10-22-19 ZBA Agenda Package
October 22, 2019, 5:30 PM
I. Call Meeting to Order (Vice-Chairman Hank Adams)
II. Official Approval of August Minutes (currently in draft status)
September Member Attendees: Joe Miller, Cameron Moore, Mark Nabell, Richard Kern
III. Regular Items of Business
1. Case ZBA-943 - Gregory Alan Heafner, PA, applicant, on behalf of Zachary and Ashley
Paulovits, property owners, is requesting a special exception for reasonable
accommodation under the Federal Fair Housing Act per Section 63.11 of the Zoning
Ordinance to allow up to 8 residents in a group home located at 5014 Richardson Drive.
2. Case ZBA-944 - Matthew Nichols, applicant, on behalf of Kurt and Catherine Olivero,
property owners, is requesting a variance from the 25’ required front yard setback in
the R-15 district per Section 51.6-2(3) of the Zoning Ordinance. The property is located
at 210 Windy Hills Drive.
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, September 24, 2019.
Members Present Members Absent
Joe Miller, Chairman Pro-Tem Ray Bray, Chair
Cameron Moore Hank Adams, Vice-Chair
Brett Keeler Brett Keeler
Richard Kern Kristin Freeman
Ex Officio Members Present
Ken Vafier, Executive Secretary
Sharon Huffman, County Attorney
Linda Painter, Zoning Official
Denise Brown, Clerk
Ms. Huffman informed present board members that Chairman Bray and Vice-Chairman Adams were unable to attend the
meeting and that parliamentary procedures dictate that in the absence of the Chairman and Vice-Chairman of the Zoning
Board of Adjustment, she is calling the meeting to order and then conduct an election of a Chairman Pro-Tem to conduct
the meeting.
The meeting was officially called to order at 5:35 P.M. by Ms. Huffman and the floor was opened for nominations of the
Chairman Pro-Tem for today’s hearing. Mr. Miller made a motion to appoint a substitute chair. Mr. Moore second the
motion and motion passed unanimously.
Mr. Cameron Moore nominated Mr. Joe Miller as the Chairman Pro-Tem for the September 24, 2019 meeting. Mr. Mark
Nabell seconded the motion and the motion passed unanimously.
Chairman Pro-Tem Miller stated 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. 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.
Chairman Pro-Tem Miller inquired as to corrections to the minutes of the August 27, 2019 meeting.
Ms. Huffman stated although some board members were not present at last meeting, if three present board members
from the last meeting are in attendance, they can vote to approve the minutes from August 27, 2019 if members have
reviewed and no changes are warranted.
Mr. Moore made a motion to adopt the minutes from the August 27, 2019 meeting. Mr. Kern second the motion. The
motion passed unanimously.
A brief discussion was had by the applicants and staff regarding the cases as they must be approved by all four members
present. The applicants agreed to move forward with the case hearings for decision making.
2
CASE ZBA-942
Chairman Pro-Tem Miller swore in County staff, Mr. Ken Vafier, Ms. Linda Painter and Mr. Josh Mihaly.
Mr. Vafier presented an overview of the case stating the petitioner, Mihaly Land Design, PLLC, applicant, on behalf of
Chase & Dylan Mihaly, LLC, property owner, is requesting two variances related to the setback and buffer width
requirements in order to construct an office building on the site, contingent upon the successful rezoning of the property
to a Conditional B-2, Highway Business District. Mr. Vafier stated currently, the property is zoned R-15, Residential
District. The site consists of 0.32 acres located at 7031 Market Street.
Mr. Vafier stated the applicant intends to file a rezoning application in conjunction with this request in order to rezone
the property in a conditional B-2 Highway Business, which would allow the office building to be permitted. There is a
community meeting in regards to the proposed rezoning to take place on September 25. The rezoning is to be heard at
the next scheduled Planning Board meeting for consideration.
The applicant is proposing variances from two separate sections of the Zoning Ordinance which would apply to the site
should it be zoned(CZD) B-2.
