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1977-07-12 Special Meeting 72 7-<. MINUTES OF REGULAR MEETING, JULY 5, 1977 (CONTINUED) LETTER CONCERNING VIOLATIONS OF SUBDIVISION REGULATIONS Comm. Gottovi moved, seconded by Comm. williams,that the Planning ,Director send a letter to the principals 'involved in violation of the Subdivision Ordinance advising that future,violations woUld be prosecuted and, a letter' to the Board of Realtor~ and Developers advising them that there' had been violations and in the future they would be prosecuted. Upon vote, the motion carried as follows: Voting Aye: Comm. Gottovi, Williams and Chm. O'Shields Absent: Comm. Wright and, Alper o ADJOURNMENT Comm. Williams moved, seconded' by Chm. Upon vote, the motion carried as follows: O'Shields, that the meeting be adjourned. Voting Aye: Comm. Gottovi, Williams and Chm. 0' Shields Absent: Comm. Wright and Al.per Respectfully submitted, a/~-L ,(j. J'i,.-...",,-- Alyce B. Brown Clerk to the Board ab MINUTES OF SPECIAL MEETING, JULY 12, 1977 ASSEMBLY The New Hanover County Board of Commissioners met in Special Session on Tuesday, July 12, 1977, at 9:00 o'clock a. m. in the Assembly Room, New Hanover County Admin- istration Building, Wilmington, North Carolina, to review proposed Findings of Fact and Conclusions of Law and take action on the appeal of a sand dune permit issued to Mr. Elwood Barnes. o Members present were Commissioners Karen E. Gottovi; Ellen C. Williams; Vivian S. Wright; County Manager Dan W. Eller; County Attorney James C. Fox; and Clerk to the Board, Alyce B. Brown. Chm. Claud O'Shields, Jr. and Vice-Chm. George E. Alper were absent. The meeting was called to order by acting Chm. Karen E. Gottovi. ELECTION OF TEMPORARY CHAIRMAN Comm. Williams moved, seconded by COmm. Gottovi, that Comm. Wright be made temporary chairman. Upon vote, the motion carriednas follows: Voting Aye: Comm. Gottovi, Williams and Wright Absent: Chm. O'Shields and Vice-Chm. Alper PURPOSE OF MEETING Temporary Chm.:Wright stated that Chm. O'Shields had to go back into the hospital for some additional treatment and vice-Chm. Alper was out of town. Chm. O'Shields' comments on this matter are contained in Exhibit Book V,Page 16. Temporary Chm. wright stated that, although she was absent from the hearing that was 0 held on this appeal last week, she had been brought up to date on what took place at that time by speaking with'Mrs. Bayer, Comm. Williams, the County Manager and the Clerk to the Board,'that she had read the Minutes of that meeting and had read the Findings of Fact and COnclusions of Law as proposed by attorneys for Mr. Barnes, Mrs. Bayer and ~he De- partment of Natural and Economic Resources of the State of North Carolina. copies of these proposed'Findings of Fact and Conclusions of Law are contained in Exhibit Book V, Page 17. Temporary Chm. Wright stated that the evidentiary hearing on the appeal was held last week and that the purpose of this meeting today was to consider the proposed Findings of Fact and Conclusions of Law which had been furnished, and for the Board to take action by either adopting one of the proposed sets or any alternative which might be supported by the evidence that was presented last week. o \\0 o 73 MINUTES OF SPECIAL MEETING, JULY 12, 1977 (CONTINUED) FINDINGS OF FACT AND CONCLUSIONS OF LAW After'reviewing the proposed Findings of Fact and'Conclusions of Law, and after hearing the arguments of counsel, Comm. Williams moved, seconded by' Comm. Wright, that the Board find the following facts and,conclusions of law, and that the appeal of, Mr. ~ Mrs. Bayer and the Department of Natural & Economic Resources be dismissed: FINDINGS OF FACT 1. That Rev. Elwood Barnes applied for and was' granted a building permit for the erection of a dwelling on an ocean front lot located on the east side of U. S. High- way #421 approximately 1800 feet south of the Kure Beach City limits in New Hanover County. That in accordance with said permit'approval was given for the, location and construction of a 3 bedroom dwelling to be built on pilings ,in accordance with ,the plans and specifications therein submitted. 2. No municipal sewage facilities presently serve the premises in question and sewage disposal by septic tanks is required subject to the approval of the New Hanover COunty Health Department in accordance with North Carolina law. The location of the septic tank for the house in question was, approved by the New Hanover County Health Department by permit dated May 26, 1977. 