ZBA 1-08
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 January 22, 2008. Members Present Members Absent Michael Lee, Chairman Tim Fuller, Alternate Michael
S. Jones, Vice-Chairman Carmen Gintoli, Alternate Dan Weldon Pete DeVita, Alternate Robert Cameron, Jr. Peyton Williams Ex Officio Members Present Sharon Huffman, Assistant County Attorney
Andrew Olsen, Attorney Ann S. Hines, Executive Secretary J. Steven Still, Acting Executive Secretary Hattie Moore, Clerk The meeting was called to order by the Chairman, Mr. Michael
Lee. Mr. Lee 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
interpretation 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. Jones and seconded by Mr. Weldon to accept the minutes of the December 18, 2007 meeting. THE FIRST AND ONLY CASE BEFROE THE BOARD WAS AS FOLLOWS: Carolina Marina
& Yacht Club, LLC, 1512 Burnett Road has appealed a determination of the Planning Director denying a request for administrative approval to use boat cradles, stands or portable boat
racks at a commercial marina. Property is zoned R-15. Case No. ZBA-814 (Continued from the November 27, 2007 meeting) The Chairman swore in County staff, Ms. Ann S. Hines. Mr. Lee called
Ms. Hines to give an overview of the case. Ms. Hines stated the Board members and attorneys representing the parties in interest have been handed a letter dated November 19, 2007 and
this case is continued from that meeting. Ms. Hines stated this appeal, case number ZBA-814, is a companion case to another appeal under file number ZBA-813, which has since been withdrawn.
Ms. Hines stated Carolina Marina, LLC is the owner of the property at 1512 Burnett Road and one of the principals of that corporation is Tim Ward, who is acting on behalf of the corporation.
She said this is an appeal from the determination of the Planning ied a request for an administrative change to an existing
special use
2 permit to use boat cradles, stands or 2-level portable boat racks at the marina. Ms. Hines said this is an old special use permit �
� from the County Commissioners in 1971. She said Mr. Homer Ward had already established to some extent, a commercial marina on the property
and sought to get the property placed under the umbrella of a special use permit in order to enlarge and continue the operation. Ms. Hines said there have been a number of cases before
this Board covering various aspects of the legal standing of that marina and n the special use process. She said it is a quasi-judicial
process done by the County Commissioners in considering the criteria as to whether a special use can be approved or not. Ms. Hines said this process was followed in 1971 when Mr. Homer
Ward got his special use permit and in subsequent years there have been various applications made to the County in the attempt to modify this special use permit. She said in order to
make any improvements by modern day standards, a better site plan had to be produced with engineering components. Ms. Hines stated County staff has discretionary powers to approve minor
changes in special use permits and she then referred to Section 71-1 (9) which is a provision in the Ordinance that allows for minor changes to avoid having to go back through the entire
pubic hearing process. She said one of the key things is it cannot be a change in the character of the development. She said an approved revised plan for this marina was submitted in
September 2005 and elements of that plan have been challenged and is pending an appeal in Superior Court from a previous Board of Adjustment case. Ms. Hines said Mr. Tim Ward came to
the County to get approval to have dry storage racks at this marina to complement the use of the forklift which had just been granted through a previous Board of Adjustment case. She
said County staff advised him that he needed to show these racks on a plan and the plan he submitted was essentially a duplicate of the approved plan with additional verbiage in two
places; the verbiage was forty dry storage slips utilizing two level racks. Ms. Hines said the plan was first submitted to the Planning Director, Chris after
reviewing dated October 3, 2007 stating that the impact exceeded the criteria for a minor modification.
She said that determination is the subject of this appeal tonight and .
Ms. Hines said what is being sought is something that is better addressed by the Board of County Commissioners through their quasi-judicial process of the special use permit. She also
pointed out that and twhich
calls into question whether it should be appealable to this Board. Mr. Lee called for those to speak to come forward to be sworn in or affirmed for testimony. He swore in: Mr. William
Raney, Attorney Mr. Kenneth Shanklin, Attorney Mr. Matthew Nichols, Attorney Mr. Tim Ward Mr. David Ward Mr.
