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ZBA-2-12 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, February 28, 2012. Members Present Robert Cameron, Jr., Chairman Justin Lewis Peter DeVita Chad McEwen Michael McCulley Ex Officio Members Present Sharon Huffman, Assistant County Attorney J. Steven Still, Executive Secretary Linda E. Painter, Zoning Code Official Christine R. Bouffard, 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 members; Mr. Chad McEwen as a regular member and Mr. John E. Stanton, II as an alternate member. On a motion by Mr. DeVita and seconded by Mr. McCulley the Board voted unanimously to accept the 2012 Zoning Board of Adjustment schedule. The Board voted unanimously to re-elect Mr. Robert Cameron as Chairman of the Zoning Board of Adjustment and elect Mr. Justin Lewis as Vice-Chairman. On a motion by Mr. Lewis and seconded by Mr. DeVita the Board unanimously approved the minutes from the October 25, 2011 meeting. The Chairman then swore in County staff Ms. Linda Painter, Ms. Christine Bouffard and Mr. Steven Still. 2 FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS: Valerie G. Bauwens, 176 Beach Road South, is requesting a variance from New Hanover County Zoning Ordinance Section 51-2(3) Dimensional Requirements for a proposed structure that will encroach 10 feet into the required 30’ front yard setback. Property is zoned R-20S. Case No. ZBA-864 STAFF OVERVIEW: Ms. Bouffard stated: Valerie Bauwens is the owner of the home located at 176 Beach Road, Figure 8 Island. The applicant is requesting a 10’ front yard setback variance in order to demolish and rebuild a new single family structure within a limited footprint due to a required 60’ CAMA setback and the high erosion that this part of the island faces. Due to erosion and because the CAMA setback line is a non-static line, the rear of the structure currently lies upon the 1st line of stable and natural vegetation which is the starting point of the 60’ CAMA setback. The original structure was built in 1983 under AE floodplain standards and at that time met all required CAMA CAMA setbacks. 2006 changes in floodplain mapping now locate the property in the more stringent VE flood hazard area. All new construction will then be in compliance with current VE floodplain coastal construction regulations. REQUIRED STANDARDS: Section 51: R-20S Residential District The R-20S Residential District is established as a district in which the principal use of land is for low density single-family residential purposes. The regulations of this district are to permit development compatible with the preservation of its rural character and providing limited growth. It is designed to accommodate residential opportunities for those who desire exurban, low-density lifestyle and are willing to assume the costs of providing many of their own services and amenities while maximizing the protection of resources and the conservation of open space. Mobile homes, duplexes, residential clusters, attached residential and high density attached residential uses shall not be permitted. 51-2: Dimensional Requirements: 1. Minimum Lot area 20,000 Square Feet 2. Minimum Lot width 90 feet 3. Minimum Front Yard 30 feet 4. Minimum Side Yard 15 feet 5. Minimum Rear Yard 25 feet 6. Maximum Height 35 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. The Board must find that if the applicant complies with the literal terms of the ordinance, specifically, compliance with the required 30 foot front yard setback he (can/cannot) secure a reasonable return from, or make reasonable use of his property. A. Applicant’s Proposed Finding: The existing structure does not meet the required 60-foot CAMA setback and is located too close to the beach. There is persistent beach erosion at the south end of the island where the home is located. Any impending 3 major storm would further deteriorate the potential for long-term use of the home. The current building envelope does not allow for the present structure to be moved undermining the return and use of the property. All possible alternatives have been explored and exhausted. B. Staff agrees that extreme erosion at this location has greatly reduced the amount of buildable area because of a regularly changing CAMA setback line. 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: The land is subject to storm-driven erosion which has threatened in the past and will threaten in the future, the current structure. B. Staff agrees that this location of the island faces an ongoing threat due to high erosion and damage of previous storms. 3. The Board must find that the hardship is not the result of the applicants own actions A. Applicant Asserts: Beach erosion is beyond control of the applicant. Furthermore, the present structure was built over 25 years ago and in compliance to past and outdated building regulations. B. Staff agrees the current structure is not in compliance with current building regulations. 