Mr. Vafier referenced the two variances requested by the applicant as A & B outlined below:
A. A 14.59’ variance from the 63.25’ minimum side yard setback required on the northeastern property boundary
per Section 60.3 of the ordinance;
B. A 18.43’ variance from the 31.60’ minimum required landscape buffer per Section 62.1-4(2) of the ordinance to
allow parking and drive areas within the buffer. At the narrowest point, the applicant is proposing a 13.17’ wide
buffer consisting of 2 rows of wax myrtles in addition to a 6’ artificial fence to provide a buffer to the adjacent
property, with 6 parking spaces and a portion of the driveway encroaching into the required buffer.
Mr. Vafier stated the applicant contends two variances are necessary due to several factors, including: limited buildable
area to develop the site with a commercial use, the intent to preserve several mature live oak trees on site, and the
presence of a Duke utility easement which traverses the southwestern portion of the parcel. Should significant trees be
removed off the site the applicant would be required to mitigate funds for the loss of trees and or replanting as
determined by the ordinance.
Mr. Vafier presented an aerial photo of the subject site and the adjacent area.
The applicant intends to apply for a rezoning of the property to a conditional B-2, Highway Business District, which would
allow development of an office building on the site. The applicant is proposing a 2,000’ sf, 2-story office building on the
site, to include two rows of 3’ tall wax myrtles and a 6’ tall privacy fence to meet the intent of the ordinance in providing
visual opacity to the subject site which is currently undeveloped.
Mr. Vafier stated should the board approve the variance request the approval is contingent upon the Planning Board
recommendation and also the County Commissioners approval of rezoning the parcel. Staff suggests that approval of a
rezoning be included as a condition in the variance decision.
Should the property be rezoned and developed as commercial site, the required setbacks for commercial uses which abut
residential uses or districts are addressed in Section 60.3 of the Zoning Ordinance: Setbacks.
Mr. Moore asked staff to explain the dimension request by the applicant.
Chairman Pro-Tem Miller asked if the applicant plantings are required by the ordinance.
3
Mr. Vafier stated the width is a specified requirement in the ordinance. The ordinances have various options for plantings
and fencing.
Ms. Painter, Zoning Official, stated per the county’s landscape requirements the applicant has three choices of plantings.
Mr. Kern inquired as to the overall road frontage of the subject site.
Mr. Vafier stated the applicant is prepared to give presentation and answer the board inquiries.
Mr. Moore stated as with the presence of the easement the site appears to be limited in buildable area, as are many left
over residential districts from past decades.
Mr. Vafier stated due to the urbanization of the areas there are challenges in setback requirements in some of the left
over residential districts from past decades as it pertains to meeting restraints per county ordinance.
Mr. Vafier stated some of these lots have remained vacant. With interest shown to these parcels in redevelopment
challenges have been met in sites meeting current ordinance setback requirements. The applicant is proposing an office
building at the subject site.
Chairman Pro-Tem Miller then swore in Mr. Josh Mihaly.
Mr. Josh Mihaly- Mihaly Land Design, 330 Military Cutoff, Wilmington, NC - Mr. Mihaly stated the subject site has been
in existence since 1960’s and previously had a mobile home on site. Mr. Mihaly stated he purchased the site to construct
1 office buildings consisting of 2,000 sf. Mr. Mihaly stated he was drawn to the site due to the mature trees located on
the site and he has no intention of removing the unique trees. Mr. Mihaly stated the site frontage measures 68.5’.
Mr. Mihaly stated the lot is .35 acres and the setbacks per county ordinance presents challenges with the required height
of the building. Mr. Mihaly stated the subject site abuts adjacent residences and a Duke Energy easement. Mr. Mihaly
stated he spoke to NC DOT and they advised to place the driveway south of the subject site, this is in conjunction with
future improvements NC DOT has planned for locations around on Market Street. Mr. Mihaly stated in adhering to the
NC DOT request potential plans impose the county’s buffer requirements.