Lee reminded the Board that even though some of the Board members present tonight have been on previous cases involving this marina, they can only take into consideration the evidence
presented tonight. He then asked if there should be a motion to dismiss this case if the Board should not hear it. Ms. Huffman said County staff does not feel that this case should be
heard by this Board. She said there is a route of appeal from the determination of the Planning Director through the Planning Board to the County Commissioners. Ms. Huffman said the
provision of our Zoning Ordinance that provides for the Board of Adjustment to hear appeals from the interpretation of the Zoning Ordinance does not contemplate the Board of Adjustment
interpreting special use permits and ruling on changes in special use permits.
3 Mr. Olsen suggested the Board hear counsels arguments as to whether the case should be heard or not and then make a decision. Mr. Lee agreed and called Mr. Shanklin to speak. Mr. Shanklin
said he and his partner Mr. Matthew Nichols are representing Carolina Marina and Yacht Club, LLC. He referred to Article VII-Provisions for Uses Allowed as Special Uses, Section 71-1
(9) of the Zoning Ordinance Mr. Shanklin said it
is a mandatory review by the Planning Director when the applicant proposes a minor change and after the Planning Director makes a recommendation it then goes to the Superintendent of
Inspections which is Ms. Hines. He said the issue is they have a right, as the applicant, to have a determination by this Board as to whether they have a right to advance their position
that they are entitled to a minor change and their request does not violate any of the criteria under Section 71-1 (9) subs (A), (B) or (C). Mr. Shanklin read from Section 122-1(1):
Powers and Duties-[To hear and decide appeals where it is alleged by the appellant that there]s error in any decision made by the Building Inspector or other administrative officials
in the carrying out or enforcement of any provision of the Ordinance. He said this involves what is being discussed today and it is his understanding that if there is an error in interpreting
the Ordinance, it comes to this Board. Mr. Shanklin reminded the Board that they won an appeal from this Board for the use of forklifts, which is equipment used at a marina and boat
cradles and boat racks are also equipment used at a marina. Mr. Lee asked if a determination has been made that it was not a minor change. Mr. Shanklin said
2007 because he did act on it and they are questioning that
action by him.
Ms. Hines said that is correct and it is stated in that letter. Ms. Hines said she never said whether she agreed with the decision or not. Mr. Tim Ward asked if he could address the
Board and Mr. Lee allowed it. Mr. Tim Ward stated this appeal relates to 8 months of trying to get a determination from the Zoning Enforcement Officer over the rights that they currently
have without having to go forward with the necessary steps to get an approval from the County Commissioners. He said they want the right to have the same determination in the same manner
that they got for the forklift. He said they are here because they have been unsuccessful in getting a determination from the Zoning Enforcement Officer of New Hanover County for the
use of portable racks, portable boat stands and cradles which are used in the County without any further approval. Mr. Olsen asked the Chairman if the Board should also hear from the
counsel for the neighbors. aking. The Chairman
called Mr. William Raney. Mr. Raney stated he has distributed a memorandum to the Board outlining what he understands is the issue and also what he feels is the appropriate resolution
of the issue. Mr. Raney said issue (1) is the recommendation of the Planning Director that a proposed amendment to the site plan for Special Use
4 Permit # 13 is not a minor change in location, size or structure appealable to the Zoning Board of Adjustment. Mr. Raney said their position is that this is not the kind of decision
that is appropriate for appeal to the Zoning Board of Adjustment. He said it is important to understand that by asking this Board to consider the amendment to the site plan, they are
