ZBA 4-12 Mins
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, April 24, 2012. Members Present Robert Cameron, Jr., Chairman Justin Lewis Michael
McCulley John “Jack” Stanton II Colin Tarrant Ex Officio Members Present Sharon Huffman, Assistant County Attorney J. Steven Still, 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 the County’s interpretation in enforcement of the Zoning Ordinance. Mr. Cameron added that appellants have thirty days in which to appeal any decision
made by the Board to Superior Court. FIRST ORDER OF BUSINESS Mr. Cameron swore in new Zoning Board of Adjustment member Mr. Colin Tarrant as an alternate member. On a motion by Mr. Stanton
and seconded by Mr. McCulley the Board unanimously approved the minutes from the February 28, 2012 meeting. The Chairman then swore in County staff Ms. Linda Painter and Mr. Steven Still.
FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS: Shellington Properties, Inc., 7641 Market Street, is requesting a variance from New Hanover County Zoning Ordinance Section 67B-4(1) Width
of Buffer Strips. The Zoning Ordinance requires a twenty ft. buffer and the applicant would like to reduce this to ten ft. Property is zoned R-15. Case No. ZBA-867
2 STAFF COMMENTS -Ms. Linda Painter stated the following: The property is located on the west side of Market Street just south of Marshall Court. The applicant has filed to have the
property rezoned to O & I in order to build an office complex. This rezoning is scheduled to go before the Planning Board on May 3, 2012. Once rezoned, this property would be required
to install a twenty ft. buffer along the southern boundary which abuts R-15 residential zoning. However, the property to the south is currently occupied by Christ’s Sanctified Holy Church,
a nonresidential use on a residentially zoned property and the property to the north is zoned O&I. REQUIRED STANDARDS: 67B-4: Additional Requirements for Berms and for Yards in which
Buffers are Required Buffer strips are designed to protect adjoining land uses, particularly residential, from the noise, heat, dust, lights, threats to privacy, and aesthetic impacts
from more intense land-uses. Buffer strips shall be required along all property lines adjacent to a residential use or district, except where a reduced building setback precludes placement
of a buffer strip in situations where the adjoining property contains a nonresidential use on residentially zoned property, such as a church or school. The more intense land use shall
be required to provide the buffer as part of its yard requirements. The following requirements shall be met for buffer strips and the yards in which buffers are required: (1) Location
of buffer strips -Buffer strips shall be required to screen any non-residential use from any residential use or district. (2) Width of buffer strips -The buffers shall have a base width
equal to at least 50% of the required setback. In all cases the base of the buffer shall be equal to or greater than 20 feet. PRELIMINARY FINDINGS OF FACT: The applicant has asserted
the following preliminary “findings of fact.” Staff, in its review of the case, has commented on the assertions of fact. The Board’s findings may agree or disagree with the following
statements. 1. 1. The Board must find that if the applicant complies with the literal terms of the ordinance, specifically, installing a twenty feet buffer along property abutting residential
use or district he (can/cannot) secure a reasonable return from, or make reasonable use of his property. A. Applicant’s Proposed Finding: In order to comply with the literal terms of
the ordinance, the usable portion of the property’s width would effectively be reduced to 56.69’ (101.69-25-20) which creates a buildable area that is insufficient for providing both
a driveway that meets DOT driveway location request as well as minimum standards for driveways, as well as a reasonable building size suitable for office development. The proposed plan
meets the 25’ setback as required by Section 59.6 B. Staff Currently, as a residentially zoned property, the applicant could secure a reasonable return with the construction of residential
dwelling units. This development would not require a buffer area to be installed adjacent to the other properties. However, the property is surrounded by non-residential uses and with
the rezoning of the property to O&I there are practical hardships with reconfiguring the property to fully comply with the buffer width standards.
