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8.22.16 Agenda Package NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON, NORTH CAROLINA 28403 Pete DeVita, Chairman Joe Miller, Vice-Chairman Raymond Bray, Board Member Andrew Barnhill, Board Member Chad McEwen, Board Member Henry “Hank” Adams, Alternate Brian Prevatte, Alternate Colin Tarrant, Alternate Chris O’Keefe, Planning & Inspections, Director – Sharon Huffman, County Attorney AGENDA August 23, 2016, 5:30 PM I. Call Meeting to Order (Chairman Pete DeVita) II. Approval of Meeting Minutes from May 24, 2016 Meeting May Attendees: Pete DeVita, Joe Miller, Raymond Bray, Hank Adams, Brian Prevatte III. Regular Items of Business 1. Case ZBA-909 – Design Solutions, applicant, on behalf of Cazzata, LLC, property owner, is requesting a 15’ variance from the 75’ setback required from a conservation resource per New Hanover County Zoning Ordinance Section 55.1-5: Additional Performance Controls. The property is located at 1317 Futch Creek Road. 2. Case ZBA-910 – Porter’s Neck Quality of Life Association is appealing determinations made by New Hanover County Planning and Inspections staff pertaining to two properties owned by the Porters Neck Homeowners Association located at 8344 and 8540 Bald Eagle Lane. 3. Case ZBA-911 – Secof Construction Company, Inc. is appealing determinations made by New Hanover County Planning and Inspections staff pertaining to a property owned by Coastal Carolina Car Wash, LLC located at 6100 Castle Hayne Road. IV. Other Business V. Adjourn 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, May 24, 2016. Members Present Members Absent Pete DeVita -Chairman Adam Barnhill Joe Miller - Vice- Chairman Chad McEwen Raymond Bray Colin Tarrant - Alternate Hank Adams -Alternate Brian Prevatte -Alternate Ex Officio Members Present Ben Andrea, Executive Secretary Sharon Huffman, Deputy County Attorney Denise Brown, Clerk The meeting was called to order at 5:30P.M. by the Chairman, Mr. Pete DeVita. Mr. DeVita 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 Official approval of the minutes from the meeting held on April 26, 2016. Vote was unanimous. The Chairman then swore in County Staff Mr. Ben Andrea. FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS: Wanda and Billy Southerland, applicants and property owners, are requesting a variance from the access requirements for structures per Section 61.2 of the Zoning Ordinance. The property is located at 5404 Peden Point Road. The property is zoned R-15, Residential District. Case ZBA-907. Mr. Andrea states Mr. Billy & Ms. Wanda Southerland, applicants and property owners, are requesting a variance from the requirements of Section 61.2 of the Zoning Ordinance that limits the total number of structures that can be accessed from one access easement, in order to develop another residential structure for a family member at 5404 Peden Point Road. The subject property already contains two single family detached residential structures. Today in representation of the applicants is Mr. Gary Southerland, son of the property owners. Mr. Andrea stated the property was recorded in 1995 as a “Lot 4” of the subdivision plat for Billy B. Southerland (MB 35 Page 109) which contains approximately 1.64 acres. Mr. Andrea states the property is accessed by an existing 30’ wide access easement that also serves other parcels. Currently, a total of 7 residential structures are on five different parcels of land and are using the one easement for their sole ingress and egress. 2 Mr. Andrea states the parcels utilizing the same easement are located at 5214, 5316, 5318, 5320, 5338, 5404, and 5406 Peden Point Road. The proposed new lot and structure would be the eighth residential structure to utilize the existing 30’ wide access easement for sole means of ingress and egress to Peden Point Road. Mr. Andrea states based on the language in the New Hanover County Zoning Ordinance Section 61.2-1, subsection 3, the proposed new parcel of land would increase the degree of an existing nonconforming situation. Mr. Andrea contends the applicant presents there are no opportunities of a new access easement possible to serve the proposed new structure; Mr. Andrea states the current easement is not best suited for widening to conform of a design for a local street. In addition, the access would need an easement or right-of-way with at least a width of 45’ and a 22’ wide improved paved travel way to serve all parcels. Mr. Andrea states access to Peden Point is from the East with easement access to gain entry to the residences on the road. Mr. Andrea states a 24’ pavement width is required for local streets per county subdivision regulations. The current easement is not maintained by the NC DOT; the applicant states he’s currently maintaining the road as needed. Mr. Andrea states currently the access easement is the only access for five lots. Mr. Andrea states staff is concerned of residents’ safety with multiple families living on parcels with limited access entry points in case of weather catastrophes or unforeseen health issues whereby EMS is required and access is limited due to entry point conditions. Mr. Andrea states the easement is 30’ wide whereby both sides are 15’. Mr. Andrea states his research data regarding Peden Point was from the NC DOT website. Mr. Andrea states all the homes currently were permitted for residential use at different times however; all requirements should’ve been adhered per county ordinance and easement provisions. Mr. Andrea states primarily the zoning staff are focused on setback configures regarding structures; not primarily on easement use rules. Mr. Andrea states currently the structures are non-conforming due to the amount of homes utilizing the easement access; any additional homes would increase non-conformity. Mr. Andrea states all homes whether mobile or stick built are considered residential structure. Mr. Andrea states there is a street connection ordinance however, primarily required in provisions for community subdivisions. In addition, Mr. Andrea states a secondary access could be explored with an access easement. Mr. Andrea states to add structures to a parcel the minimum size of the lot is 30,000 square feet. Mr. Andrea presented several aerial photos of the proposed subdivided plat and access easement location. Section 61.2-1 of the county’s Zoning Ordinance dictates access requirements for structures: 61.2-1 Every structure hereafter erected or moved shall be on a lot adjacent to a road as defined in Section 23-86, or to a right-of-way or easement which was platted and recorded prior to 1969. The following are exempt from the requirements of this Section: (1/5/81) (8/2/82). 1) Lots of record prior to the adoption of this Ordinance that have sufficient area to meet the minimum requirements of the district in which they are located: 2) Structures that are to be used in conjunction with a bona fide farming operation; and, 3) Building lots having access over a private driveway or easement at least thirty (30) feet in width (5/1/89) to a road as defined in Section 23-86, provided the driveway or easement is an easement appurtenant to three (3) or fewer lots and the easement is solely owned by a lot owner or in common by three (3) or fewer lot owners. The Chairman swore in Mr. Gary Southerland, Mr. David Christopher and Ms. Sharon D’Andrea. 