Minutes April 2016MINUTES
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, April26,2OL6.
Members Present
Joe Miller, Vice -Choirmon
Andrew Barnhill
Chad McEwen
Raymond Bray
Brian Prevatte, Alternate
The meeting wos called to order ot 5:30P.M. by the Choirmon, Mr- Joe Miller.
Mr. Miller 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. The appellants have thirty days in which to appeal any decision made by
the Board to Superior Court.
FIRST ORDER OF BUSINESS
Officiol opprovol of the Morch 22, 2016 minutes. Vote wos unonimous.
The Chairman then swore in County Staff Mr. Ben Andrea
FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS:
Wilmington Builders, applicant, on behalf of Noelle Holdings, LLC, property owner, is requesting a 13'variance
from the 20' minimum buffer width required per Section 62 of the Zoning Ordinance, and a 30.57' variance to
the setback required per Section 60.3 ofthe Zoning Ordinance. The property is located at 2 Silva Terra Drive and
zoned R-15, Residential District. Case ZBA-905.
Mr. Andrea presented stating the property owners recently purchased the subject property at 2 Silva Terra Drive
with intentions to repurpose the existin8 residences on the property for office use. The residential district zoning
of the property office is not permitted nor zoned for office or business use. The applicant is requesting approval
of a variance with the intent to pursue a rezoning classification for the site. The existing layout of the property
would not be compliant with the setback and buffering requirements for a non-residential structure that abuts a
residential use. Mr. Andrea states the applicant is requesting a setback of nearly 3i. ft. to the nearly 4g ft. side
yard setback required to the nearly L7' range from the 24' bufler width required by the zoning ordinance. Mr.
Andrea states the property consists of about a half an acre (0.45 acre). Mr. Andrea states that the R-15,
Residential District zoning was applied back in the early 1970's. Mr. Andrea states the applicant has requested a
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Members Absent
Pete Devita, Choirmon
Hank Adams, Alternate
Colin Tarrant, Alternate
Ex Officio Members Present
Ben Andrea, Executive Secretary
Sharon Huffman, Deputy County Attorney
Denise Brown, Clerk
rezoning of the parcel from R-15 to Conditional O&l (Office and lnstitutional) which will be held at the next
scheduled Planning Board meeting. Mr. Andrea states in the surrounding area there is classification of B-1
zoning which was annexed in the City jurisdiction. Mr. Andrea states the location of the existing driveway
extends to Silva Terra Drive and is the only point of entry. Mr. Andrea states a site plan was presented with the
application; the existing home is approximately 17' off the property line, the driveway is 10' wide, there is a
strip of grass separating the property of approximate 7'. Mr. Andrea states that with the rezoning from a
residential district to a commercial district and use, additional setback and buffer requirements would apply. Mr.
Andrea states the structure setbacks are governed by the county's ordinance language in Section 60.3; referred
as the "setback foctor". Mr. Andrea states the applicant's variance request calculates to 30.67'. Mr. Andrea
states the buffer requirements are to be half of the building setback.
Mr. Andrea states the width of the buffer should equal 23.84' per Section 6z.t-4|2l. Mr. Andrea states with the
potential rezoning of the residence the applicant will not meet the proper setbacks of the district. Mr. Andrea
states the alternative would be for the applicant to demolish the home and rebuild a structure to conform to the
setbacks. Mr. Andrea as the comprehensive plan is developed the staff is recognizing areas most suited for
residential use however, Mr. Andrea states the staff is committed to the spirit and intent of buffers
requirements being met.
Mr. Andrea states the ordinance states there is flexibility on how a buffer can be created; not simply vegetation
however, 100% opacity must be met. Mr. Andrea states the WMPO (Wilmington Metropolitan Planning
Organization) staff has concerns of the width of the driveway. Mr. Andrea reference the width of the driveway
and the regulations would be governed by NC DOT driveway permit process and the applicant.
