ZBA 8-09
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 August 25, 2009. Members Present Members Absent Michael S. Jones, Chairman Peter DeVita, Alternate
Robert Cameron, Jr., Vice-Chairman Tim Fuller, Alternate Eric Hickman Michael McCulley, Alternate Noelle Winstead 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 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 . Mr. Jones added that appellants have
thirty 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 May
26, 2009 meeting. All ayes THE FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS: Northside Baptist Church, 2501 North College Road, is requesting a variance from the maximum amount of signage
allowable under New Hanover County Zoning Ordinance Section 94-3 to erect an additional 18 square foot freestanding sign. Property is zoned R-15. Case No. ZBA-842 Mr. Jones swore in
County staff Ms. Ann S. Hines, Mr. J. Steven Still Mr. Jones called Mr. Still to give an overview of the case. Mr. Still stated Mr. Clyde
Holley, Operation Manager for Northside Baptist Church, is requesting a variance from the maximum amount of signage allowable for a nonresidential use in a residential district. Mr.
Still said currently Northside Baptist church allows a Chinese Christian church to occupy one of the buildings on site to conduct their church services. He said the Chinese Christian
church would like to advertise for their services however, Northside Baptist Church has used all of their allocated signage for their parcel. Mr. Still said New Hanover County Zoning
Ordinance, Section 94-3 �
�
2 frontage, not to exceed 35 feet in sign area, and one marquee sign not to exceed 25 feet in sign arMr. Still said since Northside Baptist church already occupies the allowable
amount of signage the Chinese Christian church is seeking a variance to construct additional signage. He said the sign plans submitted with the variance request represents a x �
�said Mr. Holley states that since the church property has approximately 993 feet of road frontage and
is adjacent to commercial zoning that the additional signage would be in harmony with the surrounding area. Mr. Still said the applicant has submitted proposed finding of fact in support
of the variance request and he did not receive any opposition to the sign, but did get some opposition to the configuration of the driveway. 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. Clyde Holley. Mr. Holley stated they provide community access to properties owned
by the church for no charge and also allow their buildings to be used by community organizations such as Laney High School, Murrayville Elementary School, the Highway Patrol and National
Guard. He said when the Chinese Christian Church needed a building to hold their services they allowed them to use one of their buildings. Mr. Holley said the Chinese Christian Church
wants to erect a sign to advertise their worship services, but he discovered that Northside is still zoned residential and have used all their allowable amount for signage. He said they
have 48 feet of road footage from the pavement to the property line and would not have any problem with placing a sign with a 5 ft setback. Mr. Holley said the sign would be constructed
of low maintenance aluminum type material, not lighted and almost identical to one of their existing signs. Mr. Cameron asked if the Chinese Christian church was leasing the building.
He also asked if the sign would be removed if the Chinese Christian church left. Mr. Holley said they do not have a lease agreement and the sign would be removed if the Chinese Christian
church left. Ms. Winstead asked Mr. Holley to point out on the map where the current signs are located on the lot. Mr. Holley pointed out the signs on the map and then entered into discussion
with Board. Mr. Jones called for those to speak in opposition to granting the variance request to come forward to be sworn or affirmed. There was no one present to speak in opposition
to granting the variance request. PUBLIC HEARING CLOSED Board Deliberation Mr. Cameron said if granted a provision should be placed on the variance that the sign has to be taken down
if the church leaves. Mr. Olsen said the Board could not place a stipulation on a church that is not here tonight, but the Board could place a stipulation on the church that is here,
if the only reason in granting it is a hardship for the other church involved.
3 Board Decision: 1. Northside Baptist Church, 2501 North College Road, is requesting a variance from the maximum amount of signage allowable under New Hanover County Zoning Ordinance
Section 94-3 to erect an additional 18 square foot freestanding sign. Property is zoned R-15. Case No. ZBA-842. 2. On a motion by Mr. Cameron and seconded by Mr. Williams the Board voted
unanimously to GRANT the variance with the stipulation that if the sign ceases to be used after 90 days for a third-party church, the sign has to be removed or the church would need
to apply for another variance. THE SECOND AND LAST CASE BEFORE THE BOARD WAS AS FOLLOWS: Mr. and Mrs. Craig A. Wenger, 278-280 Williams Road, have appealed the determination of the Chief
Zoning Enforcement Official that their property is located in a Conservation Overlay District. Property is zoned R-15 (Residential). Case No. ZBA-841 Mr. Jones called Ms. Hines to give
an overview of the case. Ms. Hines stated the Wenger property is located on Williams Road in the Myrtle Grove area and it was initially zoned R-15 (Residential) on April 7, 1971. She
said the zoning has not changed and the R-15 zoning carries a 15,000 sq. ft. minimum lot size. Ms. Hines began her slide presentation: Exhibit A-Map of �
� -Includes Lots 1 and 2, recorded on September 17, 1982. Ms. Hines stated the COD regulations took effect on December 1, 1984 and the lots recorded as of that date were afforded limited
grandfather rights, such as setback exemption for one single family home on a single lot would not have to meet the COD setbacks from the marsh. Exhibit B Copy of Official COD Map.