3. Before beginning construction of this dwelling Rev. Barnes proposed to level off the area upon which the house was to be constructed by filling in the lower areas of his lot and building up the sand dune in front of the proposed dwelling with sand from the dunes on either side of the proposed dwelling. 4. Rev. Barnes was advised by the New Hanover County Engineering Department that a permit would be required for this purpose as it would involve work in, a' sand dune area that is subject to the Sand Dune Protection Ordinance of New Hanover County. 5. Rev. Barnes filed an application fora permit affecting sand dunes describing the work to be performed, the location of the work, the names and address of adjoining property owners and his assurance that he would reseed the dune with vegetation. The application was filed on a form furnished by the Shoreline Protection Officer and con- tained all the information required by that form of the 'applicant. ' 6. The application form appended to the New, Hanover ,County Sand Dune Ordinance re- quired notification of adjacent property'owners as a condition to issuance of a permit; however, the application form furnished to Mr. Barnes contained no requirement that applicant' notify adjoining property owners of the applicatiOIl for the permit. 7. partment who made An investigation of the proposed work, was made by the County Engineering: De- under the direction of Robert M. Williams, Jr., the Shoreline Protection Officer, an on-site inspection of the proposed work. 8. As a result of said investigation, it was,determin:ed by Mr. Williams that the proposed sand dune work would not be in violation of the Sand Dune Protection Ordinance of New Hanover County, and accordingly, on the afternoon of May 28, '1977, Mr. Barnes was notified that his application would be approved and he could proceed with the work. The permit was issued on the following business day, 'May 31,1977, (Permit Number 35, File Number 1085~by Robert M. Williams, Jr., the Shoreline'protection Officer of New Hanover County. 9. Said permit contained the following requirements: "No lowering of a ,dune to a height lower than 15 feet above mean sea level ~r re- moval of vegetation or disturbance of dunes except incidental to construction 'of resi- dence,and driveway will be permitted." 10. The work performed by ,Rev. Elwood Barnes under the 'aforesaid permi1; did not result in a lowering of a protective dune'to a height lower than 15 feet above mean sea level. The sand dune work consisted of the following: a. Lowering the height of the frontal dune by approximately 3 feet on both sides of the lot; b. Redistributing the sand mass of the dune by pushing sand forward; c." Filling in an existing path over'the dune; d. Leveling a building site on top..of the dune; and e. Removing the natural vegetation of the 'dune around the building,site 74 7Y MINUTES OF SPECIAL MEETING, JULY 12, 1977 (CONTINUED) FINDING OF FACT AND CONCLUSIONS OF LAW (CONTINUED) 11. The adjacent property owners were not notified of the issuance of the afore- mentioned, permit prior to the issuance thereof. ,.They" were first notified of ,the issuance of said permit by letter from Mr. Robert M. Williams, Jr., New Hanover County Engineer, dated June 2, 1977, which letter was received by Mr. & Mrs. Bayer on June 4, 1977. 12. Mr. Jack R, Bayer protested the issuance of the permit by letters to Mr. Robert Williams, Jr. and Mrs. Vivian S. Wright dated June 6, 1977. M. o 13. The deed conveying the aforementioned property to Mr. & Mrs. Elwood C. Barnes was recorded in the New Hanover County Registry on June 7, 1977. 14. Mr. Barnes commenced construction of the house to be situated' on the afore- mentioned lot on or about June 10, 1977. 15. By letter of June 16, 1977, Mr. Robert M. Williams, Jr., County Engineer, in- formed Mr. Jack R. Bayer that, in his opinion, the application of Mr. Barnes met the re- quirements of the Sand Dune Protection Ordinance of New Hanover County. 16. On June 15, 1977, the Department of Natural & Economic Resources and on June 17, 1977, Mr. & Mrs. Jack R. Bayer, respectively; filed formal objections to the issuance of the Barnes permit and gave formal notice of Appeal, to the New Hanover COunty Board of Commissioners. 17. By letter of June 20, 1977, Mr. Robert M. williams, Jr., County Engineer, in- formed Mr. Barnes"tha.t :the Chairman of the New Hanover County Board of Commissioners had received a letter 'n:orn the North Carolina Department of Natural & Economic Resources and the Petition filed by Mr. & Mrs. Bayer, bo'th objecting to the issuance of the permit to Mr. Barnes. By said letter, Mr. williams advised Mi;-'Barnes that continued construction would be at the latter's risk until the matter had been resolved. 