Loading...
ZBA-910 Staff SummaryZBA-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.