Ms. Hines said the Official COD Map is kept in the Planning Department and she asked
Map of Williams Road.
She pointed out the Wenger property, the various COD Districts, the salt marsh line and the open tidal waters. She said property classified as AUD (Anthropogenic Urban and Developed
land) encompasses a large portion of the county. Exhibit C Divides Lot 1 into Lots 1-A and 1-B. Ms. Hines said this division created 2 sub-standard lots 9,498.42 sq. ft. each. Ms.
Hines said this was done in 1988 after the adoption of zoning regulations which resulted in the lots not meeting the 15,000 sq. ft minimum lot requirement and therefore not buildable.
She also said since this was 4 yrs after the COD ordinance was adopted, they were no longer allowed the exemptions. Ms. Hines said notations on the map states Lot 1-A will be owned by
Charles A. Paul and combined with Lot 2 and Lot 1-B will be owned by Terry Cockman. She said Lots 1-A and 1-B remain in combined ownership with the two other respective properties and
the COD exemption for Lot 2 was no longer in effect. Exhibit D Deed to Craig and Elisabeth Wenger -Recorded in 1993 and the legal description describes Tract A as Lot 2 and Tract
B as Lot 1-A. Exhibit E Map of Recombination of Lots 1-A and 2-Recorded in 2000 and shows that Mr. Wenger re-divided the property and placed the common property line between Lot 2
and 1-A which resulted in Lot 1-A with 15,316 sq. ft. and Lot 2 with 17,311 sq ft. Exhibit F -Wetland Survey dated October 15, 2008. Ms. Hines said when Mr. Wenger had consultants map
his property to check the impact it was discovered by zoning staff that a conservation resource wrapped around on the west side of 1-A and cut into that lot. She said Mr. Wenger had
two flags on the property; Limits of Coastal Wetlands (CAMA) and the 404 Wetland (US Army Corps of
4 Engineers or Federal Wetland). Ms. Hines said they were going by the Coastal Wetland line to define the COD resource, which imposes a building setback of 75 ft and would consume most
of this lot. She said some of Lot 2 has some area of salt marsh conservation resource on it that does not show up on the COD map; that small area is shown as AUD along with the rest
of the lot, when in fact it is Salt Marsh COD resource. Exhibit G Documentation confirming the accuracy of the 404 wetland line by the US Army Corps of Engineers. Ms. Hines said the
use of field conditions to determine the COD setback is standard practice because the COD maps are on a scale of 1 inch = 400 ft and would not be accurate to a degree that it takes to
determine the setbacks on the ground. Ms. Hines said the official maps are maintained in the Planning Department and are modified as needed when field conditions justify it. She said
the COD was not addressed when Mr. Wenger divided the property, but was addressed when he had consultants to map it to see what the impact was on his property. Ms. Hines said the Board
has the legal authority under Section 32 of the Ordinance, to interpret the map boundaries when there is a significant difference with conditions on the ground from what is shown on
the maps. Mr. Cameron asked for an explanation of the 10% rule. Ms. Hines said if there is a difference between what is on the ground and what is on the map of no more than a 10% margin
of error, staff will usually discount it and go with what is least restrictive to the owner. She said more than 10% is a significant amount and has been handled in a number of cases
through the Board of Adjustment by a variance request. The Chairman called or those to speak in favor of granting the appeal to come forward for testimony. Mr. Jones swore in Mr. Matthew
Nichols and Mr. Craig Wenger. Mr. Nichols stated he is an attorney with Shanklin and Nichols Law firm and will be representing Mr. and Mrs. Wenger. Mr. Nichols stated he is not offering
testimony but a legal argument based on the Ordinance. He then distributed additional materials to the Board. He said the General Assembly granted counties power to zone under Tab 1-§
153A-340 (Grant of Power of the General Statutes of North Carolina) (a) For the purpose of promoting health, safety, morals, or the general welfare, a county may adopt zoning and development
regulation ordinances. Tab 2-§153A-342 (Districts; zoning less than entire jurisdiction) (a) A county may divide its territorial jurisdiction into districts of any number, shape, and
area that it may consider best suited to carry out the purposes of the[zoning ordinance]. Mr. Nichols stated the statute does not speak of how the county is divided into districts but
