ZBA 2-11
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 Conference Room, Wilmington, NC, on Tuesday, February 22, 2011. Members Present Members Absent Robert Cameron, Jr., Chairman
Eric Hickman Noelle Winstead Justin Lewis Peter DeVita Joe Miller, Alternate Michael McCulley, Alternate Ex Officio Members Present Sharon Huffman, Assistant County Attorney Jane Daughtridge,
Planning and Zoning Manager J. Steven Still, Acting Executive Secretary Linda E. Painter, Zoning Code Official Hattie Moore, Clerk The meeting was called to order at 5:30 P.M. by the
Chairman, Mr. Robert Cameron, Jr. Mr. Cameron explained that the Zoning 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 Zoning Board also hears appeals of �
�r. Cameron added that appellants have thirty days in which to appeal any decision made by the Board
to Superior Court. Mr. Cameron swore in County staff Ms. Jane Daughtridge, Mr. Steven Still and Ms. Linda Painter. FIRST AND ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: Bobby W. Harrelson,
616 & 620 N. College Road, is requesting a variance from New Hanover County Zoning Ordinance Sections 52.5-2 Conventional Residential Regulations, Dimensional Requirements: (1) Minimum
lot area for a Duplex 25,000 sq ft. Property is zoned R-15. Case No. ZBA-859. Mr. Cameron called Ms. Painter to give an overview of the case. Ms. Overview: Mr. Bobby
W. Harrelson is the owner of the properties located at 616 & 620 North College Road. The two parcels were created (July 1965) prior to zoning (July 1, 1972) and would be considered legal
non-conforming lots of record in regards to their dimensional deficiencies. A portion of 616 North College Road was taken by North Carolina Department of Transportation in April 1994
for the Right-of-Way for Martin Luther King Jr. Parkway. New Hanover County Zoning Ordinance, Section 59.5-1 states the dimensional requirement of the R-15 zoning district to contain
a minimum lot area of 15,000 square feet, duplex 25,000 square feet. Currently the existing lot at 616 N College Road contains 9,583 square feet each and the lot at 620 N College Road
contains 14,810 square feet. The proposed
2 combination of the two properties into one would result in parcel containing 24,384 square feet. This proposed combination would result in creation of a conforming R-15 lot. However,
the new lot would be 616 square feet short of the minimum square footage requirements to construct a duplex on the parcel. REQUIRED STANDARDS: Section 52.5: R-15 Residential District
52.5-1: The R-15 Residential District is established as a district in which the principal use of land is for residential purposes and to insure that residential development not having
access to public water and dependent upon septic tanks for sewage disposal will occur at sufficiently low densities to insure a healthful environment. 52.5-2: Conventional Residential
Regulations Dimensional Requirements: (1) Minimum lot area 15,000 sq. ft. Duplex 25,000 sq. ft. (2) Minimum lot width 80 feet (3) Minimum front yard 25 feet (4) Minimum side yard 10
feet (5) Minimum rear yard 20 feet (6) Maximum height 35 feet PRELIMINARY FINDINGS OF FACT: The applicant has asserted
Staff, in its review of the case,
the following statements. 1. The Board must find that if the applicant complies with the literal terms of the ordinance, specifically, 59.5: R-15 Residential
District, 52.5-2: Conventional Residential Regulations, Dimensional Requirements 1) Minimum lot area 15,000 sq ft, Duplex 25,000 sq ft he cannot secure a reasonable return from, or make
reasonable use of his property. A. : These single family residential lots are located on a high traffic street corner with a high
level of noise not conducive to construction of a new residence/residences by a potential buyer or developer. Applicant has procured a ready, willing and able Buyer for the site who
intends to relocate an existing duplex residence from Wrightsville Beach, NC. Applicant asserts that the marketability of the site to other potential single family residential users
is severely , limited aesthetics, etc.). The site is attractive
to those who can relocate an existing structure at a low cost, such as the potential Buyer described above. The two sites are currently legal nonconforming lots, which could accommodate
two individual single family residences. Applicant asserts that one duplex unit is of lower impact than two individual single family residences. B. Staff. 1. Staff finds that if the
applicant complies with the literal terms of the ordinance he can secure a reasonable return from or make reasonable use of his property. �
�
3 2. The Board must find that the hardship in which the applicant complains results from unique circumstances related to the applicants land. A. Applica:
The sites have been reduced in size by the acquisition of right-of-way land by the NC Department of Transportation, thereby reducing the development potential of the property. The encroachment
of major thoroughfares on the site has limited its marketability due to traffic noise and lack of privacy. The pool of buyers interested in constructing a single family residence on
the site is extremely small due to these factors. B. Staff 1. Staff concurs with applicant that the acquisition by NC Department of Transportation of a portion of the lot for right-of-way
is unique to this parcel. A duplex on the combined lots would have a lesser degree of nonconformity (3%) compared to development of individual lots (35%) 616 N. College Road consists
of 9,583 sq. ft. which is 34% less than the required 15,000 sq. ft. required in a R-15 zoning district. While 620 N. College Road has 14,810 sq. ft. which is 1% less area than required.