3 Mr. Gary Southerland, (son of applicants/owner). Mr. Southerland states he is speaking on behalf of his parents who were unable to attend today’s meeting due to health issues. Mr. Southerland states he’s seeking a variance with the intent of allowing his daughter and son-in-law access to land in pursuit of placing a home at the property site of 5404 Peden Point Road. Mr. Southerland states his parents, a brother and his family are adjoining neighbors to the subject property. Mr. Southerland states the family obtained property ownership in the mid 1990’s. Mr. Southerland addressed emergency access of the easement by Emergency vehicles stating his father has received medical care without incident of access to the residence. Mr. Southerland states with the structures that are currently on the easement it would be impossible to widen the road; the entire area has been developed over the past years. Mr. Southerland states the road is not well traveled, primarily he has maintained the road over the years with the assistance of various neighbors. Mr. Southerland states his son-in- law has verbally agreed to maintain the road once his home is on the property. Mr. Southerland states the land was divided and approved by the regulated ordinance in 1995. Mr. Southerland states he does not recall the allowance in memory to allow all seven structures on the road however, it’s his belief adding an additional home will not create a problem for the community. Mr. David Christopher- Neighbor (5316 Peden Point Road) – Mr. Christopher states he questions what type of home will be allowed on the subject site and how many residents are allowed on one parcel. Mr. Christopher states he purchased his home in 2013 and spoke with the permitting staff and he was told and additional structure to his property would not be within the county’s regulation. Mr. Christopher states he purchased the home due to the size of the lot and the quietness of the location however, adding another home will increase road traffic use. Mr. Christopher states there are structures already in existence with occupants whom in the past have displayed uncomfortable behavior for the community. Mr. Christopher states he is open to exploring ideas on widen the current road for all to access. Ms. Sharon D’Andrea-Neighbor (5210 Peden Point Road) – Ms. D’Andrea states she purchased her home in 1999 and her son purchased the home from her in 2013 for financial reasons. Mr. D’Andrea states she is concerned of additional sewer lines, septics and homes in the area. Ms. D’Andrea states it’s very difficult to have trucks for home repairs and maintenance work to turn in exiting the road. Ms. D’Andrea states the road is utilizing a lot and to have an additional home and residents is concern for over-crowding the small section of community. Ms. D’Andrea states the applicant has a mobile home adjacent to his home; renters bring heavy traffic to the access easement. Ms. D’Andrea states the community is changing with the allowance of the current tenants in the homes the applicants owns; she’s concerned of the property value to her home and states she’s worked extremely hard to maintain her residence and landscaping for her and her son. Mr. Gary Southerland, (son of applicants/owner) (rebuttal) - Mr. Southerland states there has not been additional homes added to the site since Mr. Christopher purchased his home. Mr. Southerland states there are older mobile homes on the parcels rented to Section 8 recipients. Mr. Southerland states the renters are apart of his parents subsided income. Mr. Southerland states he’s not sure if all the septic/sewer wells are up to county code as it states presently due to the changes of setbacks and distances that have been updated over the years; some of the neighbors have septic systems in the front yard. Mr. Southerland states if an additional home is allowed he will ensure all regulations are met to current county codes as to a new septic system would need to implement to service the new home. Mr. Southerland states the renter’s activity or status is not a subject matter for the board to hear. Ms. Sharon Huffman, Deputy County Attorney – Ms. Huffman states all questions and concerns regarding the case are to be directed to the board members only. PUBLIC HEARING CLOSED. 4 BOARD DISCUSSION: Mr. Miller inquired as to safety vehicles accessibility to the entry point of Peden Point also, Mr. Miller inquired as to staff’s concerns regarding additional homes added to the easement. Mr. Miller made reference of current homes on the easement being in violation of use. Mr. Miller stated adding structures to lots are subject to the county ordinance and lot size requirements. Mr. Miller inquired as to the type of home to be added should the variance be allowed. Mr. Miller states this case is challenging for the board as to there is currently a non- conforming community with an applicant requesting additional structure. Mr. Bray confirmed as to the correct addresses listed on the access easement is verified for accuracy. Mr. Bray inquired of the actual entry point located for travelers to access Peden Point due to recent Google Map data show some area has been cleared. Mr. Barnhill inquired as to the width of the road. Mr. Bray inquired as to the various types of residential structures currently utilizing the easement. Mr. Bray inquired as to what measures are in place for emergency vehicle access utilizing the road. Mr. Bray inquired as to how would septic and sewer be implemented for a new structure on the lot. Mr. DeVita inquired what steps was utilized to allow the current seven homes access to the easement entry point. Mr. DeVita clarified as to the allowance is 3 residential structures allowed on a non- state maintained easement. Mr. DeVita inquired has all measures been explored in contacting a developer in upgrading the road to a NC DOT street. Mr. Barnhill inquired to the width of the easement. Mr. Adams inquired as to how far is the access easement stating per research on Google Earth shows a continuous depth with limited views. Mr. Adams states he’s uncomfortable with adding another residence to the road; access of septic, sewer or emergency vehicles may be problematic in the future. Mr. Adams states he does not see an un- necessary hardship to the land for the applicant to pursue of a variance. Mr. Prevatte inquired as to the size of subject property also Mr. Prevatte states there are many roads in the county that are privately maintained and hard for residents to update to street status due to financial cost. BOARD DECISION: On a motion by Mr. Bray and seconded by Mr. Adams the Board voted 3 ayes, and 2 nays to DENY the variance, to allow an additional structure per Section 61.2 of the Zoning Ordinance. The Board cited the following conclusions for the motion: 1) It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the requirement under Section 61.2-1(3)that limits the total number of parcels that may be accessed from one access easement to a three or fewer, that unnecessary hardship would result. This conclusion is based on the following FINDINGS OF FACT:  The literal terms of the ordinance would not allow an additional structure to be constructed on the subject property. 2) It 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. This conclusion is based on the following FINDINGS OF FACT:  The subject property is land-locked and only accessible by a 30’ wide access easement that already serves seven structures. 3) It is the Board’s conclusion that the hardship does result from actions taken by the applicant or the property owner. This conclusion is based on the following FINDINGS OF FACT: 5  The hardship results from the desire to build an additional structure on the property for family to reside in. Other options exist such as adding an addition on to the existing structure. 4) It is the Board’s conclusion that, if granted, the variance will not be consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT:  Granting the variance would not be consistent with the spirit and intent of the structure access requirements of the Zoning Ordinance and would increase the degree of an existing nonconforming situation.  