Mr. Andrea presented several photos of the site.
Section 60.3 of the Zoning Ordinance requires that structures within non-residential zoning districts that abut
residential uses or platted lots that are zoned residential be set back a distance based on the building's height
multiplied times a setback factor in Table 50.3:
The required minimum setbocks for structures locoted within Commerciol, Office ond lnstitutionol ond
lndustriol Districts obutting rcsidentiol uses on/or plotted lots on residentiolly zoned property sholl be
calculated from Toble 60.3 utilizing the following formulos. Where the ddjocent residentiol district is
occupied by non-residentiol uses, the minimum setbock sholl be twenty (20)feet.
The existing structure on the property is 17.33' in helght and would be required to have a side yard setback of
47.67' based on the 2.75 side yard setback factor. Section 60.3 also stipulates an applicable minimum side yard
setback of 25'. The structure is set back on 17' from the side property line; therefore a variance of 30.67' is
requested.
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B-1 2.7 5 25',i.73 30'
2.75 30',3.7 i',
o&t 2.75 z5 3.7 3 30'
t-1 i.08 35',40
i.49 40'5.14 45',
3.08 i5 40'
DISTRICf
SIDE YARD
SETBACK
FACTOR
MINIMUMSIDE
YARD SETBACK
IN ALL CASES
REAR YARD
SEIBACK
FAC|OR
MINIMUM REAR
YARD SETBACK
IN ALL CASES
B-2 5)
4.3 3
A-1
Similarly, the buffer requirements of Section 62.t-412]| cannot be met based on the existing condition of the
subject property. This section requires that the base width of the required buffer is 50% of the required setback:
Width of oll buller strips - The buffers sholl hove o bose width equol to ot leost 50% of the required
setbock. ln oll coses the bose of the buffer sholl be equol to o greoter thon 20 feet. Where o utility
eosement occupies o portion of the buffer, sufficient buffer must be provided outside the utility eosement
to meet the required opocity stondords.
The Vice-Chairman swore in Mr. J.C. Hearn's, PLLC, and Mr. Steve Niemeyer.
Mr. l.C. Heorn, PtlC, is representing both applicants; Wilmington Builders & Noelle Holdings, LLC, (Stokley
Fomily Trustl in today's variance request proceedings. Mr. Hearn states he is requesting a variance on behalf of
his client who recently purchased the property at 2 Silva Terra Drive for the purpose of an administration facility
for the staff at Wilmington Builders, lnc. Mr. Hearn states the zoning ordinance was implemented with particular
property of landscaping however, with the mixed pockets of residential and business use the applicants states
the area is not large enough to maintain a residential structure. Mr. Hearn states it would be costly and an
unnecessary hardship to demolish the house and further implement a structure unlike the surrounding
landscape. Mr. Hearn states the applicant has not contributed to the structure nor the setback hardship. Mr.
Hearn states the Carolina beach corridor is changing in nature and the client would like to bring the structure
into compliance. Mr. Hearn states should the variance be granted he affirms it would be with the intent and
spirit of the county's zoning ordinance. Mr. Hearn states the applicant would heed to staff and the board's
recommendation on buffer request to the site as required for compliance. Mr. Hearn states the property would
be of substantial amount for re-sale; and the applicant would not want to use the site as rental as to the
revenue would be on lower end due to the area. Mr. Hearn states the highest use of the site would be to use the
site during business hours which would be good for public safety and substantialjustice would be achieved. Mr.
Hearn states the parking would remain the same; no additions would be added also a traffic assessment has not
been done to his knowledge. Mr. Hearn is suggesting an 8' box shadow fence to the heavy vegetation line. Mr.
Hearn states the applicants did nothing to create the hardship to use the facility and will need to pursue further
discussion at the Planning Board meeting and the County Commissioners. Mr. Hearn states he's at the mercy of
the ordinance and would appreciate some leniency on how to implement a fence to the property. Mr. Hearn
inquired as to if the structure is destroyed due to a fire or hurricane would a conditioned if applied be subject to
the newly built structure.