New Hanover County like every other county has an official zoning map. Tab 3-§153A-343 (Method of Procedure) (a) the board of commissioners shall, in accordance with the provisions of
this Article, provide for the manner in which zoning regulations and restrictions and the boundaries of zoning districts shall be determined, established, and enforced, and from time
to time amended, supplemented, or changed. Mr. Nichols said it is a requirement when changing the zoning map that notice is given, it is advertised, a hearing is held and the Commissioners
have to adopt the changes by majority vote. Tab 4-New Hanover County Ordinance. Mr. Nichols said Article III calls for the provision of an Official Zoning Map. He said there is only
one map which was adopted by the County Commissioners and that is what divides the county into zoni
Zoning Map into record. Tab 5-Article V: District Regulations-New Hanover County Zoning Ordinance. Mr. Nichols said this shows that the county was divided into
various districts and included in that is the Conservation Overlay District (COD). Mr. Nichols said nowhere on the Official Zoning Map is the COD delineated but the other zones are shown.
5 Tab 6Conservation Overlay District, Section 59.4-2 (Applicability) The development and improvement of property, including the division of land, shall be subject to these performance
controls if the parcel of record is located wholly or partially within a COD and if the conservation resources, as specified in Section 59.4-3, are associated with the parcel on record
as of December 1, 1984 the effective date of ordinance. Mr. Nichols said the Ordinance states that the first thing you must do is to see if the property is in a COD, and the only way
to determine that, is by looking at the official map. Mr. Nichols said none of those conservations and zoning maps are the Official Zoning Map but are maps that would go with the second
prong of that ordinance that says if there is a resource associated with this property. Tab 7-Article XI: Amendments. Mr. Nichols said the County could amend the map but they have to
have a hearing, give notice to the property owners, the County Commissioners have to vote and the change has to be shown on a map. He said this issue came up in the City involving the
former Babies Hospital site where a staff determination Mr. Nichols �
�material into the record and referred to the City of Wilmington
COD Ordinance Comparison-Former City of Wilmington LDC § 18-215 (Conservation Overlay District) Repealed March 24, 2009. Tab1. (b) Applicability -The development and improvement of property,
including the division of land, shall be subject to these performance controls if the parcel of record is located wholly or partially within a COD and if the conservation resources are
associated with the parcel. He said they made the argument before the City Zoning Board of Adjustment that the City Zoning Map did not show the property being in the COD. Tab 2-Order
Reversing Wilmington Board of Adjustment entered by Honorable Judge Nobles, Jr. Paragraph 15 -
applicability of the COD is set forth in subsection (b) of that ordinance, which provides in relevant Paragraph 16-The applicability
of the COD ordinance is a two-prong test, and both prongs must be or
partially within a COD[.] LDC §18-215.
as of February 2, 1999-215(b). Paragraph 23 The City of Wilmington has adopted LDC §18-165, which provides that the boundaries of the zoning
districts established in the LDC are shown on the series of Official City Mr. Nichols said Paragraph 23 talks about the Official Zoning Map and Paragraph 28
says map 3157 is not the Official Zoning Map of the City of Wilmington and does not determine if a
Official Zoning Map. Tab 3 Mr. Nichols said the City of Wilmington subsequently
repealed Ordinance 18-215 and adopted new Conservation Resources Regulations. Mr. Nichols said tdetermination;
they changed the Ordinance. He said in the presentation made by staff, focus should be on the Applicability Section of the Ordinance, whether the COD Regulations apply. Mr. Nichols said
he contends that they do not apply because on the Official Zoning Map no property is in a COD. He also said t
. Ms. Huffman said that is not accurate. Mr. Nichols said he has a draft from the County Planning Department. the
Planning Department regulations but did not include some of the items the City had
adopted. Ms. Huffman said they are dealing with the Ordinance and maps that exist now and argument needs to be restricted to what is presently in place.