Granting the variance would increase the hazards to public safety by allowing an additional residence to be constructed for which the only access that could serve as ingress and egress for the public and emergency responders is by way of an unimproved access easement. SECOND CASE BEFORE THE BOARD WAS AS FOLLOWS: Dr. Lloyd Rothschild, applicant, on behalf of LRR No. 2 Properties, LLC, property owner, is requesting a 15’ variance from the 30’ front yard requirement under Section 51.4 of the Zoning Ordinance. Dr. Rothschild is proposing to build a 2260 sq. ft. home with an attached garage located at 3109 Rivendell Place. The property is zoned R-20S. Case ZBA-908. Mr. Andrea provided opening staff stating the property was recorded in 1995 as “Lot 47” of the subdivision plat for Phase II of Demarest Landing contains approximately 0.48 acres. Mr. Andrea states the property is an irregular shaped parcel, partially due to the meandering right-of-way of Rivendell Place, which features a unique turn-around in front of the subject parcel. Mr. Andrea states that Demarest Landing is zoned R-20S, and therefore the structure setbacks are subject to the minimum yard requirements of Section 51.4-2 of the Zoning Ordinance. Mr. Andrea states on the right side of the parcel are the parking pad which does not require adherence to the setback guidelines. Mr. Andrea made referenced to a neighboring residence at 3108 Rivendell Place; whereby in 2003 a variance of 12’ to the 30’ front yard requirement under Section 51.4 of the Zoning Ordinance. Mr. Andrea states currently the home at 3108 Rivendell Place has a setback of 18’ from the property line. Mr. Andrea states there are other residences that have been granted variances for similar issues. There is a unique design to the neighborhood whereby a variance may be requested to adhere to the ordinance. Mr. Andrea states this area does not qualify as a performance district whereby allowing flexibility in structure setbacks. Mr. DeVita states case mail outs were submitted to notify surrounding neighbors of the meeting. In addition; the Architect Review Board has been contacted by the applicant. Mr. Andrea presented visual slide of the proposed building site plan for the site. The Chairman then swore in Dr. Lloyd Rothschild. Mr. Rothschild, LRR No 2 Properties, LLC, (petitioner and property owner) – Dr. Rothschild stated that LRR No. 2 Properties is a real-estate company that he owns in conjunction to constructing the proposed home and for tax relief. Dr. Rothschild states he’s requesting a 15’ variance to the 30’ front yard requirements in the R-20S county ordinance. Dr. Rothschild states he has contacted the Architectural Review Board for clearance as to his choice of home design. Dr. Rothschild states the ARB requires one half of the front elevation of the house has to be a porch. Dr. Rothschild states research of impervious verses pervious requirements are on-going however, Dr. Rothschild states there is a strict policy regarding impervious for the neighborhood i.e. driveway appearance. Dr. Rothschild states the curb is narrowing the design of the home which should not impact the traffic. Dr. Rothschild states there are five homes in the community and he is committed to preserving trees. 6 Dr. Rothschild states doing his research there were six variances located per record. Dr. Rothschild states Demarest Landing requires a minimum of 2800’ for proposed homes in the community. Dr. Rothschild graciously thanked staff for its prompt assistance in providing policy procedures, documents regarding variance guidelines as it reflects to adhering New Hanover County Zoning Ordinance in preparation for today’s hearing. Ms. Sharon Huffman, Deputy County Attorney – Ms. Huffman states the petitioner and the property owner are of the same persons whereby Mr. Rothschild could speak on behalf of the today’s hearing. PUBLIC HEARING CLOSED. BOARD DISCUSSION: Mr. DeVita inquired as to clarification of the property owner and applicant in relationship to this case hearing; also; inquired was the Home Owners Association notified of today’s meeting. Mr. DeVita inquired as to where would the setback be taken from and could the applicant start building from the back of the lot. Mr. DeVita states he’s familiar with the neighborhood and admired the developer’s design of the community whereby he recalls the board approving past variances. Mr. Bray inquired of other residents in Demarest Landing granted variances as well as impervious permitting requirements. Mr. Miller states due to the design of the community a precedence of variances have been required to meet county ordinance. BOARD DECISION: On a motion by Mr. Miller and seconded by Mr. Bray the board voted unanimously to approve the variance request, drawing the following conclusions: 1) It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 30’ front yard requirement under Section 51.4 of the Zoning Ordinance, that an unnecessary hardship would result. This conclusion is based on the following FINDINGS OF FACT:  The applicant has explored different combinations of site layouts, configurations, and structure sizes and would not be able to build a home of similar size and layout to other homes in the neighborhood. 2) It 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 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:  The subject property is an unusual shape due to the shallow lot depth from the meandering street right-of-way in front of the property and the unique turn-around in serving as the cul de sac.  Moving the structure rearward on the lot would require removal of significant vegetation that provides buffering and environmental benefits to the adjoining property owner and neighborhood. 3) It is the Board’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 a self-created hardship). This conclusion is based on the following FINDINGS OF FACT:  The property owner was not involved in the design of the lot, street, and turn-around island. 7  Various lot layout configurations were explored and none resulted in a design that could adhere to the setback requirements. 4) It 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 justice is achieved. This conclusion is based on the following FINDINGS OF FACT:  Similar variances have been approved for setback reductions in the Demarest Landing neighborhood.  Reduction in the front yard setback by 15’ poses no harm to public safety or welfare and actually increases the sense of community in the neighborhood.  Substantial justice will be achieved for the property owner while maintaining the spirit and intent of the front yard setback regulation for which the variance is granted. MEETING ADJOURNED. _________________________________ _________________________________ Executive Secretary Chairman Date: _____________ ZBA-909, 8/16 Page 1 of 2 VARIANCE REQUEST ZONING BOARD OF ADJUSTMENT August 23, 2016 CASE: ZBA-909, 8/16 PETITIONER: Design Solutions, applicant, on behalf of Cazzata, LLC, property owner REQUEST: 15’ variance from the required 75’ setback from a conservation resource as per Section 55.1 of the New Hanover County Zoning Ordinance LOCATION: 1317 Futch Creek Road PID: R02920-001-014-000 ZONING: R-20, Residential District PETITIONER’S REQUEST: Cindee Wolf of Design Solutions, on behalf of Claudio Saviano of Cazzata, LLC, is requesting a 15’ variance from the 75’ setback from a conservation resource required by Section 55.1 of the New Hanover County Zoning Ordinance on a 0.68 acre parcel located at 1317 Futch Creek Road. The petitioner contends that the required 75’ setback, in addition to the peculiar lot shape and the other required setbacks, would impose a hardship for buildable area on the subject site. To offset any potential impairment to the tidal creek, the petitioner is proposing additional stormwater controls including on-site retention or a percolation area sufficient to control at least the first 0.75” of runoff that will originate from all of the impervious surfaces on the property. BACKGROUND AND ORDINANCE CONSIDERATIONS: The subject property was recorded in 1987 as “Lot 73” of the subdivision plat for Section 1-C of Creekside at Porters Neck Plantation and contains approximately 0.68 acres. The property is a somewhat shallow and irregular shaped parcel, due to the mean high water line that serves as the rear property boundary line. Section 55.1 of the Zoning Ordinance identifies important conservation resources within New Hanover County, and regulates development in and around these resources by creating a Conservation Overlay District (COD). Section 55.1-5 classifies the different conservation resources into groups, and