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Minutes May 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, May 24,20L6. Mem b rs Present Members Absent Pete DeVita -Chairman .Joe Miller - Vice- Choirman Raymond Bray Ha nk Adams -Alternate Brian Prevatte -Alternate Adam Barnhill Chad McEwen Colin Tarrant - Alternate Ex Offi io Members Present Ben Andrea, Executive Secretary Sharon Huffman, Deputy County Attorney Denise Brown, Clerk The meetinq wos colled to order ot 5:30P.M. by the Choirmon, Mr. Pete Devito. 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 Officiol approvol of the minutes from the meeting held on April 26, 2016. Vote wos unonimous 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 67.2 of the Zoning Ordindnce. 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 1.995 as a "Lot 4" of the subdivision plat for Billy B. Southerland (MB 35 Page 1.09) 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. 1 Mr. Andrea states the parcels utilizing the same easement are located al 5274, 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 wideninB to conform of a design for a local street. ln 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. ln 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: The Chairman swore in Mr. Gary Southerland, Mr. David Christopher and Ms. Sharon D'Andrea 2 61.2-7 Every structure hereofter erected or moved shall be on o lot odjocent to o rood os delined in Section 23-86, or to o right-of-woy or eosement which wos plotted ond 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 odoption of this Ordinonce thot hove sufficient oreo to meet the minimum requirements of the district in which they ore locoted: 2) Structures thot ore to be used in conjunction with o bona fide forming operotion; ond, 3) Building lots hoving access over o privote driveway or easement at leost thirty (30) feet in width (5/1/89) to o rood os defined in Section 2i-86, provided the drivewoy or eosement is on eosement oppurtenont to three (3) or fewer lots ond the eosement is solely owned by o lot owner or in common by three (i) or fewer lot owners. ML Gory Southerland, (son of dppliconts/owner). Mr. Southerland states he is speakinE 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. Mt. Ddvid Christopher- Neighbor (5376 Peden Point Rodd) - 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. M' Shoron D'Andrea-Neighbor (5270 Peden Point Road) - Ms. D'Andreo stotes 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 soi. Mr. Gory Southerlond, (son ol dpplicants/owner) (rebuttol) - 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. Shorcn 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. 3 BOARD DISCUSSION: Mr. Miller inquired as to safety vehicles accessibility to the entry point of Peden Point also, Mr. Miller inquired as to staffs 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. Eray 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 financialcost. 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) lt 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) lt is the Eoard'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. This conclusion is based on the following FINDINGS oF FACT: 3) lt 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: 4 The subject property is land-locked and only accessible by a 30'wide access easement that already serves seven structures. 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) lt 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 sit u atio n. 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 FOLTOWS: 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 ll 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 a'dhere 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 nei8hbors of the meeting. ln 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 ML 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-2OS 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. 5 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 ZoninB Ordinance in preparation for today's hearing. Ms. Sharon Huffmdn, 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. PUBTIC HEARING CIOSED. BOARD DISCUSSION: Mr. Devita inquired as to clarification of the property owner and applicant in relationship to this case hearinB; 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 develope/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 ofvariances have been required to meet county ordinance. BOARD DECISION: 1) lt 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. 2l lt is the Board's conclusion that the hardship of which the applicant complains results from unique circumstances related to the subiect 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) lt is the Board's conclusion that the hardship did not result from actions taken by the applicant or the property owner. (Ihe ad ol purchosing Noperty with knowledge thot circumstances exist thot moy justily the qronting ol a varionce shall not he rcgorded os o seff-creoted 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 6 On a motion by Mr. Miller and seconded by Mr. Bray the board voted unanimously to approve the variance request, drawing the following conclusions: Various lot layout configurations were explored and none resulted in a design that could adhere to the setback requirements. 4) lt is the Board's concluslon 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: o Similar variances have been approved for setback reductions in the Demarest Landing neighborhood. . Reductlon 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 cretary Chairman Date:* o 7