchild, we unfortunately advanced several thousand to the contractor. Four days later he committed suicide and we are unable to make any recovery. (Loss unmentionable) (Loss
#2) a second contractor did much pre-review at the county and was told that it appeared that a permit should be granted without a problem in a few days. Hearing this, my wife and I took
3 timely advantage of clearance sales in nice outdoor furnishings best suited for a covered space. These items are mostly not-returnable, will not fit a reconfigured deck, should be
under cover and we have no alternate space available. (Loss over $2,000) (Loss #3) Our property has been recently reclassified by CAMA. A small part of our property is now considered
in the flood zone. As a result the county required a new survey be completed prior
variance request is $350. (Combined Loss $850) Mr. McGuire then directed the Board to his submitted finding
of fact, Exhibit A, item # 3. He read:
This conclusion is based on the following FINDINGS OF FACT: He referenced Affidavit A which he said was drafted by the original homeowner: I, Robert
Girolami of 5012 Coronado Drive, Wilmington, NC am the original owner/builder of the home in question at 5227 Masonboro Harbour Drive. The original design and plan of the home including
the front and rear desks and porches were all one and built as such. A rear deck was built extending approximately 13 feet off the most rear of the home by approximately 18 feet wide.
A survey of the property was completed for me in February 1997. All permits were issued by New Hanover County and to my knowledge all inspections were completed and all materials recorded
at the New Hanover County offices and a valid Certificate of Occupancy was issued. At no time was I aware of nor did any county official indicate there was any problem with a setback
Mr. McGuire then referred to Exhibit B, which he said shows their property and the surrounding neighbors. He said Exhibit C is a survey of the property. Mr. McGuire said Exhibit D is
an enlargement of their property, which shows (#1) there is a 12' 6" x 17' 2" deck effective usable space, (#2) there is a 17 ft setback and 20 ft setback is required, and (#3) useable
space. Mr. Jones asked Mr. McGuire how far from the water was he located. Mr. McGuire said they are 3 lots from the water. Mr. Weldon asked the footage from the back of the existing
deck to the property line. Mr. McGuire said 17 feet. Mr. Jones asked Mr. McGuire if he intended to screen the deck in or use glass. Mr. McGuire said he will screen it. Mr. Weldon asked
Mr. McGuire the roof design and how tall it would be. Mr. McGuire said a hip (four-sided) and he does not know how tall it would be. Mr. DeVita asked how long they have owned the property
and Mr. McGuire said they purchased the property in 2004.
4 Mr. Jones asked if the Flood Plain was involved in this issue. Mr. McGuire said the property was not in a Flood Plain when they purchased it but since the redrawing of the flood lines
last year a small corner in the front of the property is in a flood zone. He said the deck is nowhere near that flood area. Mr. DeVita said there is also a 15-foot drainage easement
behind the house and a permanent structure is not allowed in that area. Mr. McGuire said he can build up to the drainage easement but cannot build in the easement. Mr. DeVita asked what
size accessory building could go in that area. Mr. Still said in order to meet the 5-foot setback requirement the accessory building needs to be under 600 sq. ft. and you would also
have to consider the 15-foot drainage easement. The Chairman called for those in opposition to granting the variance request to come forward. He swore in Ms. Cathy Murrell. Ms. Murrell
stated she received the ZBA notice today about her neighbors request to put an addition onto their house. Ms. Murrell said she has not had time to prepare anything, but she would like
to express her opposition to the variance request. She said she owns the house next door to Mr. McGuire and her house is presently on the market to be sold. She said to allow this project
would have a negative effect on her property by blocking the view which would result in lowering the value of her house. Mr. DeVita asked Ms. Murrell if it would hinder her view if Mr.
McGuire built a 10 ft screened-in porch on top of his existing deck. Ms. Murrrell said it would absolutely hinder her view. She explained that her view is directly off the back of her
porch which looks over his and out across the common area. Mr. Eckel asked Ms. Murrell if she was aware that Mr. McGuire is legally allowed to build to 10 ft. Ms. Murrell said she is
aware of that and Mr. McGuire understands how important the views are because in the past he solicited her help to convince another neighbor to remove some of their trees that was impeding
his view. view. She said her house is large and sits about 500 ft from the marina and it has been difficult because she was told that a smaller house could be purchased on the waterway
for less than her big house. Mr. DeVita emphasized that the Board does not have jurisdiction over him taking 3 feet of the deck and building a screened-in porch on what is left of his
deck. Mr. DeVita said he understands about the view but Mr. McGuire is allowed to build a 10 ft structure and the Board will rule on the other 2 feet. Mr. McGuire asked if he could respond
to Ms. Murrell statement and the Chairman allowed it. Mr. McGuire said when he moved there the Murrells told him that the aspect of a view was of no significance to them because
they did not like the ocean and are afraid of hurricanes. He said it makes a difference now because they are trying to sell their home. He said when he moved there the
5 view was limited behind her home and his home, so he asked the prior owner if he could do some trimming and pruning to improve the view but the prior owner was not receptive to that
request. He said the current owner, Mr. Stokely, had no problem with him keeping the area trimmed and he has continued to do that. Mr. Furman said the issue comes down to whether the
proper criteria are met to grant the variance request. He said detailing does not affect the issue. Board Deliberation: Mr. Furman asked Mr. Still if Mr. McGuire is prohibited from putting
up an awning with drop-down curtains on either side. Mr. Still said as long as it is within the setback, it is allowed. Mr. DeVita asked if the appellant could put a permanent awning
out to the 18 ft structure with an aluminum pole and enclose it with screens without needing a variance. Mr. Still said it could be placed only to the 20 ft setback. Mr. Weldon asked
if he could keep the existing base of the deck and put the roof and screening inside at the 20 ft line and let the remaining 3 ft hang as a walkway. Mr. Still said the hearing is to
see if the existing deck presently in the setback area could remain there and be enclosed or would it have to be removed. Mr. Jones asked if the Board could say anything about the enclosure
and Mr. Weldon said no, the Board could only deal with the existing conditions. Mr. DeVita said there is not anything the Board can do about the existing structure but there is something
the Board can do about not allowing that structure to continue to increase into the setback. He said if the Board allows the 3 ft structure to remain, and grant the variance for that
3 ft structure he could then build a roof and screen that entire structure in; if the Board rules that the structure needs to be removed from the setback, he has to take the 3 ft out,
redo some footings and meet the setbacks. Ms. Huffman said if the Board grants the variance, Mr. McGuire will be able to do whatever he wishes with that entire 13 ft of deck; if the
Board does not grant the variance, would there be any enforcement of the removal of the 3 ft. Board Decision: 1. John and Andrea McGuire, 5227 Masonboro Harbour Drive, are requesting
a variance from the rear yard setback requirements of New Hanover County Zoning Ordinance, Section 52.5 (2) to enclose an existing deck. Property is zoned R-15. Case No. ZBA-812. 2.
On a motion by Mr. Eckel and seconded by Mr. Weldon, the Board voted to GRANT the variance based on the findings of fact. (4 ayes, 1 oppose) Ms. Huffman informed Ms. Murrell that there
are appeal procedures available to her and advised her to seek the advice of an attorney.
6 Board Business Mr. Furman asked Mr. Still why it took so long for Ms. Murrell to get the ZBA Notice. Mr. Still said the letters went out on time because he received calls last week
from other adjacent neighbors but Ms. Murrell has her property on the market and does not live at the address, and she said she just picked up her mail today. There being no further
business before the Board, it was properly moved by Mr. Jones and seconded by Mr. DeVita to adjourn the meeting. All ayes Executive Secretary Chairman