prescribes specific setbacks from these resources for structures and impervious surfaces. The conservation resource adjacent to the subject site is “Salt Marsh”, which is classified as Group 2 for residential uses. As such, Section 55.1-5 requires a 75’ setback from the edge of this resource type: GROUP 2 (A) Conservation Space Setbacks - All structures and impervious surfaces shall be setback from the conservation space, if any, whether the space is located on the parcel or on an adjacent parcel, a distance of at least 75 feet. (B) Retention of Runoff - In addition to designing the site to control stormwater from a 10 year storm, on- site retention or percolation areas shall be required for the entire parcel sufficient to control, at a minimum, the first .75 inch of runoff that will originate from all impervious surfaces anticipated to be on the site upon final development. The specified amount of runoff from impervious surfaces shall be disposed of by ZBA-909, 8/16 Page 2 of 2 percolation into the soil, evaporation, transpiration, or other methods of treatment or handling acceptable to the County Engineering Department. The purpose of the Conservation Overlay District (COD), as stated in Section 55.1-1 of the Zoning Ordinance, is to protect important environmental and cultural resources within the County. For the Salt Marsh resource group, special consideration is also given to stormwater management, as detailed in subsection (B) above. In addition to the county’s COD regulations, the development of the subject property is also subject to CAMA development regulations, including a 30’ buffer landward of the normal high water line, as well as a 30% impervious surface coverage limitation for areas of the site between the 30’ buffer and the area 75’ landward of the normal high water line. BOARD OF ADJUSTMENT POWER AND DUTY: The Board of Adjustment has the authority to authorize variances from the terms of the Zoning Ordinance where, due to special conditions, a literal enforcement of the regulations would result in unnecessary hardship. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with the Zoning Ordinance. A concurring vote of four-fifths (4/5) of the voting members of the Board shall be necessary to grant a variance. A variance shall not be granted by the Board unless and until the following findings are made: 1. Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. 2. The hardship results from conditions that are peculiar to the 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. 3. 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 a self-created hardship. 4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. ACTION NEEDED (Choose one): 1. Motion to approve the variance request based on the findings of fact (with or without conditions) 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to deny the variance request based on specific negative findings in any of the 4 categories above. 400 8901 8709 8708 8704 8706 1213 8625 8629 8636 1201 1133 8710 8705 8703 1208 8901 8702 1023 1301 1129 11258708 1019 1033 8710 8903 8905 8905 1211 1427 1215 8912 8706 8705 1423 8712 1209 8904 1311 89031401 1413 8628 1214 8708 8633 1021 1409 1307 1212 8908 8709 8632 8640 8637 8700 8644 1117 1029 1210 1217 1025 8707 8648 1016 1121 1017 8910 1419 1218 8702 8704 8906 8624 1429 1323 8712 8705 8902 1441 8900 1111 1426 1405 8709 1225 1317 Sources: Esri, HERE, DeLorme, USGS, Intermap, increment P Corp.,NRCAN, Esri Japan, METI, Esri China (Hong Kong), Esri (Thailand),MapmyIndia, © OpenStreetMap contributors, and the GIS User CommunityE500Feet Vicinity Map New Hanover County Zoning Board of Adjustment 1317 Futch Creek RoadVariance Request: 15' from 75' COD Structure Setback RequirementApplicant: Design SolutionsOwner: Cazzata, LLC August 23, 2016 Case ZBA-909 Subject Property FUTCH CREEK M A H O G A N Y 8901 1133 1129 8710 8904 1311 8903 1401 8708 1307 1323 8712 8902 8900 1317 E 100 Feet Aerial Map New Hanover County Zoning Board of Adjustment 1317 Futch Creek RoadVariance Request: 15' from 75' COD Structure Setback RequirementApplicant: Design SolutionsOwner: Cazzata, LLC August 23, 2016 Case ZBA-909 R-20 R-20 Sources: Esri, HERE, DeLorme, USGS, Intermap, increment P Corp.,NRCAN, Esri Japan, METI, Esri China (Hong Kong), Esri (Thailand),MapmyIndia, © OpenStreetMap contributors, and the GIS User CommunityE100Feet Zoning Map New Hanover County Zoning Board of Adjustment 1317 Futch Creek RoadVariance Request: 15' from 75' COD Structure Setback RequirementApplicant: Design SolutionsOwner: Cazzata, LLC August 23, 2016 Case ZBA-909 AE 0.2 PCT ANNUAL CHANCE FLOOD HAZARD Sources: Esri, HERE, DeLorme, USGS, Intermap, increment P Corp.,NRCAN, Esri Japan, METI, Esri China (Hong Kong), Esri (Thailand),MapmyIndia, © OpenStreetMap contributors, and the GIS User CommunityE100Feet Flood Hazard Area Map New Hanover County Zoning Board of Adjustment 1317 Futch Creek RoadVariance Request: 15' from 75' COD Structure Setback RequirementApplicant: Design SolutionsOwner: Cazzata, LLC August 23, 2016 Case ZBA-909 NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON, NORTH CAROLINA 28403 Pete DeVita, Chairman Joe Miller, Vice-Chairman Chad McEwen, Board Member Raymond Bray, Board Member Andrew Barnhill, Board Member Henry “Hank” Adams, Alternate Brian Prevatte, Alternate Colin Tarrant, Alternate Chris O’Keefe, Planning & Inspections, Director – Sharon Huffman, County Attorney ORDER TO GRANT/DENY A VARIANCE – Case ZBA-909 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on August 23, 2016 to consider application number ZBA-909, submitted by Design Solutions, applicant, on behalf of Cazzata, LLC, property owner, a request for a variance to use the property located at 1317 Futch Creek Road in a manner not permissible under the literal terms of the ordinance and having heard all the evidence and arguments presented at the hearing, makes the following FINDINGS OF FACT and draws the following CONCLUSIONS: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 75’ structure and impervious surface setback required from a Group 2 conservation resource as required under Section 55.1-5 of the Zoning Ordinance, that an unnecessary hardship would result/would not result. (It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.) This conclusion is based on the following FINDINGS OF FACT:  __________________________________________________________________________.  __________________________________________________________________________.  __________________________________________________________________________.  __________________________________________________________________________. 2. It is the Board’s conclusion that the hardship of which the applicant complains results/does not result from unique circumstances related to the subject 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:  __________________________________________________________________________.  __________________________________________________________________________.  __________________________________________________________________________.  __________________________________________________________________________. 3. It is the Board’s conclusion that the hardship did/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 a self-created hardship.) This conclusion is based on the following FINDINGS OF FACT:  __________________________________________________________________________.  __________________________________________________________________________.  __________________________________________________________________________.  __________________________________________________________________________. 4. It is the Board’s conclusion that, if granted, the variance will/will not be consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT:  __________________________________________________________________________.  __________________________________________________________________________.  __________________________________________________________________________.  __________________________________________________________________________. THEREFORE, on the basis of all the foregoing, IT IS ORDERED that the application for a VARIANCE from New Hanover County Zoning Ordinance from Section 55.1 to allow a _____’ variance from the 75’ structure and impervious surface setback requirement be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 23rd day of August, 2016. ____________________________________ Pete DeVita, Chairman Attest: ____________________________________ Benjamin Andrea, Executive Secretary to the Board ZBA-910, 8/16 Page 1 of 6 APPEAL OF ZONING DETERMINATIONS ZONING BOARD OF ADJUSTMENT August 23, 2016 CASE: ZBA-910, 8/16 APPELLANT: Porter’s Neck Quality of Life Association LOCATION: 8344 and 8540 Bald Eagle Lane PIDs: R03712-001-009-000 and R03805-005-016-000 ZONING: R-20S, Residential District SUMMARY OF APPEAL: The Porter’s Neck Quality of Life Association (PNQLA) is appealing five determinations that were issued in a June 10, 2016 letter. In summary, PNQLA is appealing the following determinations: 1. The facilities at 8344 and 8540 Bald Eagle Lane are legal nonconforming Community Boating Facilities as they were established prior to the requirement of obtaining a Special Use Permit. 2. The conveyance of the right to use each facility in the Protective Covenants of Porters Neck Plantation suffices the spirit and intent of the New Hanover County Zoning Ordinance. 3. Each site is considered a residential use for the purposes of landscaping and buffering requirements. 4. The kayak racks on each site are considered accessory structures and not “dry stack storage of boats”. 5. The rental of the kayak racks by members of Porters Neck Home Owners Association is not considered a commercial use. STAFF SUMMARY: The Porter’s Neck Quality of Life Association sent a letter dated May 16, 2016 to the attention of Chris O’Keefe, Director of New Hanover County Planning and Inspections indicating concern of alleged zoning violations at the two subject properties, 8344 and 8540 Bald Eagle Lane, and listing several requests. Taking into consideration the longstanding disagreement between how PNQLA members and planning and zoning staff have interpreted and administered relevant zoning ordinance requirements for the two subject sites, a letter dated June 10, 2016 was sent in response from Mr. O’Keefe and provided formal determinations that could be appealed to the Zoning Board of Adjustment. Constructive notice signs were also placed on each of the subject sites for 10 consecutive days, providing notice to anyone with standing that determinations had been issued and could be appealed. PNQLA is appealing five determinations thoroughly explained in the June 10, 2016 letter from Mr. O’Keefe. To expound on each of the five determinations that are being appealed: 1. The facilities at 8344 and 8540 Bald Eagle Lane are legal nonconforming Community Boating Facilities as they were established prior to the requirement of obtaining a Special Use Permit. Both of the subject properties were recorded in Section B of Porters Neck Plantation in Map Book 5, Page 23 of the New Hanover County Register of Deeds in June 1950. The lots, also known as 11A (8344 Bald Eagle Lane) and 35A (8540 Bald Eagle Lane) of Section B of Porter’s Neck Plantation were historically used for pedestrian and boat access to the water by holders of easements of ingress and egress to the subject lots. Title to the lots were retained by Champion McDowell Davis, one of the four original owners of Porters Neck Plantation, until his death ZBA-910, 8/16 Page 2 of 6 and were then conveyed to the trustees of the Champion McDowell Davis Charitable Foundation. In 1988, the Porters Neck Company acquired the subject properties, with the properties remaining subject to existing easements of ingress and egress. Porters Neck Company also acquired additional real estate of approximately 800 acres with intention to develop a golf course community whose residents would be permitted to utilize the water access lots. A Master Plan for Porters Neck Plantation was approved in May 1989 by the New Hanover County Planning Board, and included the subject lots as open space to serve the community. Porters Neck Homeowners Association, Inc. was created in connection with the golf course community development and took ownership of the subject lots from Porters Neck Company in November 1992 through a deed recorded at Book 1629, Page 1359. The right to use the subject properties was conveyed to residents of Porters Neck Plantation through the Protective Covenants of Porters Neck Plantation, dated June 13, 1991 and recorded at Book 1555, Page 0957. Easements to use the subject properties were conveyed to residents of PN Creekside Homeowners Association in November 2000 (Book 2054, Page 450) and to PN Bishops Park Home Owners Association, Inc. in September 2002 (Book 3430, Page 706). Both Creekside and Bishops Park were developed by Porters Neck Company, Inc. Additionally, some property owners along the west side of Bald Eagle Lane in Porters Neck Plantation Section E also have easements to use the subject properties. In August 1992, Porters Neck Homeowners Association was issued a CAMA major development permit for improvements to the subject properties, including a driveway, small parking area, fixed dock, and a floating dock on Lot 8344 Bald Eagle Lane, and all of the above improvements plus a boat ramp and gazebo at 8540 Bald Eagle Lane. The definition for Community Boating Facilities was originally added to the Zoning Ordinance in July 1980 (Case A-37). In July 1992, the Planning Board first heard options presented by staff for revisions to the Zoning Ordinance pertaining to boating facilities (Case A-239). Three options were presented, and in August 1992 the Planning Board recommended “Option B” be approved by the Board of Commissioners. The item was scheduled to be heard by the Board of Commissioners at their September 1992 meeting, but postponed until their October 1992 meeting at which the Board approved “Option B”. “Option B” of the text amendment changed the zoning ordinance’s definition for Community Boating Facility to include service to “five or more” residential lots and now required a special use permit for community boating facilities, whereas before the amendment they were permitted by-right. A new section, Section 72-37, was added to the zoning ordinance and set forth five supplemental regulations for Community Boating Facilities. The amendment also added a definition for Private Residential Boating Facility, defining the use similarly to a Community Boating Facility but to serve less than five residential lots. Private Residential Boating Facilities would now be allowed as a by-right use in certain zoning districts. Additional supplemental regulations were also added to the Zoning Ordinance for commercial marinas by the approved text amendment. The earliest record indicating Planning and Zoning Staff’s determination that the subject properties are nonconforming Community Boating Facilities is found in a January 26, 1993 letter from Ann Hines, New Hanover County Chief Zoning Enforcement Officer, to Richard Donaldson with the Porters Neck Company. Ms. Hines stated that both of the sites were under construction and considered Community Boating Facilities, but became non- conforming projects due to the ordinance change in October 1992 that created the requirement for a special use permit for such facilities. In summary, Staff concludes that the sites were historically used Community Boating Facilities and approved for development as such prior to the adoption of the requirement for a special use permit for Community Boating Facilities that took effect in October 1992, making each of the sites legal, nonconforming uses. ZBA-910, 8/16 Page 3 of 6 2. The conveyance of the right to use each facility in the Protective Covenants of Porters Neck Plantation suffices the spirit and intent of the New Hanover County Zoning Ordinance. Since its addition into the Zoning Ordinance in 1980, the definition for Community Boating Facility has always included the language