3 2. The Board must find that the hardship in which the applicant complains results from unique circumstances related to the applicants land. A. Applicant’s Proposed Finding: Does indeed
result from unique circumstances related to the applicant’s land. As demonstrated in the attached (Exhibit A) alternative to the proposed plan, compliance with the literal terms of the
ordinance, as well as providing for sufficient minimum building dimensions, would force the driveway to the north side of the property which does not abut residential use or zone, would
necessitate the demolition and removal of two Significant Trees; in this case, Live Oaks greater than 24” caliper. The proposed plan seeks to meet all of the zoning requirements, while
at the same time responds to the existing unique circumstances of the applicant’s land. B. Staff Staff finds that the circumstances are unique to the property. The narrow rectangular
configuration of the property creates hardships in designing a driveway entrances, buildings and and interior drive isles that meet NCDOT and county standards. The applicant has submitted
and alternate plan which complies with the buffer width regulations however would necessitate the removal of significant trees. The configuration of the lot and existence and location
of the significant trees creates a hardship related to the applicants land. 3. The Board must find that the hardship is not the result of the applicants own actions A. Applicant Asserts:
The applicant has exercised due diligence and has made significant effort to provide the County with a plan that satisfies all of the zoning requirements. The Proposed Plan is the result
of such effort by the applicant and designer, and as mentioned in #4 below, maintains the spirit of the ordinance. B. Staff Concurs 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: Will be in harmony with the general purpose and intent of
the ordinance and will preserve its spirit. Not only does the Proposed Plan meet all other zoning requirements and save two Significant Trees from demolition and removal, the intended
effect of the 20’ buffer 100% opacity, can be reached with a combination of a 10’ buffer strip as well as an 8’ wood fence, as prescribed in Section 67b-4:6b2. The proposed plan calls
for the use of this combination of planting and fencing in order to be in harmony with the general intent of the ordinance. B. Staff Concurs 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: Will secure public safety. The DOT (Department of Transportation) has requested
that we locate the driveway to the southern extent of the property due to an adequate separation between the existing driveway to the north of the tract. This
4 request requires us to locate the driveway along the existing church tract which is zoned R-15. The location of the proposed driveway on the southern end of the tract forces us to
abut the existing residentially zoned parcel. The 10’ buffer variance is only relating to landscaping and will have no effect on the public safety or welfare. B. Staff Concurs Ms. Painter’s
PowerPoint presentation consisted of aerials of the property, site plans, development plans; and photographs showing the fence, trees and office complex. Mr. Cameron asked if the Special
Highway Overlay District was an addition to the underlining district. Ms. Painter answered yes and said the Special Highway Overlay District (SHOD) requires buildings to be setback 100
ft. and side setbacks are 25 ft. Mr. Stanton asked why the church was not zoned O & I when it was built. He also asked if the church could be rezoned at the same time as the buildings.
Ms. Painter said churches can be built in any zoning district. Mr. Still said they would have have to come in and request to be rezoned, and there would have to be a hearing. Ms. Huffman
said the Commissioners rarely rezone property without someone asking that it be done. Mr. Cameron asked Ms. Huffman if the Board could actually rule on a variance for property that has
not been yet rezoned. Ms. Huffman said yes if the Board thinks it is appropriate. She said the variance could be conditioned on the rezoning occurring. Ms. Painter said without the rezoning
it would be residential and it would not be relevant anyway. Mr. Cameron called those to speak to come forward to be sworn for testimony. The Chairman swore in Mr. James A. Wicker, Mr.
Thomas Lynch and Ms. Kimberly J. Brumsey. Mr. James Wicker stated he is the owner of Wicker Properties and is the purchaser of the two properties. He said he wants to construct office
buildings one at a time so they could be staged in. Mr. Wicker said they talked to the adjacent owners and the Department of Transportation (DOT) and had no opposition. Mr. Cameron asked
if they have received preliminary approval from DOT for the driveway. Mr. Wicker said they have a verbal approval from DOT. Mr. Cameron asked if there is an existing driveway and a proposed
second driveway. Mr. Wicker answered yes.
5 Mr. Lewis asked if the driveway would run along the shade area in the 10 ft. buffer. Mr. Wicker said the shade area is where they are requesting the variance. He said there is an existing
fence and vegetation; and because of the width the variance would not harm anything. Mr. Cameron asked Mr. Wicker when he closed on the property and Mr. Wicker said 2 months ago. Mr.
Cameron asked if there was a fallback plan in place or if this was their only plan. Mr. Wicker said they do not have a fallback plan. Mr. Cameron said the application only references
2 trees but it appears there are a significant amount of trees. He asked if the 2 trees were a certain size and would fall into a particular classification. Mr. Wicker said they had
the property mapped out because of the amount of significant live oaks and they wanted to save the significant trees. Mr. Lewis said the back lot appears to be landlocked and useless
without the front property. Mr. Wicker said there is an easement in the rear and his plan is to have a wooden fence with a gate placed in that area. Mr. Cameron asked staff if the 101
ft. width would be reduced by a 20 ft. buffer and also a 25 ft. setback. Ms. Painter said the building has to be set back 25 feet and the 20 ft. buffer is to separate the commercial
and residential. She said the fence is on the church’s property which is their buffer. Ms. Painter said their buffer has to be either 3 rows of vegetation or 2 rows of vegetation and
a fence. Also the buffer has to meet the 100 % opacity requirement. Mr. Cameron asked what happens when someone cuts down significant trees. Ms. Painter explained that if significant
trees are cut down the requirement is that you either plant double the inches of trees that were cut down or pay into the County’s tree fund. The Chairman called for any others to speak
in favor of granting the variance request. Mr. Lynch stated that he is a broker and worked with Mr. Wicker on this project. He said they talked to the neighbors about the project. He
said the church has a triangular shaped easement on the northeast side of the property which is used as a drain field. Mr. Lynch said they offered to pay $2500 towards the cost to hook
the church up to sewer in exchange for the property but they declined the offer. Mr. Cameron called for those to speak in opposition to granting the variance request to come forward
for testimony. Ms. Kimberly Brumsey stated she is a neighbor and is opposed to granting the variance request. She said her property is not fenced in and trucks are crossing her property
to get to the lot in order to clear it. Ms. Brumsey said she is concerned with the noise level, increased traffic, the buffer and the trees that they plan to cut down. Ms. Brumsey said
she was not aware of the proposed driveway and asked if they could build the driveway on the other side of the lot.