in effect admitting that what they are proposing requires an amendment to the site plan. He said issue (2) is to determine how you get an amendment. Mr. Raney said there is a provision
in the Ordinance that says if it is a minor amendment it can be submitted to the Planning Director who makes a recommendation before the Superintendent of Inspections, Ann Hines makes
her own determination as to whether this is a minor change. Mr. Raney said this is not an appropriate proceeding for this Board because the Planning Director has discretion to make this
determination and he has elected to not make a favorable recommendation. He said the applicant can go through the normal due process that any special use permit requires which is a quasi-judicial
proceeding through the Planning Director and County Commissioners. He referenced to the case County of Lancaster, SC versus Mecklenburg Count, where the court said that type of authority
cannot be delegated to an administrative entity. Mr. Raney said he believes the applicant is trying to circumvent the process by taking out of context the provision in the County Ordinance
that allows administrative approval of amendments of a special use permit. He ended by asking the Board �
� Mr. Lee called for a response to Mr. Shanklin said if someone opposed an approval and want to appeal, his client should
also have the right to appeal, in due process. Ms. Hines said there is a difference between this appeal and previous appeals heard by this Board from �
�decision to approve the
plan. Ms. Hines said they did not have any other recourse but in this instance the more appropriate route is to the County Commissioners. Mr. Weldon asked if other applicants who had
been rejected by the Planning Director appealed to the Board of Adjustment. Ms. Huffman said in previous cases when people have asked for administrative changes when they have been told
their project is not a minor change, they have gone the route of filing for an amendment to a special use permit. Mr. Weldon asked what the outcome would be if the Planning Director
approved the change and Chief Inspector did not approve it. Mr. Olsen said if the Planning Director decided the change was fine and approved it and the Zoning Official does not approve
it, that Zoning Official would be required to provide a letter explaining their reason for not approving the change. Mr. Olsen said that would be a clear case to appeal the decision.
Mr. Cameron asked if the Board is bond by precedence and is the previous case something the Board needs to consider. Ms. Hines said staff would certainly offer some argument against
the notion that the forklift case was enough like this case to establish precedence because it is not. Mr. Cameron asked if �
�properly before the Board. Mr. Weldon said he does not think it is.
5 Mr. Lee read from Zoning Ordinance, Section 121: Filing and Notice of Appeal, (1) Appeals from the enforcement and interpretation of this Ordinance and appeals for variances may be
taken to the Board of Adjustment by any person aggrieved or by any office, department, board or bureau of the County affected. Mr. Lee said an appeal from the enforcement and interpretation
of this Ordinance is what is enforced and the applicant is saying that applying the facts of what they want to do against what is major or minor, as it stands in the Ordinance, that
the decision made by the Planning Director is wrong, as a matter of law. He said the Board needs to first address whether they should hear the appeal of whether it is major or minor
and the next issue is does it really matter if it is major or minor. Ms. Huffman said even if the Board determines it is appropriate for them to make the decision whether
if
the Board determines it is minor and it goes back to the Planning Director, it is still discretionary and if the Planning Director still disapproves it, it would not be appropriate to
come back to the Board to �
� route for this. The Chairman called for any others to speak. Mr. Tim Ward said he currently have pieces of the equipment on-site and if the Board does not hear
the appeal he will expand the use of that equipment; he will then be cited by Ms. Hines and will be back before this Board next month.