that “the right to use such facility must be conferred by easement appurtenant to the residential lot it is intended to serve”. An “easement appurtenant” is defined as an easement that benefits one parcel of land, known as the dominant tenement, to the detriment of another parcel of land, known as the servient tenement. Easements appurtenant are attached to the land and are transferred automatically when the servient or dominant tenement is sold to a new owner. Staff concludes that the intention of the language in the definition of Community Boating Facility is to ensure that the right to use such a facility benefits the owner of the property for which the facility is intended to serve, and that right is transferred to any future owner of the property. As detailed above, rights to use the subject properties have been transferred to members of Porters Neck Plantation through their 1991 restrictive deeds and covenants (which were amended in 2016), declaring each property owner a member of the Porters Neck Plantation Homeowners Association and entitling them to use the streets, utilities, and common areas of Porters Neck Plantation. Rights to use the subject properties are conveyed by easements to members of Bishops Park and Creekside homeowners associations. In summary, Staff concludes that the right to use the subject properties conveyed to members of the Porters Neck Plantation Homeowners Association through the Protective Covenants for Porters Neck Plantation is harmonious with the spirit and intent of the language in the Zoning Ordinance definition for Community Boating Facility. 3. Each site is considered a residential use for the purposes of landscaping and buffering requirements. Porter’s Neck Quality of Life Association contends that the subject sites are considered nonresidential uses for the purposes of determining landscaping and buffering requirements, and that the sites are not in compliance with the landscaping and buffering requirements for nonresidential uses adjacent to residential zoning districts or uses. As described in Section 62.1-4 of the Zoning Ordinance, the purposes of buffer strips are to buffer adjoining and competing land uses. As such, a non-residential use of land is required to provide a buffer strip along the perimeter of a site that is adjacent to a residential use. However, this section does not require buffers between similar land uses, such as non-residential abutting non-residential, or residential abutting residential. Planning and Zoning Staff have historically considered neighborhood amenities such as pools, club houses, sports facilities, and other recreational or open space amenities that serve a neighborhood to be ancillary residential uses, rather than commercial uses. As such, buffering requirements per Section 62 have traditionally not been applied to these types of facilities, including the subject properties. However, other landscaping requirements do apply for the facility at 8540 Bald Eagle Lane, as the site hosts a parking lot. Parking lot perimeter landscaping and streetyard landscaping is required per Section 62.1-5 of the Zoning Ordinance. In an effort to ensure compliance with these standards and resolve the longstanding contention from Porter’s Neck Quality of Life Association that the site at 8540 Bald Eagle Lane is not in compliance, Zoning Staff requested that an updated landscaping plan be submitted with the recent building permit application for the kayak racks on the site submitted in December 2015. Zoning Staff approved a waiver request for the parking lot landscaping requirement pursuant the authority granted in Section 62-1-5(3) of the Zoning Ordinance, and approved the remainder of the landscaping plan as compliant with the applicable landscaping requirements. ZBA-910, 8/16 Page 4 of 6 In summary, Staff concludes that each of the sites are considered ancillary residential uses for Porters Neck Plantation and therefore not considered non-residential uses for determining buffering requirements. Additionally, Staff concludes that the parking lot at 8540 Bald Eagle Lane is in compliance with the applicable landscaping requirements through a granted waiver and approved landscaping plan. 4. The kayak racks on each site are considered accessory structures and not “dry stack storage of boats”. In 2015, Porters Neck Homeowners Association petitioned to the NC Department of Environmental Quality’s Division of Coastal Management (DCM) for a modification to an existing CAMA major permit No. 117-15 for improvements to the subject sites including building kayak racks on each site as well as improved landscaping on the site at 8540 Bald Eagle Lane and access steps to the water on the site at 8344 Bald Eagle Lane. The request was approved by DCM and such approval was indicated in a Letter of Refinement dated January 22, 2016. Subsequently, a building permit application (16-240) was filed in December 2015 for the development proposed in the CAMA major permit modification request. In February 2016, Zoning Staff approved the building permit application, indicating that the kayak racks would need to be set back at least 5’ from the side property lines, as required for accessory structures per Section 63.2 of the Zoning Ordinance. Accessory structures fall under the definition of Accessory Building or Use in the Zoning Ordinance: Accessory Building or Use - A use or structure of a nature customarily incidental and subordinate to the principal use or structure. Buildings and structures are also defined in the Zoning Ordinance: Structure and/or Building - Anything constructed or erected within a fixed location on the ground, or attached to something having a fixed location on the ground. The terms building and/or structure shall be construed to include porches, decks, carports, garages, sheds, roof extensions, overhangs extending more than 2’, and any other projections directly attached to the structure and/or building. Staff’s determination is that the kayak racks on each of the subject sites is considered a structure per the definition of Structure and/or Building, and also that they are incidental and subordinate to the principal use of each of the sites, which is for water access and recreation. However, Porters Neck Quality of Life Association contends that the kayak racks are considered “dry stack storage of boats”. The definition for Dry Stack Storage was added to the Zoning Ordinance in January 2008 (Case A-366) after a Planning Board work session and public hearing in response to a text amendment request by a county resident. Prior to the adoption of the amendment, the Zoning Ordinance implied that dry stack storage could be allowed as accessory to a commercial marina. The impetus of the amendment from the county citizen was concern about large dry stack storage facilities proliferating residential areas, thus seeking an amendment to disallow dry stack storage at commercial marinas located in residential zoning districts. Ultimately, a modified version of the amendment was recommended for approval and approved by the Board of Commissioners. In addition to the definition for dry stack storage, the amendment also added the use to the Table of Permitted Uses in the Zoning Ordinance and allowed the use by-right in B-1, I-1, and I-2 zoning districts if the dry stack storage is a stand-alone warehouse use, and if the dry stack storage is accessory to a marina, the use is permitted by-right in the B-2, I-1, I-2, PD, and RFMU zoning districts, and by special use permit in the residential districts and the B-1 district. The following is the definition of Dry Stack Storage that was added to the Zoning Ordinance in 2008: ZBA-910, 8/16 Page 5 of 6 Dry Stack Storage – Vertical storage of boats in a rack system, providing for storage of at least 2 layers of boats. The Zoning Ordinance already had a definition for Boat that was added in April 1984 (Case A-107) in response to concern about the proliferation of “floating homes”. The definition for boat has remained unchanged: Boat - A vessel or watercraft of any type or size specifically designed to be self-propelled, whether by engine, sail, oar, or paddle or other means, which is used to travel from place to place by water. While a literal read of the definitions for Dry Stack Storage and Boat could be interpreted that any structure that provides the vertical storage for 2 or more layers of kayaks, canoes, stand-up paddleboards, or other similar small personal watercraft are considered Dry Stack Storage, such an interpretation was not the intent of the definition and supplemental regulation of dry stack storage facilities added to the Zoning Ordinance in 2008. In summary, Staff determines that the kayak racks are considered accessory structures and not dry stack storage for the purposes of the county’s zoning regulations. 