Mr. Mihaly stated he could construct a building on the site possibly without variance relief however they would rather
not due to the trees would be impacted n removal from the site. He stated they can meet the intent of the buffer
requirement to the north. The plan presented is a good use for the property as a business setting. Mr. Mihaly stated they
are applying for the site to be rezoned as Conditional District. The adjacent residence near the subject site was for sale
and is now currently under contract.
PUBLIC HEARING CLOSED
BOARD DISCUSSION:
The board discussed the applicant’s proposal in constructing a commercial building at the site given the location and the
possibility of the B-2 commercial zoning for the business. The board recognized the uniqueness of the site with the
multiple trees at the subject site; they also appreciated the applicants approach in preserving the significant trees. The
applicant proposes placement of the office building closer to the B-2 district. The board recognized due to the side yard
setback, the buildable area for an office building is limited. The board stated they would place a condition that the
applicant’s rezoning application be approved prior to constructing the office building.
Ms. Huffman suggested the board’s findings be directed to items listed in notation and the application received for the
variance by the applicant collaborating in draft with staff for the language.
4
BOARD DECISION:
On a motion by Mr. Richard Kern and seconded by Mr. Mark Nabell, the board voted 5-0 to grant the variance at 7031
Market Street, Wilmington NC, conditioned upon successful conditional rezoning of the property to a (CZD) B-2 District.
The Board's decision was based on the following conclusions and findings of fact:
1. It is the Board's conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the side
yard setback requirements per Section 60.3 and the buffer strip width requirements per Section 62.1-4(2) of the New
Hanover County Zoning Ordinance, that an unnecessary hardship would result. This conclusion is based on the
following FINDINGS OF FACT:
The literal application of the required setback renders the lot essentially unbuildable with a commercial use.
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 location and size of the property, with the narrow road frontage of 68’, make it difficult to develop as a
commercial use with application of the required setback.
The applicant has designed a site plan with the intent to retain the unique stands of significant trees on site.
3. It is the Board’s conclusion that the hardship did not result from actions taken by the applicant or the property owner.
This conclusion is based on the following FINDINGS OF FACT:
The applicant did not take any actions that created the hardship.
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:
The proposed variance and site plan is consistent with the spirit and intent of the ordinance based upon the
proposed buffer and tree retention.
CASE ZBA-941
Mr. Vafier presented an overview of the case stating the petitioner, Caliber Car Wash Wilmington, LLC, is requesting five
variances from multiple Zoning Ordinance provisions related to landscaping and setback requirements in order to
preserve several mature live oak trees that exist on the site into the design for a self-service car wash at 7032 Market
Street. The subject site is zone B-2, Highway Business District. The property to the immediate northeast is zoned R-15,
Residential District.
Mr. Vafier presented aerial photos of the subject site and the trees on the lot.
Mr. Vafier stated if the building is shifted south in construction to comply with the county’s zoning ordinance side yard
setback requirement the oak trees on the lot would likely need to be removed. Mr. Vafier stated the Zoning ordinance
encourages significant trees be preserved if possible and when these trees are removed mitigation is required. In order
for the applicant to preserve the trees and construct the car wash with all the site features, variances from 5 provisions
are needed to accommodate all pertinent features for the self-service car wash.
5
The applicant is requesting relief from the 50’ minimum front yard setback, the 59.13’ minimum side yard setback, the
29.57’ minimum required landscape buffer width, the 5’ minimum parking area screening requirement and the minimum
street yard planting requirement all which are requirements of the zoning ordinance.
The existing building received a variance from the buffer requirements in 2005 to preserve the oak trees on site. Also,
there was a variance approved for this same site in 1993 to construct an office building. However, the building was not
constructed.
Ms. Huffman stated past variances are attached to the property and if the owner was using the same footprint these past
variances would be valid. However, what the applicant is now proposing requires more relief to construct the car wash.