6 Mr. McCulley said the applicant currently have an easement and they have a legal right to use that easement. However, they are trying to provide for access in another place on the
property so that they would not have to use that easement. Mr. McCulley said it appears that parking is on the other side of the structure and the lighting would be on the other side
of those buildings. Ms. Huffman suggested that Ms. Brumsey attend the rezoning meeting scheduled for June 7th to express her concerns. Ms. Brumsey asked if they could change their plan
at a later time. Mr. Wicker said they would have to come back to the Board for any changes and she would receive notification. He explained to Ms. Brumsey that they are asking for a
10 ft. variance instead of the required 20 ft. Mr. Wicker pointed out on the map the location of the proposed driveway, the existing fence, the vegetation and the location of the proposed
fence. Ms. Brumsey asked if that proposed fence would be on her side. Ms. Painter said the fence would would be on the inside of Mr. Wicker’s property. Ms. Painter further explained
that there would be vegetation and the fence would be behind the vegetation. She also said that any lighting must remain onsite and not directed onto any other properties. Ms. Brumsey
asked the height of the office buildings and fence. Mr. Wicker said the fence would be 8 ft. and the buildings would be one and one-half story. Mr. Stanton asked if the easement would
remain open and mainly used for emergency vehicle access. Mr. Wicker said yes and they would also have a gate. Ms. Brumsey asked the number of offices planned for each of the 4 buildings.
Mr. Wicker said it is dependent upon the number of employees and the parking requirements. PUBLIC HEARING CLOSED – Board Discussion Mr. Lewis said the only way they could make use of
the property is if it is rezoned commercial. He said if it stays residential there would not be a need for the variance. Mr. McCulley said also if it stays residential there would not
be a buffer requirement. Mr. Cameron asked Ms. Painter if the reason that staff concurs with number 3 of the Findings of Fact was because the County weighed the benefit of keeping the
trees and vegetation. Ms. Painter said it is abutting a non-residential use even though it is zoned residential and when the trees get to a significant size the County does not want
those trees destroyed. She also added that the opacity has to be achieved no matter how wide the buffer. Mr. Cameron asked the procedure for measuring the opacity. Ms. Painter said there
is a Plant & Tree manual that is used as guidance.
7 Mr. Cameron said the fact that a church is next door on a residential use is a factor. Mr. McCulley said the church is there and commercial uses are on the other side. He said the
whole peninsula of that corner is trending towards commercial industrial and the proposed rezoning would be more in harmony with that area. Mr. Cameron said if the church came back and
rezoned to O & I then that 20 ft. buffer would not be necessary. Mr. Lewis said if the rezoning is not approved they could not make much use of the land without this variance for the
driveway. Mr. Cameron said the Board could make it conditional for anything that may happen in the future. Mr. McCulley said the reasonable factor is there even without it being rezoned.
He also said there are unique challenges to the property. Mr. Stanton said it is not buildable under the current standing. He said the layout is viable and they have set the standard
higher by volunteering to go to an 18 circumference for trees instead of the County’s requirement of a a 24 circumference. Mr. Cameron asked staff if the variance is approved and the
property is rezoned is there anything in place to prevent them from cutting down those trees later. Ms. Painter said they would not be allowed to take down significant trees if the property
is developed and the only way a significant tree could be taken down is if the tree is impeding the development of a lot. Ms. Painter said if they asked for permission to take down a
significant tree they would be denied and if they take the tree down anyway they would be fined. Mr. Tarrant said the key is the fact that the R-15 is not a residential use. He said
the church is set back from the road and there is a large portion of green space. He said the church would not be right next to this property due to the required larger buffer. Mr. Tarrant
said they would also still need to have a 20 ft. buffer in the rear next to the neighbor and there are some contingencies that would be tied to the site plan so that the current plan
could not be changed. BOARD DECISION 1. Shellington Properties, Inc., 7641 Market Street, is requesting a variance from New Hanover County Zoning Ordinance Section 67B-4(1) Width of
Buffer Strips. The Zoning Ordinance requires a twenty ft. buffer and the applicant would like to reduce this to ten feet. Property is zoned R-15. Case No. ZBA-867 2. On a motion by Mr.
McCulley and seconded by Mr. Lewis the Board voted unanimously to GRANT the variance request based on the findings of fact and the site plan submitted with their package dated March
14, 2012. It is further conditioned that the variance is granted based on the Planning Board’s approval of the rezoning and if the Planning Board does not approve the rezoning this variance
becomes null and void.
8 There being no further business before the Board, it was properly moved by Mr. McCulley and seconded by Mr. Lewis to adjourn the meeting. All ayes. 6:25 P.M. Executive Secretary Chairman