5. The rental of the kayak racks by members of Porters Neck Home Owners Association is not considered a commercial use. The Porter’s Neck Quality of Life Association contends that the rental of spaces on the racks on each of the subject properties for storage of canoes and kayaks by residents in Porters Neck Plantation, Bishops Park, and Creekside constitutes a commercial use and therefore should not be allowed to occur based on the language in the definition of Community Boating Facility: Community Boating Facility - A private, non-profit boating facility including a dock, pier and/or launching ramp on property having water frontage; the use of which is intended to serve five or more residential lots or residential units. The right to use such a facility must be conferred by an easement appurtenant to the residential lot it is intended to serve. No commercial activities of any kind shall be allowed within the confines of the facility. The language “no commercial activities of any kind shall be allowed within the confines of the facility” was added with the original definition in 1980, with the same amendment (Case A-37) that added a definition for Commercial Marina. The definition of Commercial Marina included language describing commercial activities as “providing marine services, including, but not limited to, retail sales for fuel, repairs, convenient food stuffs, boats, engines, and accessory equipment”. In determining whether the rental of the kayak storage spaces is considered a commercial use or not, Staff took into consideration the fact that the opportunity to rent a storage space is limited to residents of the neighborhoods that have rights to use the subject properties, including Porters Neck Plantation, Creekside, and Bishops Park. Secondly, Staff compared the storage space rental to similar noncommercial rental activities in residential settings, such as the rental of a boat slip by residents of a neighborhood that has a community boating facility. Additional similar noncommercial storage rental situations including renting a storage locker at a community pool, or the rental of a banquet room in a community clubhouse. In summary, Staff concludes that the rental of space on the kayak storage racks to persons in Porters Neck Plantation, Bishops Park, and Creekside does not constitute a commercial activity. ZBA-910, 8/16 Page 6 of 6 BOARD OF ADJUSTMENT POWER AND DUTY: The Zoning Board of Adjustment has the authority to hear and decide appeals where it is alleged by the appellant that there is error in any decision made by the zoning administrator or other administrative officials in the carrying out or enforcement of any provision of the Zoning Ordinance. A majority of the members of the Board shall be necessary to reverse, wholly, or partly, any such decision. Vacant seats and disqualified members are not considered in calculating majority. An appeal from the decision of the Zoning Board of Adjustment shall be subject to review by the Superior court by proceedings in the nature of certiorari. Any petition for review by the Superior Court shall be filed with the Clerk of Superior Court within 30 days after the decision of the Board is filed in the Office of the Clerk to the Board, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the Clerk or Chairman of the Board at the time of the hearing of the case, whichever is later. ACTION NEEDED (Choose one): 1. Motion to uphold all or some of the zoning determinations issued by staff. 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to overturn any or all of the zoning determinations issued by staff. 431 407 406 438 416 414 434 409 436 425 404 415 428 413 409 427 411 413 417 408 430 410 407 418 424 420 401 417 403 419 423 432 421 419 422 405 400 421 426 402 87008650 854385458602 1800 1801 8600 8420 8604 8500 8417 8449 1804 8404 8340 8408 8412 8413 1805 8537 1803 1806 8440 8341 8533 8507 8504 8448 8400 8333 8401 8329 8336 1807 8332 8445 8521 8509 8429 8441 8608 8524 8516 8444 8528 8529 8423 8424 8536 8505 8541 8436 8520 8512 8508 8540 8409 8405 8432 1800 8345 18061804 8513 1802 87038701 1803 8344 8437 8325 8517 8511 Sources: Esri, HERE, DeLorme, USGS, Intermap, increment P Corp.,NRCAN, Esri Japan, METI, Esri China (Hong Kong), Esri (Thailand),MapmyIndia, © OpenStreetMap contributors, and the GIS User CommunityE500Feet Vicinity Map New Hanover County Zoning Board of Adjustment 8344 and 8540 Bald Eagle LaneAppeal of Zoning DeterminationsAppellant: Porter's Neck Quality of Life AssociationOwner: Porters Neck Homeowners Association August 23, 2016 Case ZBA-910 BALD EAGLE 8328 8404 8340 8408 8412 8400 8401 8336 8332 8344 E 100 Feet Aerial Map New Hanover County Zoning Board of Adjustment 8344 and 8540 Bald Eagle LaneAppeal of Zoning DeterminationsAppellant: Porter's Neck Quality of Life AssociationOwner: Porters Neck Homeowners Association August 23, 2016 Case ZBA-910 BALD EAGLE 8600 8605 8604 8608 8536 8532 8601 8540 8612 E 100 Feet Aerial Map New Hanover County Zoning Board of Adjustment 8344 and 8540 Bald Eagle LaneAppeal of Zoning DeterminationsAppellant: Porter's Neck Quality of Life AssociationOwner: Porters Neck Homeowners Association August 23, 2016 Case ZBA-910 ZBA-911, 8/16 Page 1 of 3 APPEAL OF ZONING DETERMINATIONS ZONING BOARD OF ADJUSTMENT August 23, 2016 CASE: ZBA-911, 8/16 APPELLANT: Secof Construction Company, Inc. LOCATION: 6100 Castle Hayne Road PID: R01109-004-003-000 ZONING: R-15, Residential District SUMMARY OF APPEAL: Secof Construction Company, Inc. is appealing the two determinations that were issued in a June 2, 2016 letter from Planning and Zoning Staff. In summary, Secof Construction Company is appealing the following determinations: 1. The continuation of the nonconforming use of a mobile home park is not permitted. 2. The denial of a building permit application (Project ID #16-1424) based on the above determination. STAFF SUMMARY: The subject property historically hosted a mobile home park, which was known as the W.J. Davis Trailer Park; the park was approved in 1966, and an expansion to the park was approved in 1968 for an additional 8 mobile home sites in addition to the 11 mobile homes that were on the site at the time of approval. The total of 19 approved mobile homes over the approximate 1.42 acres equated to a density of 13.4 units per acre on the approved 1968 expansion. The expansion approval in 1968 took place before the adoption of the county’s Mobile Home and Travel Trailer Park ordinance on March 2, 1970, which was later amended on April 6, 1987. On February 16, 1987, the county’s Zoning Ordinance was amended (Case A-143) to include language limiting density for mobile parks to 2.5 units per acre for areas not classified as Transition by the 1986 Land Use Plan, which classified the subject property as “Community”. The adoption and update to the Mobile Home and Travel Trailer Park Ordinance and amendment to the Zoning Ordinance made the mobile home park on the subject property nonconforming in regards to density, parking, buffering, street lights, and fire hydrants. In August 2003, a plan for a revision to the Davis Mobile Home Park was submitted and proposed a total of 7 mobile homes on approximately 0.75 acres, which was less acreage than the approved 1968 plan, and the proposed revision was approved on September 23, 2003. The 2003 