There is a fence located at the northeast side of the subject site’s property line which provides as buffer. The applicant is
proposing installation of one row of 3’ tall shrubbery in order to provide landscaping to the front of the site. The applicant
is also proposing one row of 36’ tall shrubs in lieu of the required number of plantings in order to provide an area of
landscaping adjacent to Market Street.
The Chairman Pro-Tem swore in Mr. Danny York and Mr. Mac McCall of Caliber Carwash and Mr. Rob Milliman.
Mr. York stated he works with engineers in setting up car washes in multiple areas; currently they are proposing the same
car wash facility in the Hampstead area. The Wilmington location received numerous responses from the public regarding
the trees at the subject site. Mr. York stated they have no plans of removing the trees on the subject site. They propose a
6’ fence to preserve the various trees onsite.
Mr. York stated the goal is to save as many trees as possible and provide a buffer to the nearby residences. The plan
constructed by his engineer was constructed as the best way possible to not remove or harm the trees during construction.
Mr. Moore stated with the future NC DOT right- of- way on Market Street he inquired to the location of the car wash sign
and fencing at the site. Mr. Moore also inquired of the actual dimensions in approving the variances.
Mr. Vafier stated the dimensions provided during his presentation were taken from the applicant’s survey and site plans
dimensions they provided.
Chairman Pro-Tem Miller inquired of the public’s feedback to this case.
Mr. Vafier stated he did not receive any calls pertaining to the variance request. All requirements were met in
advertising the case hearing.
Mr. York stated initially they had a site plan that proposed removal of the trees at the site however with the response of
the public in preserving the trees he and his staff revised the plans to preserve the trees located on the site. Mr. York
stated the vacuums will be housed at the front of the business and they take great care of using materials that do not
create high noise volume.
Mr. Rob Milliman (214 El Ogden Drive resident)- Mr. Millian was present to give concerns of the noise to the
neighborhood and request 10 ft. fencing be place as a buffer to prevent excessive noise to the neighbors.
Mr. York stated they currently have no plans of adding a 10 ft. fence to the sight but they would consider talking to the
neighbors of their concerns.
Mr. Vafier stated the applicant is present to request variance in relief of the submitted application for the site
dimensions, however staff does not have the ability to enforce agreements made by the applicant and adjacent property
owner in a private setting. Mr. Vafier stated the staff can regulate conditions that apply to the variance approvals.
6
PUBLIC HEARING CLOSED:
BOARD DECISION:
The board discussed the concern over the trees being removed at the site and commended the applicant in the revised
plan to preserve the trees while constructing the proposed car wash. The front and side yard setback is a hardship and is
something that was not created by the owner.
On a motion by Mr. Cameron Moore and seconded by Mr. Richard Kern, the board voted 5-0 to grant the variance at 7032
Market Street, Wilmington NC.
The Board's decision was based on the following conclusions and findings of fact:
1. It is the Board's conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the
minimum front yard setback requirements per Section 52.2-4(2), minimum side yard setback per Section 52.2-4(3),
buffer strip width requirements per Section 62.1-4(2), parking area screening requirements per Section 62.1-5(2)(D),
and street yard landscaping requirements per Section 62.1-10 of the New Hanover County Zoning Ordinance, that an
unnecessary hardship would result. This conclusion is based on the following FINDINGS OF FACT:
Complying with the literal terms of these provisions would result in the removal of 5 significant live oak trees
on site, which contradicts the tree retention purpose statement in the zoning ordinance.
The potential removal of these live oak trees has shown to be undesirable to residents in the community.
The proposed site plan is designed to retain all significant trees.
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 site contains 8 significant oak trees and 1 significant magnolia tree, creating a hardship peculiar to the
property.
The adjacent property is zoned R-15, Residential, requiring a buffer strip.
In addition to the building setbacks, the buildable area of the lot is limited, and proposed development would
require removal of these trees to comply with applicable provisions of the zoning ordinance.