6 Mr. Nichols began his questioning of Ms. Hines by asking if the map was the Official Zoning Map. Ms. Hines said she had been advised it was but had not obtained the map personally;
Ms. Huffman answered that the map is the Official Zoning Map. ocated
in a Conservation Overlay District on the Official Zoning Map. Ms. Hines said it shows that his -15 zoning district and there
is a notation on the map to see Section 59.4 of the Zoning Ordinance for the COD. She said when you refer to the Ordinance is says the Official COD maps are maintained in the Planning
Department and updated as needed. Mr. Nichols directed Ms. Hines to the Applicability Section 59.4-2 in his first handout and asked if that section refers to the Official Zoning Map.
Ms. Hines said she was not sure if that is the section that would pertain to the map. Mr. Nichols asked if there was any other map or source other than the Official Zoning Map that would
be used to determine whether property in the County, is located within a zoning district. Ms. Hines said staff routinely uses the County�
�pictorial image of the properties and also has a COD overlay, rather than referring to the paper or Mylar maps. Mr. Nichols said for the record,
he would refer to the Mylar map as Exhibit A-2. He asked if the map was adopted by the County Commissioners. Ms. Hines said she did not know because she was not working in this capacity
for the County in 1984. Mr. Nichols asked if any of the conservation resource maps were adopted by the County Commissioners.
section in 1984 and the record does not show how the maps were adopted together with the language. He read from Section 59.4-3-If a parcel on
record as of December 1, 1984, the effective date of this ordinance is associated with any one of the conservation resources having the minimum distinct areas listed below the parcel
shall be subject to the following performance controls. Official maps of and information concerning these resources shall be maintained by and shall be available for review at the County
Planning Department.
conservation resource. He presented the minutes from the County Commissioner meeting in 1984 where they adopted the COD Ordinance and said there is no mention
of adopting the COD maps. Mr. Nichols said he contends that the Official Zoning Map does not show the property within a COD. He said the Ordinance has not been implemented correctly
and is not reflected in the County Commissioners minutes when adopted in 1984.
1984. 7 Mr. Cameron said Section 30-1 refers to an Official Zoning Map which together with all its explanatory matter, thereon, is adopted by reference. He asked Mr. Nichols how he would
interpret by reference Mr. Nichols said he does not know how to interpret that. He said if these maps are subject to change they can only
be changed by the County Commissioners after notifying the affected parties and holding a hearing. He said there is a reason for an official map but the way the Ordinance is set up,
it was not done properly. referenced that there are no maps showing
the property in a COD. Mr. Nichols said the order was from the court and his understanding is that the maps are showing some type of resource associated with the property. He said there
is a difference. Mr. Cameron said the City did not have as many back-up documents as the County when referring to the COD. Mr. Nichols said the City had an Official Map like the County
and numbered maps that were similar.
and probably a
difference between the City Official Zoning Map and the County Official Zoning Map. Mr. Nichols
said he would need to have the City Official Map before him to answer that question. Ms. Huffman asked Mr. Nichols if it is correct to say that the City Official Map did not have a COD
legend or any reference to the COD on their map. Mr. Nichols said to his recollection it did not. Ms. Huffman said that was major to his argument in the
had no reference to the COD. She said the County Official Zoning Map has in the legend COD: see Section 59.4 in the Zoning Ordinance
to see if your property is in the COD. She said as mentioned by Mr. Cameron, Section 30-1-Official Zoning Map is to be interpreted using the map and any other explanatory material thereon
and therefore, our County Zoning Map has within the legend COD Section to go to Section 59.4 of the Zoning Ordinance to see if the property is in the COD. Mr. Nichols said the districts
can only be shown on the Official Zoning Map. COD maps to
determine whether the COD resources apply to a situation. Keefe said the County was broken into approximately 90 maps that represent 8,000 feet x 24,000 feet on the ground
and then the resources were drawn on the maps by a consultant who used aerial photography and field research to come up with the boundaries shown on the map. He said the practice used
by the Planning staff to determine if a property is in a COD, would be to take a map with zoning and boundaries and overlay it. said now the maps are in a digitized
format so they would pull up the parcel and overlay the COD layer.
8 ay District map and Mr. �
� Ms. Winstead asked if the maps were developed for the purpose of creating a COD. base map was created in 1974 and was used throughout time
because that is how the grid was established. He said the legend went along with the base map.
59.4-3 of the Ordinance. s and they are stored in a drawer in the Planning Department marked COD maps.
