ZBA 5-09
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 May 26, 2009. Members Present Members Absent Michael S. Jones, Chairman Robert Cameron, Jr.
Eric Hickman Peyton Williams Noelle Winstead Tim Fuller, Alternate 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. 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 �
�days in which to appeal any decision made by the Board to Superior Court. It was properly moved by Ms. Winstead and seconded by Mr. Hickman to
accept the minutes from the March 24, 2009 meeting. All ayes. THE FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS: Christian A. and Debra Z. Bolz, 6005 Carolina Beach Road, are requesting
a variance from the maximum size restrictions of New Hanover County Zoning Ordinance Section 59.1-4 (1) to erect a 40 sq. ft. monument sign for a veterinary facility. The property is
zoned O & I. Case No. ZBA-839. Mr. Jones swore in County staff Mr. J. Steven Still. Mr. Jones called Mr. Still to give an overview of the case. Mr. Still stated Christian and Debra Bolz
are the owners of the Myrtle Grove Animal Hospital, which is currently under construction. Mr. Still said the applicants are requesting a variance from the maximum square footage allowed
by Zoning Ordinance Section 59.1-4 (1) but this section limits the maximum square footage of signage in property zoned Office and Institutional (O&I) to twelve square feet in surface
area. Mr. Still sated in August of 2008 Mr. and Mrs. Bolz requested a conditional use rezoning to O&I to construct a veterinary facility. He said during construction of the facility
they discovered that they would not be allowed to construct a sign with the desired square footage because parcels that are zoned Office and Institutional are held to more restrictive
sign regulations than other commercial districts. Mr. Still said within the O&I zoning district, businesses are allowed one
2 advertising sign limited to twelve square feet in sign area. Mr. Still said since the facility is located on a road classified as Urban Principle Arterial and carries a 45-55 mile
per hour speed limit, the applicants are concerned that a sign limited to twelve square feet would not give them the desired visibility. He said since this parcel is located on Carolina
Beach Road, Zoning Ordinance section 94-4: (1) (c) further restricts any signs located on this road to six feet in height. He said the applicants �
�the success to and growth
of their business. Mr. Still said the applicants have submitted proposed findings of fact to support their case along with elevations prepared by their contractor, Mr. Clark Wilson.
Mr. Still said he has not received any correspondence in opposition to the variance nor has he received any in support of this variance request. Mr. Jones asked if there was a specific
date that the signs in B-2 have to be reduced. Mr. Still said all the legal non-conforming signs on Carolina Beach Road that were placed prior to the ordinance change, will need to be
brought into compliance per the amortization table, by a predefined in section 97-4 of the New Hanover County Zoning Ordinance. Mr. Still said some signs can be permitted if changing
the face and would not have to be brought into compliance; also if doing other type of maintenance they may be able to bring it further into compliance without having to fully comply
with the 6 ft height restriction until the amortization table is in effect. Mr. Jones asked about the square footage. Mr. Still said square footage for the zoning classification of B-2
zone allows for 150 sq. ft. with a maximum height of 25 ft. Mr. Still said that the property in question is zoned O&I which only allows 12sq. ft. and that also Carolina Beach Road is
different because all signs along that corridor have to adhere to the 6 ft height restriction. Mr. Jones asked if the amortization was only for the height and Mr. Still said yes. Mr.
Jones called for those to speak in favor of granting the variance request to come forward to be sworn or affirmed. The Chairman swore in Mr. Clark Wilson and Mr. Christian Bolz. Mr.
Bolz stated that he and his wife selected this location for their veterinarian clinic and they want a larger sign because with the speed limit on Carolina Beach Road being 55 mph, they
need the sign to be more visible. He said they just found out a few weeks ago about the sign limitation on Carolina Beach Road. He said the sign would be tasteful and in compliance with
the other signs. Mr. Bolz then presented a picture of the proposed sign to the Board. Mr. DeVita asked how long he has been in business. Mr. Bolz said he has been a veterinarian for
11 yrs and worked in the emergency clinic for 2-1/2 years. Mr. Clark said they gave careful consideration to the design of the sign so that it would be compatible with the over-all look
of the building. He said the sign would be tasteful and not an eyesore. Mr. Clark said the setbacks requirement on Carolina Beach Road are severe and affects visibility. He also said
a 4 ft sign would serve very little purpose and that there are much taller signs in that area. Ms. Winstead asked the reason for rezoning the property to O&I.
