ZBA 2-09
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
Complex, 230 Government Center Drive, in the Lucie Harrell Meeting Room, Wilmington, NC, on February 24, 2009. Members Present Members Absent Michael S. Jones, Chairman Tim Fuller, Alternate
Robert Cameron, Jr., Vice-Chairman Peter DeVita, Alternate Eric Hickman Michael McCulley, Alternate Peyton Williams Noelle Winstead Ex Officio Members Present Sharon Huffman, Assistant
County Attorney Ann S. Hines, Executive Secretary Linda E. Painter, Zoning Enforcement Official Hattie Moore, Clerk The meeting was called to order by the Chairman, Mr. Michael S. Jones
Mr. Jones 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. He said the Board also hears appeals of the �
�y days in which to appeal any decision made by the Board to Superior
Court. It was properly moved by Mr. Williams and seconded by Mr. Cameron to accept the minutes from the December 16, 2008 meeting with the necessary correction. All ayes. THE FIRST AND
ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: Joseph Owens, 6601 Old Bridge Site Road, Castle Hayne, is requesting a variance from the minimal lot size requirement of New Hanover County
Zoning Ordinance, Section 59.5-2 in order to subdivide the tract. Property is zoned RA. Case No. ZBA-837 Mr. Jones swore in County staff Ms. Ann S. Hines and Ms. Linda E. Painter. Mr.
Jones called for those to speak in favor of granting the variance request to come forward to be sworn or affirmed for testimony. The Chairman swore in Mr. Joseph Owens and Mr. William
Owens. Mr. Jones called Ms. Painter to give an overview of the case. Ms. Painter stated Mr. Owens is requesting a variance from the minimum lot size requirement of Section 59.5-2 of
the New Hanover County Zoning Ordinance in order to create two lots which will allow for the construction of a second dwelling. Ms. Painter said the applicant states that the inherited
2 property is 52,219 square feet with an existing dwelling, and that they are unable to subdivide and meet the 30,000 square feet required per residence. She said the applicant also
stated that there are other tracts in the area that do not meet the minimum lot size requirements. Ms. Painter said Mr. Owens offers two different options for his proposed subdivision;
(1) Split the original lot into two equally sized lots or (2) Create one conforming lot (30,011 sq ft) and one nonconforming lot (22,208 sq ft). Ms. Painter noted that the County Commissioners
are the only body that has the power to re-zone lots, or permit high density development with a special use permit and high density is not permitted by special use in the RA-Rural Agricultural
zoned district. Mr. Jones asked if there was anything existing on record that shows other non-conforming lots in the area. Ms. Hines said this area was the last one in the County that
was zoned back in 1985 and there are several nonconforming uses and lot sizes in that that area. Mr. Williams asked if this would set precedence. Ms. Hines said it is a difference between
something existing before zoning took place that has created the present situation. The Chairman called the appellant to speak. Mr. William Owens stated that he is the heir to the property
and due to his health issues his son, Joseph Owens will represent him in this case. Mr. Joseph Owens stated he wants to subdivide the property in order to build a single family home
for his family. Mr. Owens then presented additional information to the Board in support of his case, which he said contained a list of nonconforming lots within a half-mile of their
property, adjacent owners who support his case, and maps. He said tract 2 is owned by his father and mother and tract 3 is inherited property to be equally divided between his father
had his aunt. Mr. Owens said option A would be better suited for them to put a house on because it will be 30,000 sq. ft. and once the property is surveyed they could add tract 2. Mr.
Jones asked if tract 2 was included in the 52,219 sq. ft. and if it was a combination of tract 2 and tract 3. Mr. Owens said yes. Mr. Williams asked Mr. Owens if he will be purchasing
tract 2. Mr. Owens said yes. Mr. Jones asked if the Board was only considering one option and if it is up to the Board to decide which tract to consider. Ms. Huffman said her guess is
that the appellant would accept whichever option the Board feels is less onerous and that could be decided during discussion. Ms. Huffman asked the appellant what was presently on tract
2 and 3. Mr. Owens said tract 3 is in the back corner of the lot and there are only woods on tract 2 which is owned by his father and mother. He said the existing dwelling is owned by
his aunt.
3 Mr. Hickman asked how tract 3 would be divided. Mr. Owens said it would not be equally separated and tract 2 would be added afterwards. Ms. Winstead asked if two tracts are asked to
be subdivided. Mr. Owens said the tax records show two tracts with two addresses. Mr. Cameron questioned the access to each property. Mr. Owens said they would share a driveway. Mr.