this Board Board instead of the route
that the Zoning Ordinance prescribes, which is to take it to the Planning Board and then the County Commissioners. He said it confuses the issue if the Board tries to decide whether
it is major or minor. said the question of precedence is important because if the Board decides that it is appealable to them then it is something that will come
back to the Board. He said the point of providing discretion to the Planning Director is to weed out instances where minor changes to a site plan would not have to go back through the
process. said the Ordinance is clear and gives guidelines on how that decision should be made. Mr. Olsen read from Zoning Ordinance Section 71-1(9) Minor changes
shall be reviewed by the Planning Department. He said for example, if the Planning Department refused to review this and this appeal came to the Board of Adjustment, it clearly says
you have to review it. Mr. Olsen said that is not the case here tonight. and upon favorable recommendation by the Planning Director may be
approved by the Superintendent of Inspections. Mr. Olsen said that does not say that the Planning Director has to prove it nor does it say it has to be approved by the Superintendent
of Inspections if the Planning Director does may a favorable recommendation. He said in addressing Mr. Sh
the other side can also appeal, hSuch an approval shall not be granted should the proposed revisions cause or contribute to... Mr. Olsen said the Ordinance goes
on to name specific things the Planning Director does not have the authority to approve or the Zoning Office, on his recommendation, would not have the authority to approve. He said
there is nothing in the Ordinance that says the Planning Director shall make a determination of whether it is minor or major and if the Planning Director does make a recommendation there
is nothing in the Ordinance that says the Superintendent of Inspections must approve it. Mr. Olsen said there are �
�son for that may be because there is another route. Mr. Jones said you can see both sides of the argument and normally when a case comes before the
Board it is a can or cannot do situation. He said when the Board says that someone cannot do this thing they have the ability to appeal to a court. Mr. Jones explained that he is not
saying you cannot do
6 this thing but rather you have to go through to a different route; a more public route. He said if they do set precedence that this can be argued in front of this Board then it will
open the door for future problems. Mr. Lee said he does not think that will happen because once it is decided whether the Board can hear major or minor the next question will keep anyone
from coming to this Board. Mr. Lee referred back as she stated,
minor and the Board should get to this issue first. Ms. Huffman said the question is if the Board have a right to review his ultimate decision
even if the Board determines that this is a minor change and send it back to him. She asked if the Board have a right to review what he does next. Ms. Huffman said the Board clearly
does not have the right to review a discretionary decision. Mr. Shanklin said it states in the General Statutes 153A that when this board sits as a Board of Adjustment they sit in the
place of the Planning Director and they can modify, change, annul, approve it or do whatever they want to do. He said once there is an appeal the Board has a very broad authority on
the general statutes. Mr. Lee asked what criteria the Board would use if, for example, they decided it was minor and then put themselves in place of the Planning Director. �
�discretion because as he interprets the statutes, the Board then becomes the Planning Director and makes the decision for him. Mr. Raney
said the standard in the ordinance defines what cannot be minor. He said they do not prescribe any other decisions that might make a change major. Mr. Raney said the ordinance keeps
the Planning Director from saying this is minor in certain circumstances and he can say it is major for any reason. Mr. Raney said that is the reason why the appropriate route is to
go to the County Commissioners. Mr. Shanklin said the first question is does the New Hanover County Board of Adjustment have the jurisdiction to entertain the appeal filed by Carolina
Marine and Yacht Club, LLC dated October 17, 2007 pursuant to the provisions of Section 122 of New Hanover County Ordinance and the second issue is does the New Hanover Board of Adjustment
have the authority to entertain an appeal regarding the discretion of the Planning Director pursuant to Section 71-1 (9). Mr. Raney said he would ask the Board to consider the first
issue more broadly than suggested by Mr. Shanklin because the grounds for the rejection of the appeal is based on the language in that section which relates to the discretion of the
Planning Director. Mr. Lee said the �
�He said if the Board goes to step 2 the Board does not have the right right to hear a discretionary decision on whether it is minor or major because a decision was made. He
said Ms. Huffman framed the issue in her motion to move to dismiss. He asked Ms. Huffman to repeat her motion. Ms. Huffman stated County staff would ask the
that the Board of Adjustment does not have the authority to determine the appropriateness of a discretionary decision
from the Planning Director.
7 Ms. Huffman added that the Board has jurisdiction to hear matters but the Board does not have the authority to stand in the place of the Planning Director and decide if his discretionary
rulings are correct or not. She said it does not matter if it is major or minor. Board Decision 1. Carolina Marina & Yacht Club, LLC, 1512 Burnett Road has appealed a determination of
the Planning Director denying a request for administrative approval to use boat cradles, stands or portable boat racks at a commercial marina. Property is zoned R-15. Case No. ZBA-814
(Continued from the November 27, 2007 meeting) 2. On a motion by Mr. Peyton and seconded by Mr. Jones the Board voted unanimously to APPROVE the County dismi
ss the appeal. There being no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Acting Executive Secretary Chairman