Mt. Steve Niemeyer, Wilmington Builders - Mr. Niemeyer states they are more than willing to be 1OO%
compliant with staffs recommendation on what can be done at the site in keeping with the county's ordinance
regarding the size and width of fencing at the site. Mr. Niemeyer states vegetation would be implemented and if
the driveway needs to be relocated or moved over they are more than willing to comply. Mr. Niemeyer states
there is a drainage swale at the site for water flow.
Ms. Shdrcn Hulfmon, Depuv County Attomey - Ms. Huffman states unless the applicant tears down the
building and replace it would not be worthy of pursuing a rezoning wlthout obtaining a variance. Ms. Huffman
states the variance approval is necessary to comply with the setback and buffer requirements if the site is used
as an O&l use. Ms. Huffman states because the applicant purchased the property with the intent of using for a
business use per legislature would not be labeled as a self-created hardship. Ms. Huffman advised the board to
come to a decision of the applicant's request of a varlance and information presented regarding setbacks.
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The required side yard setback calculated as 47.67', the base width ofthe buffer should be 23.84'. The location
of the existing driveway leaves approximately only 7' wide that could be utilized for a buffer. Mr. Andrea states
should the Board consider a motion to approve the variance request, it's recommended a condition of the
approval be contingent on the approval of the pending rezoning petition (Case 2-952).
Ms. Huffman states should the structure be destroyed not by the applicant an approved variance would be
applied to the new structure. Ms. Huffman states if the applicant demolish the building the variance would not
apply; the applicant would need to meet the existing setbacks. Ms. Huffman reminded the board that they are
granting two separate variances (1. Buffer Setbacks; 2. Structure Setbacks).
PUBLIC HEARING CLOSED.
BOARD DISCUSSION:
Mr. McEwen inquired as to the hardship of the applicant's request in pursuing a variance also; Mr. McEwen
stated should the variance be pursued prior to re-zoning of the district. Mr. McEwen inquired to the location of
the property line. Mr. Bray inquired of the home residence status and the level of concrete debris on the site.
Mr. Bray inquired of the drainage issue on the site as well as possibly relocating the driveway. Mr. Bray inquired
as to the owner of the adjacent owners. Mr. Bray inquired as to the applicant's potential use of the facility if a
variance is granted also, Mr. Bray asked of additional future plans for the site. Mr. Bray inquired on a traffic
assessment to the area plans. Mr. Miller inquired as to opposition to the case by the community. Mr. Miller
stated is the applicant creating a hardship by asking for a variance based on the pursuit of the requested use.
Mr. Miller stated there's not much in viewing aerial photos for spacing in terms of vegetation and alluded to
fencing implementation. Mr. Prevatte stated the driveway cannot be widening due to the two-way traffic at the
site; also, Mr. Prevatte inquired to the terms of the variance as it may reflect should the property be sold or
redeveloped in thefuture. Mr.Barnhill inquired ofadditional parking plansforthe site.