approved plan reduced the degree of nonconformity of the trailer park in regards to density, as the density of 7 units on 0.75 acres equated to 9.3 units per acre, down from the 13.4 units per acre on the approved 1968 plan. A review of historic aerial imagery confirms that mobile homes were on the site in 2003, and therefore the mobile home park continued as a nonconforming mobile home park with the 2003 approved plan revision. On October 9, 2014, Mr. Murphy met with Planning and Zoning Staff Sam Burgess, Senior Planner, and Christine Bouffard, Zoning Compliance Official, to inquire as to whether the mobile home park could still be developed pursuant to the 2003 plan revision. At the meeting, Mr. Burgess provided a verbal indication to Mr. Murphy that the mobile home park could continue as a nonconforming use. ZBA-911, 8/16 Page 2 of 3 In May 2015, Secof Construction applied for a building permit (Project ID #16-1424) to install a mobile home on the subject property and included a site plan displaying a total of 9 mobile homes on approximately 0.75 acres. On May 27, 2016, Mr. Murphy again met with Planning and Zoning Staff Sam Burgess and Christine Bouffard. During that meeting, a question came up again as to whether the mobile home park could continue as a nonconforming use. Current Planning and Zoning Supervisor Ben Andrea was invited to join the meeting to help conclude an answer to that question. After that meeting, staff’s determination that the nonconforming mobile home park use could not be continued was indicated in June 2, 2016 letter from Ben Andrea, along with the determination that the building permit application would be denied as the application was based on a noncompliant site plan. The determination that the nonconforming mobile home park had been discontinued was based on information that the use had been discontinued for more than 180 consecutive days. During the May 27, 2016 meeting, Mr. Murphy indicated that the site had not hosted a mobile home for approximately 5 years. A review of historical aerial imagery shows that the all mobile homes had been removed from the subject property sometime between June 2006 and October 2007, and the site has remained vacant. As such, Staff concluded that the use had been discontinued per Section 46 of the Zoning Ordinance: Section 46: Abandonment and Discontinuance of Non-Conforming Situations 46-1: When a non-conforming use is discontinued for a consecutive period of one hundred eighty (180) days, the property involved may thereafter be used only for conforming purposes. (8/17/81) 46-2: For purposes of determining whether a right to continue a non-conforming situation is lost pursuant to this section, all of the buildings, activities and operations maintained on a lot are generally to be considered as a whole. For example, the failure to rent one (1) apartment in a non-conforming apartment building or one (1) space in a non-conforming mobile home park for one hundred eighty (180) days shall not result in the loss of the right to rent that apartment or space thereafter so long as the apartment building or mobile home park as a whole is continuously maintained. But if a non- conforming use is maintained in conjunction with a conforming use, discontinuance of a non- conforming use for the required period shall terminate the right to maintain it thereafter. And so, if a mobile home is used as a non-conforming use on residential lot where a conforming residential structure also is located, removal of that mobile home for one hundred eighty (180) days terminates the right to replace it. (11/21/81) Section 41 defines a non-conforming use and non-conforming situation: 41-1: Unless the context clearly indicates otherwise, the terms defined below are used in this Article in the following manner: (1) Non-Conforming Situation - A situation that occurs when, on the effective date of this ordinance or any amendment hereto, an existing lot or structure, or use of an existing lot or structure does not conform to one or more of the regulations applicable to the district in which the lot or structure is located. (2) Non-Conforming Lot - A lot existing at the effective date of this ordinance or any amendment hereto that cannot meet the minimum lot area requirements of the district in which the lot is located. (3) Non-Conforming Use - A non-conforming situation occurs when property is used for a purpose or in a manner made unlawful by the permitted use regulations applicable to the district in which the property is located. ZBA-911, 8/16 Page 3 of 3 (4) Non-Conforming Building or Structure (Dimensional Non-Conformity) - A non-conforming situation that occurs when the height, size or minimum floor space of a building or the relationship between an existing building and the required yard setbacks does not conform to the regulations applicable to the district in which the property is located. (5) Non-Conforming Project - Any structure, development or undertaking that is incomplete at the effective date of this ordinance and would be inconsistent with any regulation applicable to the district in which it is located if completed as proposed or planned. (9/7/76) In conclusion, it is Staff’s determination that the non-conforming mobile home park use had been discontinued for at least 180 consecutive days, and therefore the subject property may only be used for conforming purposes. BOARD OF ADJUSTMENT POWER AND DUTY: The Zoning Board of Adjustment has the authority to hear and decide appeals where it is alleged by the appellant that there is error in any decision made by the zoning administrator or other administrative officials in the carrying out or enforcement of any provision of the Zoning Ordinance. A majority of the members of the Board shall be necessary to reverse, wholly, or partly, any such decision. Vacant seats and disqualified members are not considered in calculating majority. An appeal from the decision of the Zoning Board of Adjustment shall be subject to review by the Superior court by proceedings in the nature of certiorari. Any petition for review by the Superior Court shall be filed with the Clerk of Superior Court within 30 days after the decision of the Board is filed in the Office of the Clerk to the Board, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the Clerk or Chairman of the Board at the time of the hearing of the case, whichever is later. ACTION NEEDED (Choose one): 1. Motion to uphold all or some of the zoning determinations issued by staff. 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to overturn any or all of the zoning determinations issued by staff. 2/28/2006 Aerial Image – Source: Google Earth 6/30/2006 Aerial Image – Source: Google Earth 9/30/2007 Aerial Image – Source: Google Earth 6/25/2008 Aerial Image – Source: Google Earth 4 3 4 5 8 11 10 522 524 206 112111 102 204 208 107 110 526 115 104 113 210 109 202 528 106 212 108 106105 6008 6004 6200 6025 6101 6115 6016 5990 5805 6301 6206 6120 6000 6005 6000 6011 5908 5917 5915 4007 6200 6000 6118 6000 3913 6100 3916 3909 6001 3928 6112 6301 6000 6117 6010 3901 6101 6201 3912 6300 6015 6000 6205 6217 5800 5813 5901 4009 6017 6000 5907 5900 5807 5905 6111 6129 5916 5900 6304 6215 6214 5900 6004 5900 5801 6208 6008 6107 6205 6117 6201 Sources: Esri, HERE, DeLorme, USGS, Intermap, increment P Corp.,NRCAN, Esri Japan, METI, Esri China (Hong Kong), Esri (Thailand),MapmyIndia, © OpenStreetMap contributors, and the GIS User CommunityE500Feet Vicinity Map New Hanover County Zoning Board of Adjustment 6100 Castle Hayne RoadAppeal of Zoning DeterminationsAppellant: Secof Construction Company, IncOwner: Coastal Carolina Car Wash, LLC August 23, 2016 Case ZBA-910 CASTLE HAYNE BLOSSOM 6008 6004 6200 6101 6016 6120 6000 6005 6011 5908 5917 6200 6000 6118 6000 6100 6001 6000 6117 6010 6101 6015 6000 6000 6000 6129 5916 6107 6117 6201 E 100 Feet Aerial Map New Hanover County Zoning Board of Adjustment 6100 Castle Hayne RoadAppeal of Zoning DeterminationsAppellant: Secof Construction Company, IncOwner: Coastal Carolina Car Wash, LLC August 23, 2016 Case ZBA-911