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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 1 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. 2 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. 3 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. 4 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 5 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 6 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. 7 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: 8