Mr. Nichols said in Section 59.4-3 of the Ordinance conservation resource and not the COD. Mr. Jones called
for those to speak in opposition to granting the appeal to come forward to be sworn for testimony. The Chairman swore in Mr. Douglas Horn. Mr. Horn stated they have been property owners
for years in that area and have noticed a lot of activity going on at the Wenger property. He asked if the 20-foot easement is part of the 15,000 sq. ft. Mr. Jones said the 20-foot easement
is included in the total square footage of the lot. Mr. Horn said that easement comes across his property. He said Craig Wenger and Vincent Smith are using his property for access instead
of using the easement. Mr. Horn said if the Board allows Mr. se their access through that 20-foot easement
and also did not want to have additional traffic across his yard to reach it. Mr. Jones said he understands his concern but the Board could not make any rulings on that issue. PUBLIC
HEARING CLOSED Board Discussion Mr. Jones said when looking for a property you must look deeper than the maps because there are many things to consider such as environmental impacts.
He said the COD overlays a lot of different types of districts and it is hard to show on one map. Mr. Cameron said the only question is if the property is in a COD or not. Ms. Winstead
asked if it is two questions; whether or not it is in a COD and whether or not the COD applies to the entire lot. Ms. Winstead said she has some concern as to whether the reference to
a COD on the Official Map is enough because although the COD Ordinance does reference official maps, it does not reference field work but rather the official maps to be used to make
a determination. Mr. Jones said he understood what Ms. Hines was saying about the field work; she was stating that it is what the County uses to go into a more detailed view of what
the COD applies to. Ms. Hines said they have digitized maps that are in much greater detail but the field determination is necessary. She said the Ordinance contemplates that there might
be differences between conditions on the ground than what is on the map. She said Section 31-1, paragraph 8 talks about where physical or
9 cultural features existing on the ground are at variance with those shown on the map. Ms. Hines said that reinforces the notion that they have to go out and look because how else are
you going tell where something is located. Ms. Winstead said she is still questioning whether the entire lot is in the COD. She said Section 31 references back to the zoning map. Mr.
Cameron said the map does say COD on it and the ordinance does a lot of incorporating by reference; and when this was put into place everything could not be placed on one map and still
be legible. Mr. Williams said it is a living document that keeps changing. Mr. Olsen said
the overlay districts, by definition, overlay other districts and could not be on the same map. He said it is a question of if the County could apply the COD at all because if Mr. Nichols
argument is correct, there would be no property within New Hanover County in which a COD applies according to his reading of one part of a phrase in Section 59.4-2. Mr. Olsen said the
other side is, if it is sufficient linkage to the district in meeting the ordinance as a whole if the Official Map refers to COD in a section of the map. Mr. Jones recognized Mr. Nichols
for further comment. Mr. Nichols asked if the Board disagrees with his argument tonight, could they come back to the Board and request a variance or revisit the issue of the subdivision.
Mr. Olsen said he is not so sure that there is a promise of a variance in the future but there is a question of what the subject matter of the appeal was in terms of the facts in this
case. Ms. Huffman said there needs to be a decision whether they are asking for their appeal of determination to be continued from tonight because her determination
was that the property was within a COD. Ms. Huffman said Mr. Nichols limited their argument specifically to whether there was a COD in New Hanover County or not. She said now he is suggesting
that maybe the Board decision may not be in his favor and that he would like the Board to, at a later time, consider if Ms. Hines estimation was correct. Ms. Huffman said there
needs to be some framework around this and it would have to be a continuation of their appeal. Mr. Jones said the Board will make a determination of whether the property is in a COD
or not. Mr. Nichols said the reason they did not ask for a variance is because when seeking a variance, he is accepting the proposition that there is something that he needs to vary
from. He said they do not have intentions of going to court, but if the Board disagrees he is not going to say they would not appeal that decision; and one option would be to come back
before the Board to request a variance. Mr. Jones said he does not see anything that the Board would rule on tonight that would prevent him from doing that. Ms. Huffman and Mr. Olsen
agreed. Ms Huffman said the determination of the Board is that if the property is within a COD, it might be appropriate for the applicant to then have the opportunity at a later time
to ask for a varian
ce. 10 Board Decision: 1. Mr. and Mrs. Craig A. Wenger, 278-280 Williams Road, have appealed the determination of the Chief Zoning Enforcement Official that their property is located
in a Conservation Overlay District. Property is zoned R-15 (Residential). Case No. ZBA-841 2. On a motion by Mr. Cameron and seconded by Ms. Winstead, the Board voted unanimously to
DENY the appeal and find that the property does lie within the COD. All ayes There being no further business before the Board, it was properly moved by Mr. Cameron and seconded by Mr.
Hickman to adjourn the meeting. All ayes. Executive Secretary Chairman