BOARD DECISION:
On a motion by Mr. Bray and seconded by Mr. Barnhill the Board voted unanimously to approve a 30.67'
variance to the 47.67' setback required per Section 60.3 of the Zoning Ordinance with the condition that the
variance to the structure setback would remain in effect until the existing structure is voluntary removed for
redevelopment of the subject site, which would be subject to the regulations in place at time of development
proposal. On a motion passed by Vice-Chairman Miller and seconded by Mr. McEwen, the Board voted
unanimously to approve a 16.84' variance from the 23.84' minimum buffer width required per Section 62 of the
zoning Ordinance, with the same condition as the first motion in addition to the condition that an 8' tall
shadowbox fence must be installed from the front corner of the bullding to the tree line at the rear of the
property, and two offset rows of vegetation shall be installed from the existing vegetation in the rear of the
property to the front property line. The Board cited the following conclusions for both motions:
1) lt is the Board's conclusion that, if the applicant complies with the literal terms of the ordinance,
specifically the requirement under Section 60.3 that requires non-residential structures in an O&l zoning
district adjacent to residential uses or residentially zoned property to have a side yard setback of 2.75
times the building height, and also the requirement in Section 62.1-4 that requires the buffer to be a base
width of at least half of the required setback, that unnecessary hardship would result. (tt shotl not be
necessory to demonstrdte thdt, in the obsence ol the voriance, no reosonable use can be mode of the
property.)fhis conclusion is based on the following FINDING OF FACT:
lf the applicant complied with the literal terms of the ordinance for setback and buffer requirements
for nonresidential uses abutting property used or zoned for residential, that the existing structure
would have to be demolished and rebuilt to meet the ordinance requirements for use as a non-
residential use.
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2) lt is the Board's conclusion that the hardship of which the applicant complains results from unique
circumstances related to the subject property, such as location, size, or topography. (Hardships resulting
from personal circumstances, as well os hordships rcsulting from conditions thdt dre common to the
neighborhood or the generol public, may not be the basis lor granting o varionce). This conclusion is based
on the following FINDINGS OF FACT:
The property hosts a residential structure that conforms to the setback requirements of the R-15
zoning district but would not conform to the setback requirements of the Office and lnstitutional
zoning district for which the applicant is pursuing to accommodate an office use.
3) lt is the Board's conclusion that the hardship did not result from actions taken by the applicant or the
property owner, (The oct oI putchasing prcperty with knowledge thot circumstances exist thdt may justity
the grdnting of o varionce sholl not be regorded as a self-creoted hardship.) This conclusion is based on
the following FINDINGS OF FACT:
The hardship did not result from actions taken by the applicant but rather the different setback and
buffering zoning regulations that would be applied as part of the property being rezoned from R-15,
Residential, to O&1, Office and lnstitutionalzoning district.
4) lt is the Board's conclusion that, if granted, the variance will be consistent with the spirit, purpose, and
intent of the ordinance, such that public safety is secured, and substantial iustice is achieved, This
conclusion is based on the following FINDINGS OF FACT:
The utilization of an 8' shadowbox fence from the rear of the property to the front corner of the
building, in addition to two off-set rows of vegetation, will provide buffering consistent with the
spirit and intent of the zoning ordinance while maintaining the residential character of the subject
site and vicinity.
SECOND CASE BEFORE THE BOARD WAS AS FOLLOWS:
Scarafoni Associates, lnc., applicant and property owner, is requesting 40'variances from the 100'building
setback requirement per 55.1-3(1) and 50'automobile parking area setback required per Section 55.1-3(a)(B) of
the Zoning Ordinance. The property is located at 195 Porters Neck Road. Case 284-906.
Mr. Andrea provided opening staff summary stating the Special Highway Overlay District fSHODl language was
added to the New Hanover County's Zoning Ordlnance in 1986, and subsequent zoning actions were approved
to apply the SHOD to certain significant highway corridors in the county, including the Market Street corridor
from the Pender county line to Bayshore Drive, North college Road and l-40, and the t-140 corridor.
Mr. Andrea states area in the vicinity of the subject site changed significantly since the Special Highway Overlay
District (SHOD) was applied to this area on November 5, 1990 (Case 2-399). According to the petitioner, the NC
Department of Transportation extended the rights-of-way for Market Street and porters Neck Road into the
subject parcel to accommodate improvements to the intersection of Porters Neck Road and Market Street. As
such, the current parcel configuration ls significantly limited in buildable area due to the parking area and
building setbacks imposed by the SHOD regulations. Mr. Andrea states the applicant is requesting a variance to
locate buildable space 40' closer to the right-of-way. Mr. Andrea states there are instances in the county where
buildable space is closer to the right-of-way than the county's ordinance would allow however, he makes
reference these chanBes were most likely due to widen of highway project. Mr. Andrea states it's not unusual to
seek a variance prior to submitting a site plan for development especially if applicant(s) are trying to propose a
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structure that will accommodate potential sites. Mr. Andrea states currently, the applicant has not presented a
site plan, and street scape landscaping would be required by the zonlng ordinance.