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: The 10-foot front yard variance is not uncommon with similar properties on the island facing similar beach erosion issue. Ten feet of variance represents only a reasonable front yard setback. 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: The front yard variance is in accordance with similar requests in the neighborhood and provides applicants with appropriate remedy. B. Staff concurs Ms. Bouffard’s PowerPoint presentation consisted of aerials, various photographs of the property showing the CAMA line, flags and sand fencing. 4 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 Ms. Valerie Bauwens and Mr. Sebastian Saviano. Ms. Bauwens stated the house was built very close to ocean. She said they cannot relocate the house so the only option is to rebuild. Ms. Bauwen said the envelope of the structure is triangular shaped and will not allow for a standard sized home. She said they want to be in harmony with the other homes and not be so close to the ocean. Mr. DeVita said the house is on pilings. He asked why the house could not be moved. Ms. Bauwens said the house cannot be moved because the current building envelope cannot fit within the CAMA setback line. She said with the variance they could have a rectangle shaped house which would not be as large as the current house but would be in harmony with her neighbors’ homes and sit farther away from the ocean Mr. Cameron asked if it was due to erosion undermining the pilings that they would need to rebuild. He said the silt fence is a temporary measure and asked Ms. Bauwens if she felt that another storm would undermine the house. Ms. Bauwens said that is correct and she presented pictures to the board which she said shows where half the dune was removed after the last big storm. Mr. Cameron asked staff if CAMA would need to be involved. Ms. Bouffard said they would need a Figure Eight Island approval but CAMA would not be involved. 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. Lewis said this hardship was not created by the applicant and if they build another house it would be in harmony with the other homes in the neighborhood. Mr. Cameron said it is a unique but common issue and the erosion would prevent a reasonable return. Mr. DeVita said most of the homes on the north and south end of Figure Eight Eight Island will be subject to the same conditions in the future. He questioned if 10 ft. was enough but still see no problem with granting the variance request. Mr. Cameron asked staff if the County’s insurance rating would be affected by granting this variance. Mr. Still said no, granting the variance request would not affect the County’s insurance rating. 5 BOARD DECISION 1. Valerie G. Bauwens, 176 Beach Road South, is requesting a variance from New Hanover County Zoning Ordinance Section 51-2(3) Dimensional Requirements for a proposed structure that will encroach 10 feet into the required 30’ front yard setback. Property is zoned R-20S. Case No. ZBA-864 2. On a motion by Mr. DeVita and seconded by Mr. Lewis the Board voted unanimously to GRANT the variance request based on the findings of fact submitted. SECOND CASE BEFORE THE BOARD WAS AS FOLLOWS: EMW BRS LLC and Joan W. Robins Revocable Trust, 179 Beach Road South, is requesting a variance from New Hanover County Zoning Ordinance Section 51-2(4) Dimensional Requirements for an existing structure that encroaches 2.4 feet into the 15 feet required side yard setback. Property is zoned R-20S. Case No. ZBA-865 STAFF OVERVIEW: Ms. Painter stated: EMW BRS LLC & Joan W. Robins Revocable Trust are the owners of the home located at 179 Beach Road S., Figure Eight Island. An as-built survey dated September 22, 2011 revealed that a portion of the porch on the western side of the house encroaches into the required sideyard setback. New Hanover County Zoning Ordinance, Section 51-2:4 states that the minimum sideyard setback for R20-S zoning is 15 feet. The existing porch intrudes 2.4 feet into the required setback. The setback violation was discovered when the survey was prepared. The applicant states that the setback violation has existed since the house was built in the 1980’s and that to comply with the literal terms of the ordinance he would have to perform substantial reconstruction of the existing structure. REQUIRED STANDARDS: Section 51: R-20S Residential District The R-20S Residential District is established as a district in which the principal use of land is for low density single-family residential purposes. The regulations of this district are to permit development compatible with the preservation of its rural character and providing limited growth. It is designed to accommodate residential opportunities for those who desire exurban, low-density lifestyle and are willing to assume the costs of providing many of their own services and amenities while maximizing the protection of resources and the conservation of open space. Mobile homes, duplexes, residential clusters, attached residential and high density attached residential uses shall not be permitted. 