Jones called for those to speak in opposition to granting the variance request to come forward. �
� stated the RA zoning district was created in 1985 to protect low density and keep the rural character. He said the Zoning Ordinance states that
the principal use of land is for low density single family residential purposes. the following from Zoning Ordinance, Section 59.5-2: The regulations
of this district encourages rural farming activities and the preservation of open space space and permitting development compatible with the preservation of its rural character and providing
limited growth. said the Planning staff just recently completed a plan for the Castle Hayne community and that plan was adopted by the County Commissioners in
Dec 2008. He said the community expressed that they wanted to preserve the rural character of the area and although Mr. Owens land is outside of that or,
they feel that this request is not consistent with the purpose of the district. Mr. Sam Burgess stated their concern is that the request is for a large portion of property and granting
a variance for this size would set precedence. Mr. Burgess also said the intent of the Ordinance is to maintain the pastoral setting that has existed in Castle Hayne for many years.
Mr. Jones asked how a rebuild on some of the existing tracts would be handled. Mr. Burgess said there is a provision in the Zoning Ordinance that those lots existing prior to zoning
in 1985 could be built on provided the setbacks requirements are met. He added that subdividing the lot could create a nonconforming situation. Mr. Williams asked which would be the
better option; subdividing 22,000 sq. ft on one tract or 30,000 sq, ft. on the other one. Mr. Burgess said it would be better if they could acquire additional square footage from the
landowner to the south in order for them to meet the requirements. Ms. Winstead asked if there was something in place that would prevent them from building on the lot. Mr. Burgess said
they would need 30,000 sq. ft for each principal dwelling. Mr. Cameron asked if the estate was closed. Mr. Owens said his grandmother passed without a will. Mr. William Owens added that
the property is presently in probate.
4 Mr. Cameron said it might be premature due to these two tracts having different owners and it is all premised on the fact that all owners are in agreement with this plan. Mr. Jones
asked if the Board could grant a variance on a piece of property that legally does not exist yet. He also said Mr. Owens does not need a variance to join the two properties because legally
the property does not exist. Ms. Huffman said the variance could be conditioned on the combination but nothing has been presented from the owner of the property agreeing to this plan.
She asked if the aunt was notified as an adjoining property owner or if she is a part of this request. Mr. Owens said his aunt is aware and he has shown her the plans. He also said that
she is in agreement with their plans. Mr. Cameron asked when the grandmother passed and Mr. William Owens said in 2000. Ms. Winstead asked the square footage of tract 2 and Mr. Joseph
Owens said at least 5,000 sq. ft. Mr. Jones suggested continuing this case to either the March 24 or April 28 meeting so that the appellant could get the needed paperwork from his aunt
and mother, and also to look into trying to get the two tracts combined. Mr. Owens said the tract is too small to sell and combining it is the only alternative. Ms. Hines said the paperwork
was signed as the . Mr. Owens asked what would be their next option if they cannot purchase enough property from the owner to the
south of tract 2. Castle Hayne plan speaks about property west of Sycamore and there is nothing specifically said about this property. He said
Mr. Owens could request to rezone the property but he would need the participation of his neighbors to do that and typically spot rezoning is not approved. Ms. Winstead asked if the
use of that tract to the south would prevent them from selling a piece of it. Ms. Hines said it is a nonconforming mobile home park and she thinks it would be a bad idea to cut off a
portion of of that property. Mr. William Owens reminded the Board that their property is east of Sycamore Road and is not part of the Castle Hayne plan. PUBLIC HEARING CLOSED Board
Discussion Mr. Jones said all the legal issues needs to be settled first and he would suggest continuing this case. Mr. Cameron said he agreed because the Board needs to have proper
signatures, and to allow all those with interest to know what is going on and be given the chance to speak. Ms. Winstead, Mr. Williams and Mr. Hickman all agreed that there are too many
issues and it is important to get binding signatures from the owners.
5 Board Decision: 1. Joseph Owens, 6601 Old Bridge Site Road, Castle Hayne, is requesting a variance from the minimal lot size requirement of New Hanover County Zoning Ordinance, Section
59.5-2 in order to subdivide the tract. Property is zoned RA. Case No. ZBA-837. 2. On a motion by Williams and seconded by Mr. Cameron the Board voted to CONTINUE this case to the March
24, 2009 meeting. There being no further business before the Board, it was properly moved by Mr. Williams and seconded by Mr. Cameron to adjourn the meeting. All ayes. Executive Secretary
Chairman