Mr. Andrea presented various photos of the site.
Putpose - The purpose ol the Speciol Highwoy Overloy District (SHOD) is to protect the noturol beouty
ond scenic visto exist olong lnterstote Highwoys ond other speciolly designoted roodwoys thot serve os
mojor occess woys ond gotewoys into New Honover County. Protection of these roodwoys is importont
ond necessary to mointain ond preserve the County's undisturbed roodsides thot ore chorocterized by
their noturol woodlands and open spoces. The continued protection of these scenic highwoys is olso o
voluoble osset to the County's tourism economy ond enhonces the ottroctiveness ol the areo for trode
ond investment.
lf a property is wholly or partially within the sHOD, the additional regulations of Section 55.4 apply to the parcel,
including screening and enclosure requirements, lot coverage maximums, requirements for smaller signs, and
more stringent building and parking area setbacks.
Section 55.4-3(1) dictates that setback requirements for buildings for parcels within the SHOD:
All non-residentiol buildings ond occessory uses sholl set bock no less thon 700 feet from the right-of-woy
of the designoted highwoy. No building sholl be locoted less than 25 feet from ony property line.
However, the setbock may be reduced for those buildings, occessory uses ond off-street porking by o
moximum of 25% if the project provides odditionol plontings olong the right-of-woy. At a minimum,
these plontings sholl consist of one deciduous or evergreen tree ot leost 2.5"-3" coliper for every 40 feet
of rood frontoge. These streetscope trees must be selected ond plonted in occordonce with Section 62 of
the Ordinonce. Plontings must be locoted in the first ten feet of lond odjocent to ond porollel to the right-
of-woy except thot plontings moy be moved outside this oreo if it is determined thot overheod power
lines would interfere with the trees' noturol growth. (3/9/95)
No vehiculor or equipment porking except outomobile porking sholl be permitted in the yord oreo
odjocent to the designoted highwoy. All outomobile porking sholl be set bock ot leost on hundred (100)
feet from the right-of-woy of the designoted highwoy if such highwoy is on interstote or thoroughfore
with controlled occess. Other US ond NC numbered highwoys sholl require o fifty (50) feet setbock for
outomobile porking.
The Vice-Chairman then swore in Mr. Oean Scarafoni.
Mr. Scaruloni (petitioner ond prcperty ownetl states to his knowledge there is not a variance for the adjacent
First Citizens Bank and Wendy's Restaurant location near his property stating there are in compliance with the
SHOD regulation. Mr. Scarafoni states there is a 50 ft. vegetated area within the setback and there is 100 ft.
from the building. Mr. Scarafoni states the right-of-way in front of these parcels were in compliance until the NC
DOT retained a portion of the property along Market Street and Porters Neck Road. Mr. Scarafoni states his
seeking to bring consistency to the parking and building envelope to match the surrounding parcels. Mr.
Scarafoni states he purchased the property 20 yrs. ago and NC DOT has restricted access to no curb cut on
Market Street and Porters Neck Road. Mr. Scarafoni states with the alteration from NC DOT he states a hardship
has been created that affects his parcel. Mr. Scarafoni states he is committed to bring the parcel in compliance
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Section 55.4-1 of the Zoning Ordinance describes the purpose of the Special Highway Overlay District (SHOD):
Section 55.4-3(4) (B) describes the requirements for setbacks for vehicular parking areas:
according to the SHOD regulation. Mr. Scarafoni states currently he has maintained the 50 ft. buffer, landscape
drafts with all the design changes of the location. Mr. Scarafoni states he's commented to green space
preservation. Mr. Scarafoni he is currently the owner of Porters Neck Shopping Center and would like to bring
the site at 195 Porters Neck Road consistent with the neighboring out parcels. Mr. Scarafoni is requesting an
additional 10 ft. from the edge of Market Street and a proposed 50 ft. from the building envelope.