3 Mr. Bolz said the landowner was concerned about the possibility of strip malls being built there so they rezoned because there is limited usage under O&I. Mr. Fuller asked if they
investigated into the sign restrictions. Mr. Bolz said no; it was an oversight. Mr. Fuller asked the applicant to point out on the site plan where the sign would be located. The applicant
and the Board then discussed the site plan. Following discussion, Mr. Fuller asked if the sign ordinance dictates where signs should be placed. Mr. Still said the setbacks are from the
right-of-way and they are well outside of the site triangle. Mr. DeVita asked if it was shown on the scope from Withers and Ravenel where the sign should be placed and the size of the
sign they could erect. Mr. Bolz said no. Mr. Jones asked how many other lots were zoned O&I in that area. Mr. Still said that lot would be the only one zoned O&I in the area. He said
the surrounding area is zoned R-15 except across the street which is B-2. Mr. Still added that if the use ever changes from being a veterinary clinic the zoning defaults back to R-15.
Mr. Hickman asked if there was an option in the Conditional Use Rezoning to put signage on the building. Mr. Still said that there was nothing in the rezoning request that reflected
that. Mr. Jones called for those to speak in opposition to granting the variance request to come forward to be sworn or affirmed. He swore in Mrs. Donna Giradot. Mrs. Giradot stated
she lives down from the property and years ago there was a concern that the Monkey Junction area would become more commercialized due to increased development and larger signs. Mrs.
Giradot said she and some concerned homeowners met with Dexter Hayes who suggested assigning a Conservation Overlay District to limit the tall signs. She said variances are for hardships
and it is not a hardship because they were not aware of the sign ordinance. Mrs. Giradot said the property is directly on the road and she had no problem seeing their sign while driving
at 55 mph. She then presented a picture of the property to the Board and said granting this variance would set a precedent and possibly create a domino effect. Mrs. Giradot asked the
Board not to grant this variance and continue to hold the line against these large signs. Mr. Fuller said the sign ordinance for the Overlay District would permit a 40 sq. ft sign in
the O&I zone. He said the Overlay only affects the height of the sign and the O&I part affects the square footage.
4 Mrs. Giradot said if you move the precedent for one zoning category you might as well take the Overlay District off and change it. Mr. Clark said the temporary sign is inside the right-of-way
but the permanent sign would be further in and would not look like the temporary sign. He added that the veterinary hospital would be a benefit and without a decent sign they would not
be able to operate their business. PUBLIC HEARING CLOSED Board Discussion Mr. Jones said the reason they went with the O&I instead of B-2 was to prevent them from getting into the
Overlay District. He said the building looks very nice and it appears they tried to keep with the intent of the Ordinance. Mr. DeVita said the Board needs to consider the fact that the
hardship was created by the applicant and Withers & Ravenel should have informed the appellant about the sign ordinance. Mr. DeVita said the Board should respect what Dexter Hayes and
the County Commissioners did and deny this variance request. Mr. Hickman said he agrees. He He said the building is beautiful and fits in nicely but the Board should hold the line and
adhere to the Overlay restrictions. Ms. Winstead said she also agrees that it was an oversight and feels it is somewhat of a hardship. Mr. Fuller said the appellant along with cooperation
from County staff chose O&I as the best alternative for the neighborhood but is now caught in a dilemma with the sign restrictions. Mr. DeVita said they were denied a zoning change because
of neighbor problems. He said it was allowed because of the conditional use and if they had asked for B-2 it would never have been allowed. Mr. Jones asked Mr. Still if Zoning was helping
the appellant. Mr. Still said that County Planning staff assists the appellant in property rezoning and the appellant would have conferred with them. Board Decision: 1. Christian A.
and Debra Z. Bolz, 6005 Carolina Beach Road, are requesting a variance from the maximum size restrictions of New Hanover County Zoning Ordinance Section 59.1-4 (1) to erect a 40 sq.
ft. monument sign for a veterinary facility. The property is zoned O&I. Case No. ZBA-839. 2. On a motion by Mr. DeVita and seconded by Mr. Hickman the Board voted to DENY the variance
request based on the findings of fact. (3 ayes; 2 nays (Mr. Fuller and Ms. Winstead) THE SECOND AND LAST CASE BEFORE THE BOARD WAS AS FOLLOWS: Carly Gravely, 1702 Kerr Avenue North,
is requesting a variance from the 20 foot side setback and 30 foot rear setback requirements of New Hanover County Zoning Ordinance, Section 59.2-4 to construct a detached garage. Property
is zoned AR. Case No. ZBA-840.