51-2: Dimensional Requirements: 1. Minimum Lot area 20,000 Square Feet 2. Minimum Lot width 90 feet 3. Minimum Front Yard 30 feet 4. Minimum Side Yard 15 feet 5. Minimum Rear Yard 25 feet 6. Maximum Height 35 feet 6 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. The Board must find that if the applicant complies with the literal terms of the ordinance, specifically, compliance with the required 15 foot side setback he (can/cannot) secure a reasonable return from, or make reasonable use of his property. A. Applicant’s Proposed Finding: The irregular shape of the lot at 179 S. Beach Road presents difficulties in situating a typical rectangular-shaped structure of a size consistent with others in the neighborhood on this lot without violating the side setbacks. The County did not require an as-built foundation survey at the time the structure was built on the lot. It has not been the policy of the County to expect demolition or reconstruction in these circumstances. Since the encroachment is now known, it must be disclosed to subsequent purchasers, rendering the property unmarketable without a variance. B. Staff submits that the applicant can secure a reasonable return and reasonable use of the property. This situation occurs occasionally because the County has no policy in place that requires as-built foundation surveys. Additionally, it has not been the policy of the County to expect reconstruction in these circumstances. 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: The lot at 179 S. Beach Road is irregular in shape thus presenting difficulties in locating a typical structure on the lot without some violation of side setbacks. B. Staff disagrees that the pre-existence of the encroachment is unique to the applicant’s land. 3. The Board must find that the hardship is not the result of the applicants own actions A. Applicant Asserts: The existing structure was constructed in 1983. The property has been sold five (5) times since than without knowledge of the encroachment. 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: The total area encroached upon within the setback is approximately 75 sq. ft. or 2% of the 3,707.7 sq. ft. total side setback area. Extensive vegetative buffer exists to serve as a natural screen along the property line in question. The encroachment has existed since 1983 without any complaints from neighboring property owners. B. Staff concurs. 7 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: The encroachment does not present a health hazard or affect the safety or well-being of adjoining property owners. The encroachment has existed since 1983 and has had no adverse effect on property values in the neighborhood. B. Staff concurs. Ms. Painter’s PowerPoint Presentation consisted of aerials, various photographs of the property and site plans. Chairman called for those to speak in favor of granting the variance request to come forward to be sworn in for testimony. Mr. Cameron swore in Mr. Edwin Woltz. Mr. Woltz stated that he owns the house through an LLC and his sister owns her half in a trust. Mr. Woltz said they are requesting a variance for a 2.4 ft. encroachment into the 15 ft. side setback. He said they bought the house in 1985 and no one had ever gotten a survey prior to November 2011 when the encroachment was discovered during a riparian survey. He said there is a dense vegetative barrier between the two houses and there are no plans to remove that barrier. Mr. Woltz said the encroachment does not affect septic, health or safety and it would be very expensive to correct the encroachment. Mr. McCulley said conditions would need to be placed if the variance request was granted to prevent additional expansion. Also, they would have to make it compliant if something happens and they would need to rebuild. Mr. Lewis questioned staff’s statement in the summary “It has not been the policy of the County to expect reconstruction in these circumstances.” He asked if the Board did not grant the variance request would it have to be torn down. Mr. Still said it would not be torn down. He said they would work with the customer to help them bring it into compliance. 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. McCulley said according to staff’s summary it appears that staff feels they could secure a reasonable return if the variance is not granted. Mr. Still said it would be a financial burden on the applicant if they had to tear off the portion of the house not in compliance but doing that would not render the house unusable. Mr. McCulley said the term “reasonable” can be read in several different ways. He said it is looking at the totality of the circumstances because you can spend a lot of money fixing something and render the 8 property able to make a return but if you spend so much money that it is cost prohibited then that is no longer a reasonable return. Mr. DeVita said the applicant did not create the hardship. He said when the house was built an as-built survey was not required and inspections were not conducted properly. Mr. Cameron asked the Board if the property would be in harmony, secure public safety and do substantial justice if the variance request was