3. The Board must find that the hardship is not the result of the applicants own actions A. Applicant Asserts: The sites are previously undeveloped. Applicant has taken no action that
would directly or indirectly cause the hardship. B. Staff 1. 4. The Board must find
that if granted, the variance will be in harmony with the general purpose and intent of the ordinance and will preserve its spirit. A. Applicant Asserts: Upon recombining the two lots,
the property will only remain a nonconforming lot due to a small shortage of 615 +/-square feet of land. The lot is currently a total of 24,385 +/-sq. ft. just short of the 25,000 sq.
ft. required for a duplex residence. The level of nonconformity with the ordinance will be extremely low. B. Staff 1. Staff concurs that if granted the variance would be in harmony with
the general purpose and intent of the ordinance, 5. The Board must find that if granted, the variance will secure the public safety and welfare and will do substantial justice. A. Applicant
Asserts: Applicant asserts that a duplex residence is the highest and best use for the property. No adverse effects to public safety and welfare are anticipated as a result of simply
relocating an existing residential structure to the property. One duplex unit would be of lower impact to the surrounding area than two individual single family residences. B. Staff
1. Staff finds that if granted variance will secure the public safety and welfare and will do substantial justice.
4 presentation consisted of a site plan, aerial maps showing the two lots, maps showing the proposed development and various pictures
of the lot. Mr. Cameron asked about the vegetation running along the property line. Ms. Painter pointed out a fence and the vegetation that runs along the property line but said she
did not know who owns the vegetation. Mr. Cameron called those to speak in favor of granting the variance request to come forward to be sworn for testimony. The Chairman swore in Mr.
Donald Harley, Mr. William Leonard and Mr. Bobby Harrelson. The Chairman called Mr. Harrelson who stated that he will be represented by Mr. Harley and Mr. Leonard. Mr. Harley stated
they had exhausted every avenue to provide a return and eventually decided that this would be the best alternative. He said DOT (Department of Transportation) was not interested in their
offer to purchase more land. Mr. Harley said access to the property is by old 132 N and would not be a traffic generator. Mr. Leonard stated this could be two single family houses or
college rentals. He also said they wanted to relocate at very little cost. Mr. Cameron asked how water and sewer is provided. Mr. Leonard said through the Cape Fear Public Utility. Mr.
Harley said he at but there is water and sewer at that location. Mr. Cameron asked the age of the duplex that they want to move onto the
lot. Mr. Harley said it is probably over 20 yrs old. Mr. Cameron asked the amount of land taken by DOT through eminent domain. Mr. Harrelson said he could not recall the amount of land
taken by DOT. He further stated that the situation was created when the Smith Creek parkway came through. He said the lots were normal size but the state encroached onto them. Mr. Harrelson
said they could build 2 houses with no additional density. Mr. Miller asked how long the property was on the market before they decided to go in this direction. Mr. Harley said seven
months. Mr. Miller asked what feedback they received from people that viewed the property. Mr. Harrelson said everybody that saw the property wanted it for a duplex. Mr. Cameron asked
if fire trucks would access using the service road. Mr. Harley said yes, access would be the same.