5 Mr. Jones called Mr. Still to give an overview of the case. Mr. Still stated Carly Gravely is the owner of property located at 1702 Kerr Avenue North and when she purchased the property
in March of 2009 there was an existing legal non-conforming detached garage in respects to side setbacks. Mr. Still said the garage was constructed around 1955 which is before this area
of the county was zoned and side setbacks were not a requirement. He said the detached garage is approximately 650 square foot and it encroached approximately 14.5 feet into the current
regulations setback requirement of 20 feet. He said after Mrs. Gravely purchased the property she demoed the old garage, and began reconstruction of a new detached garage approximately
1,000 square feet within the same proximity. Mr. Still stated the new structure currently encroaches approximately 11.5 feet into the current side setback of 20 feet which is a reduction
of encroachment by approximately 3 feet and it also encroaches into the rear setback 5 feet of the required 30 feet. Mr. Still said Section 44-7 of our ordinance allows rebuilding, renovating
or expanding a legal non-conforming structure but the structure has to be placed in the same footprint. He said the applicant is requesting a variance to allow the structure to remain
in place as built and the applicant has submitted proposed findings of fact in support of the variance criteria. Mr. Still said he has not received any correspondences in support of
the variance or any against granting the variance request. He said all interested parties have been notified, as per the list of neighboring property owners provided by the applicant.
Mr. DeVita asked if a building permit was obtained. Mr. Still said a building permit was not obtained. He further stated that that the building is dried-in but not completely constructed
and on a slab. Mr. Fuller asked if the slab encroaches. Mr. Still said the ordinance allows for slabs to be in the setback. Mr. Jones called for those to speak in favor of granting the
the variance request to come forward to be sworn or affirmed The Chairman swore in Carly Brooke Gravely. Ms. Gravely stated she is the owner and this is her first home purchase. Ms.
Gravely said her father is a contractor in Virginia and built the garage for her as a gift. She said they compared where the old building was to where they wanted to place the new building,
and the setback was at least 5-10 ft from the edge of the property. She said her neighborhood consists of mainly trailers and small rundown homes, and this project would make the area
look nicer. Ms. Gravely said she tried to purchase more property from her neighbor but the neighbor did not want to sell a portion of the property; she wanted to sell the entire lot
as a whole. Ms. Gravely then presented pictures to the Board and proceeded to explain each picture to the Board. Mr. Jones asked if she plans to have power and plumbing in the garage.
Ms. Gravely said she has not decided yet to have power and there is not any plumbing. Ms. Gravely also said she plans to use half of the building for an art studio. Mr. Jones called
for those to speak in opposition to granting the variance request to come forward to be sworn for testimony.
6 There was no one present to speak on denying the variance request. PUBLIC HEARING CLOSED Board Discussion Mr. DeVita said the hardship was not created by the applicant and it would
be a tremendous financial hardship to move the building. Mr. DeVita said he would vote to grant the variance request. Mr. Jones asked Mr. Still if he had received any correspondence
in opposition from any of the neighbors. Mr. Still said he did not receive notification from any of the adjacent neighbors in favor of or against the variance request. Ms. Winstead said
the 5 feet was the part of it that does not conform and the side setback would be allowed because the encroachment at the rear was reduced. Mr. Still said the issue is the amount of
encroachment because it is a legal non-conformity. Mr. DeVita said it would not set a precedent and it would be a financial hardship to have to take the building down. Mr. Fuller referred
back to the previous case where, he said, they made plans, got permits and even went through getting the lot rezoned, but this is a case of someone not getting a building permit. He
said the Board is supposed to go by the findings of fact and if the variance is denied, would it preclude the benefit of using the property. Mr. Fuller added that the applicant could
shorten the building to get out of the rear setback. Mr. Jones said you have to take two things into consideration; (1) there is no one here in opposition to the variance, and (2) the
area. �
�He said if the neighbors come in and gives factual testimony that this would affect public safety and welfare or it is not in harmony with the area, the Board has to take
that into account but if the neighbors come in and oppose the variance because they just dothen that is not a reason. Ms. Winstead asked
how a building permit could have been issued. Mr. Still said the building permit was not issued. He said when the building inspector caught it he told Ms. Gravely that she needed to
get a permit for the building and the discrepancy was discovered when she submitted her site plan along with the permit application. Mr. Fuller said the findings need to be altered.
He said for example, in #1 of the findings of fact it asks if they can or cannot secure a reasonable return from or make reasonable use of the property, and the
was that the old building was sitting closer to the property line. Mr. Fuller said a more accurate response would be that the old garage had to be demolished because it was unusable
and the replacement building was constructed to obtain reasonable use of the property. Mr. DeVita said with #2 the unique circumstances are that the father/contractor began construction
without acquiring a building permit and providing a site plan.
7 Mr. Hickman said it needs to also state that it was built in the setback. Board Decision: 1. Carly Gravely, 1702 Kerr Avenue North, is requesting a variance from the 20 foot side setback
and 30 foot rear setback requirements of New Hanover County Zoning Ordinance, Section 59.2-4 to construct a detached garage. Property is zoned AR. Case No. ZBA-840. 2. On a motion by
Mr. Fuller and seconded by Mr. DeVita to GRANT the variance request based on the findings of fact with #1 and #2 rewritten. All ayes There being no further business before the Board,
it was properly moved by Mr. DeVita and seconded by Mr. Hickman to adjourn the meeting. All ayes. Acting Executive Secretary Chairman