granted. The Board all agreed that granting the variance request would cover all those areas. Mr. Woltz asked if they were to suffer hurricane damage and had to replace the roof would they have to come back to the Zoning Board of Adjustments before applying for a building permit. Mr. DeVita explained to Mr. Woltz that if the house is destroyed the variance goes away and he would need to rebuild in compliance with the existing codes. BOARD DECISION 1. EMW BRS LLC and Joan W. Robins Revocable Trust, 179 Beach Road South, is requesting a variance from New Hanover County County Zoning Ordinance Section 51-2(4) Dimensional Requirements for an existing structure that encroaches 2.4 feet into the 15 feet required side yard setback. Property is zoned R-20S. Case No. ZBA-865 2. On a motion by Mr. Lewis to grant the variance request based on the findings of fact with the stipulation that it could not be expanded beyond the current footprint and could only be returned to its current state of repair in the event of damage. The motion was seconded by Mr. McCulley. All ayes. THIRD AND LAST CASE BEFORE THE BOARD WAS AS FOLLOWS: James Marling, 721 Porters Neck Road, is requesting a variance from New Hanover County Zoning Ordinance Section 52-2(4) Dimensional Requirements for an existing structure that encroaches 3.2 feet into the 15 feet required side yard setback. Property is zoned R-20. Case No. ZBA-866 STAFF OVERVIEW Ms. Bouffard stated: James Marling is the owner of the home located at 721 Porters Neck Road, Wilmington. A recent as-built survey revealed that a corner of the structure on the western side of the house encroaches into 3 feet 2 inches into the side-yard setback, and a second encroachment on the eastern side of 8 feet 7 inches into the side-yard setback. New Hanover County Zoning Ordinance, Section 52-2:4 states that the minimum side-yard setback for R20 zoning is 15 feet. These setback violations were discovered after recent building plans were proposed to remodel a screen porch into conditioned space and a new survey was prepared. The applicant states that the setback violation has existed since time of construction in 1981 and that to comply with the literal terms of the ordinance would mean that the structure could not be used as the way they intended at time of purchase and would create a hardship for the family. 9 REQUIRED STANDARDS: Section 52: R-20 Residential District The R-20 Residential District is established as a district in which the principal use of land is for low density single-family residential purposes. The regulations of this district are to permit development compatible with the preservation of its rural character and providing limited growth. It is designed to accommodate residential opportunities for those who desire exurban, low-density lifestyle and are willing to assume the costs of providing many of their own services and amenities while maximizing the protection of resources and the conservation of open space. Mobile homes, duplexes, residential clusters, attached residential and high density attached residential uses shall not be permitted. 51-2: Dimensional Requirements: 1. Minimum Lot area 20,000 Square Feet 2. Minimum Lot width 90 feet 3. Minimum Front Yard 30 feet 4. Minimum Side Yard 15 feet 5. Minimum Rear Yard 25 feet 6. Maximum Height 35 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. 6. The Board must find that if the applicant complies with the literal terms of the ordinance, specifically, compliance with the required 15 foot side setback he (can/cannot) secure a reasonable return from, or make reasonable use of his property. C. Applicant’s Proposed Finding: The applicant asserts that the property is not legal and cannot be sold. D. Staff submits that the applicant can secure a reasonable return and reasonable use of the property. 7. The Board must find that the hardship in which the applicant complains results from unique circumstances related to the applicants land. C. Applicant’s Proposed Finding: The applicant states that this is the only property with non-conforming setbacks; references attached letter. D. Staff disagrees that the pre-existence of the encroachment is unique to the applicant’s land. 8. The Board must find that the hardship is not the result of the applicants own actions C. Applicant Asserts: The house was built and sold twice without County regard to setbacks. D. Staff -The house was built in 1981, County building permit records are not available before 1998. Therefore, it is not possible to determine if the error is due to 10 a building inspector issuing the permit in error. The County does not require surveys for transfer of ownership. 9. 