18 Mr. Barnes continued construction on the aforementioned house through June 25, 1977, or sometime near that date. o 19. The actions of Mr. Barnes in altering the natural configuration of the dune have neither materially weakened the dune nor reduced its effectiveness as a means of protection from the effects of wind and water. 20. The actions of Mr. Barnes in building a house on top'of an~ in front of the frontal dune line will not materially weaken the dune nor will it in the future reduce its effectiveness as a means of protection from the effects of wind and water. 21. The placement of the house behind the frontal dune would, not enhance the sta- bility of the frontal dune system in this area. CONCLUSIONS OF,LAW 1. In the consideration of this appeal, the Board of County commissioners are empowered to consider the matter ab initio and may take any action which the Shoreline Protection Officer could have taken. 2. The Shoreline Protection Officer could have required that Mr. Barnes not lower the dune, alter its configuration or unnecessarily destroy vegetation. 3. The'Shoreline Protection Officer could have required Mr. Barnes to locate the house behind the frontal dune line. 4. It would neither be in the best interest of the County, the adjacent property 0 owners, Mr. Barnes nor the integrity and stability of the frontal dune to require that Mr. Barnes place his home behind the frontal dune line. 5. The issuance of the permit to Mr. Barnes was inconsistent with the requirement of the Ordinance that the applicant for a permit agree to notify adjacent property owners of such application when the same might affect their property. NOW, THEREFORE, it is ordered, adjudged and decreed that the appeal of Mr. & Mrs. Bayer be dismissed. Voting Aye: Comm. Williams and Temporary Chm. Wright Voting Noe: Comm. Gottovi Absent: Chm. O'Shields and vice-Chm. Alper o o o '"."' ~5 <' ., MINUTES OF SPECIAL MEETING, JULY 12, 1977 (CONTINUj;;D) FINDING OF FACT AND CONCLUSIONS OF LAW (CONTINUED), By reason of the' aforesaid vote, the foregoing Finding ,of Fact and "Conclusi6ns of Law were adopted by the Board and the appeals of ,Mr. & Mrs. Bayer and the Depart- ment of Natural' ,& Economic Resources were, and are,disIilissed. Temporary Chm. Wright adjourned the meeting at 11:05 o'clock a. m. Respectfully submitted, ~.A.~ 'Alyce B. ,Brown Clerk to the Board ab MINUTES OF REGULAR MEETING, JULY 18,' 1977 ASSEMBLY The New Hanover COunty Board of Commiss:j.onersmet in' Regular Session on Monday, July'18, 1977, at 9:00 o'clock a. m. in the Assembly Room, New Hanover County Adminis- tration Building, Wilmington, North Carolina. Members present were Commissioners George E. Alper; Karen E. Gotto1fi; Ellen' C. Williams; Vivian S. Wright; Chairman Claud O'Shields, Jr.; COunty Manager' Dan W. Eller; County Attorney James C. Fox and Clerk to the Board, Alyce B. ,Brown. No meinbers were absent. Chm. O'Shields called the meeting to order.' Rev. ",Edwin E. Kirton, Retired, offered the invocation APPROVAL OF MINUTES OF REGULAR MEETING, JULY 5, 1977, AND SPECIAL MEETING, JULY 12, 1977 Comm. Gottovi moved, seconded by Conun. Williams, that the Minutes of the Regular Meeting of July 5, 1977, be approved as presented and that Conun:'Wright be allowed to abstain from Voting as she was not present at the meeting. Upon vote, the lllOtion' carried as follows: Voting Aye: Comm. Alper, Gottovi, Williams and Chm. O'Shields Abstaining: Comm. wright Comm. Wright moved, seconded by Comni. Williams, that the Minutes of the Special Meeting of JUly 12,1977, be approved as presented'and that Comm. Alper and Chm. O'Shields be allowed to abstain from voting as they were not present at the meeting. Upon vote, the motion carried as follows: Voting Aye: Comm. Gottovi, Williams and Wright Abstaining: Conun. Alper and Chm. O'Shields DISCUSSION 'ON SAND DUNE PROTECTION ORDINANCE Due to recent appears and hearings on the issuance of a' sand dune permi~, the County Manager had requested the N. C. Department of Natural & Economic Resources and Community Development to furnish the Board 'with proposed changes to the County Ordinance. County Manager Eller reported that Mr. Jamieson of the 'Department of Natura'1 '& Economic Resources had another meeting this morning and would arrive atl.ithe Commission meeting later in the morning. ,,' Comm. Williams moved that no building permits be issued for the proper~y below the Barnes property (South of Kure Beach) until it was zoned. The IOOtion died for lack of a second. It was agreed to hold up further discussion on this matter until Mr. Jamieson arrived.