PUBLIC HEARING CLOSED.
BOARD DISCUSSION:
Mr. Miller inquired as to the potential change of buildable space how would traffic be impacted. Mr. Miller
inquired to what type of development will be constructed; also inquired does the variance need to be requested
at this time or once an establishment has been submitted for the location. Mr. Miller stated the applicant
displayed legitimate concerns on preserving green space in and near the site. Mr. Barnhill alluded to the Porters
Neck Rd. area with a widen highway due to implementing of new gas station. Mr. McEwen inquired as to the
importance of the scenic vista lanBuage in the SHOD and does the applacant propose additional trees. Mr.
McEwen inquired as to the boundary line for the parcel and a total of requested square footage. Mr. Bray
inquired of a proposed site plan for the site.
2l lt is the Board's conclusion that the hardship of which the applicant complains results from unique
circumstances related to the subrect property, such as location, size, or topography. (Hardships resulting
from personal circumstances, as well as hardships resulting from conditions that are common to the
neighborhood or the general public, may not be the basis for granting a variance.) This conclusion is based
on the following FINDINGS OF FACT:
As part of its improvements to the intersection of Market Street and porters Neck Road, the Nc
Department of rransportation extended its right-of-way approximately 50' into the east side of the
parcel and approximately 35' into the south side of the parcel.
The improvements are completed bud these changes had a profoundly negative impact on the
parcel by reducing its buildable area when the Special Highway Overlay District building and parking
area setbacks are applied, and restricting both ingress and egress.
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BOARD DECISION:
On a motion by Mr. Raymond Bray and seconded by Mr. Chad McEwen the board voted unanimously to approve
the variance request, drawing the following conclusions:
1) lt is the Board's conclusion that, if the applicant complies with the literal terms of the ordinance,
specifically the requirement under Section 55.4-3(1) that requires buildings on parcels within the Special
Highway Overlay District to have a front setback of at least 100', and Section 55.4-3(4) (B) that requires
vehicular parking areas to be setback at least 50'from the front property line, that an unnecessary
hardship would result. (lt shall not be necessary to demonstrate that, in the absences of the variance, no
reasonable use can be made of the property,) This conclusion is based on the following FINDINGS OF
FACT:
The current setback requirements for the Special Highway Overlay District unduly limit the buildable
area of the subject parcel.
3) lt is the Eoard's conclusion that the hardship did not result from actions taken by the applicant or the
property owner. (The act of purchasing property with knowledge that circumstances exist that may justify
the granting of a variance shall not be regarded as self-created hardship.) This conclusion is based on the
following FINDINGS OF FACT:
The change in the property lines and the corresponding setbacks were the result of action taken by
the NC Department of Transportation to make improvements to the intersection of Porters Neck
Road and Market Street.
MEETING ADJOURNED.
4) lt is the Board's conclusion that, if granted, the variance will be consistent with the spirit, purpose, and
intent of the ordinance, such that public safety is secured, and substantial lustice is achieved. This
conclusion is based on the following FINDINGS OF FACT:
The pavement line and building line setbacks from the Market Street curb will be consistent with the
adjacent and comparable outparcels in Porters Neck Center (First Citizens Bank and Wendy's). The
green space/buffer area between the pavement lines and Markets Street curb will also be consistent
with the adjacent and comparable outparcels in Porters Neck Center. These parcels also conform to
the Special Highway Overlay District.
Bringing the subject property's setbacks in line with the setbacks of the adjacent parcels will result
in a more uniform look along Market Street.
Executive 5e retary hairman
qDate:
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