5 Mr. Miller asked if the other 4 houses were single family residences. Mr. Harley answered yes. He added that there are also rental homes and some for sale. Mr. Miller asked if it would
be income generated and Mr. Harrelson answered yes. Mr. Cameron asked if DOT compensated him for the property they took. Mr. Harrelson said yes but he does not remember the amount. Mr.
Cameron asked if the property they took in 1994 became the Martin Luther King Jr Parkway. Mr. Harley said yes and they also took some property from old College Road. Mr. Cameron asked
the selling price and Mr. Harley said $40,000. Mr. Cameron called for those to speak in opposition to granting the variance request to come forward for testimony. There was no one present
to speak in opposition to granting the variance request. PUBLIC HEARING CLOSED Board Discussion Mr. Miller asked if the duplex falls within all the setbacks. Ms. Painter answered
yes. She said the requirement for R-15 is 10 ft. on the sides and 20 ft. in the rear and the applicant has more than what is required. Ms. Winstead said number 1 on the Findings of Fact
addresses reasonable return and is the only one that staff is not in agreement with the applicant. She said they meet all the other requirements. Mr. DeVita said he feels the applicant
meets all the criteria and has shown that he could not get a reasonable return. Mr. Miller asked staff the reason they feel the applicant could make a reasonable return. Ms. Painter
said there is still the potential that 2 single family homes could be built on the lot. Ms Winstead said she does not feel they could have a reasonable return even with 2 houses on the
lot. Mr. McCulley said if they did try to build two single family homes on the lot they would be small houses due to the setback requirements. Mr. Cameron asked with 2 houses on the
lot would they have any relaxation of the setbacks. Mr. Still said no; it is a legal non-conforming lot and they have to meet the setback requirements. Mr. Cameron said he feels the
applicant has made a case for reasonable use. He said they did not create the situation, the traffic problem is due to population growth in Wilmington and DOT took part of their land.
6 Mr. McCulley said based on evidence presented they have made a good faith effort to do what they could with the lot and this is the best and only alternative. BOARD DECISION 1. Bobby
W. Harrelson, 616 & 620 N. College Road, is requesting a variance from New Hanover County Zoning Ordinance Sections 52.5-2 Conventional Residential Regulations, Dimensional Requirements:
(1) Minimum lot area for a Duplex 25,000 sq ft. Property is zoned R-15. Case No. ZBA-859. 2. On a motion by Mr. Peter DeVita and seconded by Mr. Michael McCulley the Board voted unanimously
to GRANT the variance request based on the applicant meeting Articles 1, 2,3,4, and 5 of the Findings of Fact BOARD BUSINESS
Mr. Robert Cameron, Jr. was unanimously re-elected as Chairman of the New Hanover County Zoning Board of Adjustment for year 2011. Ms. Noelle Winstead was unanimously elected as Vice-Chairman.
Ms. Daughtridge asked the Board if they considered placing time limits on speakers. She said when the County Commissioners hear special use permit cases which are also quasi-judicial,
they allow 15 minutes for presentation, 15 minutes for opposition, which is cumulative total and 5 minutes for rebuttal per each side. Mr. DeVita said it has to be in the procedures.
He said the City also has time limits for speakers at their Zoning Board of Adjustment hearings; they allow 20 minutes for presentation and 5 minutes for rebuttal for each side. Ms.
Huffman said the time limit should be included in opening statement. Ms. Daughtridge said the applicant should be informed of the time limit at the time
of application. She suggested adding it to the application form. Mr. Cameron said 20 minutes per side should be enough time with a 5 minute rebuttal for each side and the Board could
adjust if needed. He also suggested using a sign-in sheet with a note at the top detailing the time limits. Mr. Cameron will create a sign-in sheet. Mr. Still said next month he plans
to send out the case materials electronically and if all goes well, we will use that avenue every month. There being no further business before the Board, it was properly moved by Mr.
DeVita and seconded by Mr. McCulley to adjourn the meeting. All ayes 6:22 P.M. Acting Executive Secretary Chairman