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HomeMy WebLinkAboutZBA-934 Staff SummaryZBA-934, 2/19 Page 1 of 4 VARIANCE REQUEST ZONING BOARD OF ADJUSTMENT FEBRUARY 26, 2019 CASE: ZBA-934 PETITIONER: Paul and Sandra Seiferth REQUEST: Variance from the 75’ setback for structures and impervious surfaces as required in Section 55.1- 5, Additional Performance Controls, of the New Hanover County Zoning Ordinance. LOCATION: 815 Seven Oaks Drive PID: R04500-001-009-000 ZONING: R-20, Residential District ACREAGE: 3.83 Acres PETITIONER’S REQUEST: Paul and Sandra Seiferth, property owners, are requesting a variance from the 75’ setback for structures and impervious surfaces as required in Section 55.1-5, Additional Performance Controls, of the New Hanover County Zoning Ordinance. The property is located at 815 Seven Oaks Drive, Wilmington, NC. BACKGROUND AND ORDINANCE CONSIDERATIONS: On October 26, 2018, the applicant’s agent requested a formal determination as to the application of Conservation Overlay District (COD) regulations on the subject property. County staff responded with a determination that the COD regulations do apply to this lot on November 7, 2018. On December 4, 2018, an appeal of this determination was filed, with the appellants contending that the COD regulations do not apply to this property for reasons stated within that application. Should the Board find that the COD regulations do apply to the subject property as detailed in case ZBA-932, the applicant has prepared an application for variance from Section 55.1-5, Additional Performance Controls, within the COD section, which requires that all structures and impervious surfaces be set back 75’ from the edge of the resource. On this property, the applicable conservation resource is a salt marsh. The applicable Zoning Ordinance language states: 55.1-5 Additional Performance Controls - In addition to the general performance controls specified in Section 55.1-4, additional controls shall be required to protect certain conservation resources in certain zoning districts. The Table of Additional Controls lists for each resource and district the reference number of the group of additional controls that shall be required. If the parcel being developed is associated with two or more conservation re-sources with conflicting performance controls, then the most restrictive controls shall apply. However, improvements as specified in Section 55.1-4(3) may be permitted within the conservation space setbacks. Additionally, decks may be allowed to encroach into the conservation space setback up to six (6) feet provided they are uncovered and constructed so that the floorboards are spaced to allow water to flow through directly to the ground. The ground below the deck shall be either left undisturbed or planted with ground cover or other vegetation. (4/6/92) ZBA-934, 2/19 Page 2 of 4 Groups of Additional Performance Control by Reference Number 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. Figure 1 – Aerial photograph of subject parcel and surrounding vicinity. The subject property consists of 3.83 acres and is located off of Middle Sound Loop Road, adjacent to Pages Creek. The applicants obtained the property in 2017 and have proposed construction of a single family residence on the Pages Creek Approximate Location of 30’Utility Easement ZBA-934, 2/19 Page 3 of 4 northwestern portion of the lot, as shown in Exhibit “A1” provided in the application. The northern portion of the lot is directly adjacent to Pages Creek, which is classified as a salt marsh and thus subject to the 75’ COD setback. This side of the lot does have an irregularly shaped boundary due to the natural topography of Pages Creek, which limits the buildable area on this portion of the parcel when the 75’ setback is applied. The property is also bisected by a 30’ wide utility easement, recorded in Map Book 43, Page 309 of the New Hanover County Registry. Figure 2 – 30’ utility easement bisecting the lot as recorded in MB 43, PG 309 of the NHC Registry Adjacent to the north of the parcel are coastal wetlands; from normal high water 30’ landward is a CAMA (N.C. Coastal Area Management Act) buffer that must remain undisturbed with few exceptions. No portion of a structure can encroach into the CAMA buffer, and any development proposed within 75’ of the normal high water line must obtain a CAMA permit. In addition, the property does lie partially within an AE Special Flood Hazard Area with a Base Flood Elevations of 14’ and 13’. All development within a Special Flood Hazard Area must follow the applicable requirements within the Flood Damage Prevention Ordinance. In summary, the petitioner is requesting a (dimension?) variance from the 75’ setback for structures and impervious surfaces as required in Section 55.1-5, Additional Performance Controls, to allow encroachment of the (feature??) into the COD setback area. ZBA-934, 2/19 Page 4 of 4 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.