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. C. Applicant Asserts: The setbacks would not change the spirit of the property or affect any other neighbors; references attached letter. D. Staff concurs 10. The Board must find that if granted, the variance will secure the public safety and welfare and will do substantial justice. C. Applicant Asserts: There are no safety issues in regard to my property; references attached letter. D. Staff Concurs Ms. Bouffard’s PowerPoint Presentation consisted of aerials, survey showing the encroachment, site plans and various photographs of the property. Mr. DeVita asked if both structures were added prior to 1998. Ms. Bouffard said they are unable to determine that because there are no records and the applicant states that it was part of the original structure. Mr. DeVita asked if it was not connected with a breezeway would it be classified as an accessory structure. Ms. Bouffard said depending on the size and if less than 600 sq. ft. it would qualify for reduced setbacks of 5 ft. The Chairman called those to speak in favor of granting the variance request to come forward to be sworn in for testimony. Mr. Cameron swore in Mr. Alton Porter, Ms. Joyce Marling and Mr. John Friesland. Ms. Marling stated she purchased the house along with her father as a retirement home. She said an original permit for a septic tank was obtained in 1971 and the house was sold in 1981. She said they have had the house for the past 3-1/2 years and they want to screen in the porch, add a porch onto the back and make the house legal. Mr. DeVita asked Ms. Marling if she is asking the Board to give her an approval for the encroachment of approximately 3.2 ft. for the existing porch and also a variance to build another porch which would be 4.11 ft. Ms. Marling said she is not asking asking to go wider but to add a screened in porch to the existing porch in order to create a den. 11 Mr. McEwen said the map shows a proposed screened porch at 10.1 ft. He said the applicant is asking for a variance for 11.8 ft. and a future variance for the 10.1 ft. and 6.3 ft. Ms. Marling said the neighbor does not have problems with them extending their project onto his front yard. Mr. DeVita suggested that she get the neighbor to sell her 3-1/2 ft. on the side and that could eliminate the problem. Ms. Marling said that would require more money. Mr. DeVita said the Zoning Board of Adjustments try to rectify problems not created by the homeowners and the Board also looks negatively on requests where the applicant creates their own hardship. Mr. DeVita said he would be in favor of granting the request for the legal position of the garage and screened in porch but he would not agree to give the applicant another variance because she would be creating the hardship. Mr. Cameron called Mr. Friesland to speak. Mr. Friesland said he is the builder and they would be fine with an 11.8 ft. side setback variance variance all the way back. He said his client wants the garage to be made legal and the other side setback changed from 15 ft. to 11.8 ft. Mr. DeVita said that was not in the variance request and the Board cannot hear anything other than what is requested in the variance. He said the variance request states the side setback for the garage and side setback for the porch. Mr. DeVita said they are asking to enclose the existing screened in porch rather than building a new porch. Ms. Huffman said they could amend their request and the Board could consider it at this meeting. The Board entered into discussion. Following discussion, the Chairman called Mr. Alton Porter to speak. Mr. Porter said he is the next door neighbor and does not have any objections to the project. 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. McCulley said there are two basic issues. One is the existing structure which needs to be made legal and also whether the Board would allow further encroachment. Mr. DeVita said they will not be issued a building permit to enclose it and make it heated space unless they get a variance. He said if it destroyed they will have to get a building permit to rebuild. He said and if the house is completely destroyed they would need to build according to the current building code requirements. 12 Mr. Cameron asked staff for input. Mr. Still said if the variance is granted it is good for the life of the property. He said if conditions are placed just for the structure only it will only apply for that structure. Mr. Cameron asked if it would be for the existing footprint. Mr. Still said the condition language has to state that [for the existing footprint]. BOARD DECISION 1. James Marling, 721 Porters Neck Road, is requesting a variance from New Hanover County Zoning Ordinance Section 52-2(4) Dimensional Requirements for an existing structure that encroaches 3.2 feet into the 15 feet required side yard setback. Property is zoned R-20. Case No. ZBA-866 2. On a motion by Mr. DeVita and seconded by Mr. Lewis the Board voted to GRANT the variance request relating to the survey map dated December 12, 2011 for an 11.8 ft. setback for an attached screened porch on the west side of the house and a 6.3 ft. variance request on the east side of the house for an attached garage. The variance is granted for those 2 sides for the existing structure only. All ayes There being no further business before the Board, it was properly moved by Mr. DeVita and seconded by Mr. Lewis to adjourn the meeting. All ayes. 7:50 P.M. Executive Secretary Chairman