3. 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:
NCDOT acquired additional ROW that has limited use of the property in the front yard.
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:
The requested variance is consistent with the spirit, purpose and intent of the Zoning Ordinance’s tree
retention purpose statement.
7
The board also placed the following condition of approval upon the variance request: A 10% administrative variation from
the proposed dimensional requirements shown on the submitted site plan is permitted.
There being no further business before the board, it was properly moved by Mr. Moore and seconded by Mr. Nabell to
adjourn the meeting. All ayes.
MEETING ADJOURNED.
Please note the minutes are not a verbatim record of the proceedings.
_______________________________________ ______________________________
Executive Secretary Chairman
ZBA-943
Page 1 of 3
SPECIAL EXCEPTION REQUEST
ZONING BOARD OF ADJUSTMENT
October 22, 2019
CASE: ZBA-943
PETITIONER: Gregory Alan Heafner, PA, applicant, on behalf of Zachary and Ashley Paulovits, property owners.
REQUEST: Special exception for reasonable accommodation under the Federal Fair Housing Act per Section
63.11 of the Zoning Ordinance to allow up to 8 disabled persons residing together in a group
home.
LOCATION: 5014 Richardson Drive
PID: R04317-004-002-000
ZONING: R-15, Residential District
PETITIONER’S REQUEST:
The applicant is requesting a special exception for reasonable accommodation under the Federal Fair Housing Act
to deviate from the maximum number of 6 residents that may be allowed in a group home to allow up to 8
residents at 5014 Richardson Drive.
BACKGROUND AND ORDINANCE CONSIDERATIONS:
The applicant intends to permit a group home run by the Oxford House at the subject property. The New Hanover
County Zoning Ordinance allows up to six disabled persons to reside in a group home by-right in the R-15 zoning
district per Section 63.11 (1). Additional standards for group homes are also part of Section 63.11, as well as a
process described under subsection (6) by which a group home provider may petition for a special exception for
reasonable accommodation under the Federal Fair Housing Act to vary any of the provisions outlined in Section
63.11, including the number of residents, parking allowance, or distance requirement:
Disabled Persons – Individuals with disabilities, including individuals recovering from alcoholism and/or
drug addiction, who are protected by either the provisions of the Americans with Disabilities Act of 1990,
42 USC 12101, the Fair Housing Act, 42 USC 3601 et. seq., or NCGS Chapter 168, Article 3, as each may be
amended.
Group Home – A home in which more than three (3) unrelated Disabled Persons live together as a self-
supporting and self-sufficient household unit.
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ZBA-943
Page 2 of 3
Section 63.11: Group Homes
Group homes shall be permitted in accordance with the table of permitted uses in Section 50 and the
following standards:
1. Group homes shall be limited to six (6) Disabled Persons living together as a self-supporting and self-
sufficient household unit.
2. No group homes shall be occupied or operated without zoning approval.
a. Group homes that are exempt from licensure pursuant to NCGS § 122C-22 must recertify their
exemption status annually; and
b. Group homes for special needs persons must recertify qualification of all residents as special
needs persons annually.
3. Parking shall be provided in accordance with Article VIII: Off-Street Parking and Loading.
4. Group homes shall not be located closer than 2000 feet to any other existing group home, measured
by a straight line from the nearest property lines, irrespective of municipal boundaries.
5. With respect to the distance between the proposed use and the existing, permitted uses described in
subsection 4 above, the distance shall be reduced by the right-of-way of a major thoroughfare
exceeding one hundred (100) feet, major topographical features such as a major watercourse, or by
major nonresidential or public uses such as a park, school, or religious institution.
6. Special Exceptions
a. Applicability. The Board of Adjustment is authorized to grant special exceptions for the special
circumstances set forth in this section to allow for a reasonable accommodation under the
Federal Fair Housing Act.
b. Application. An application for a special exception under this section shall be submitted to the
Board of Adjustment by filing a copy of the application with the Planning Director or their
designee. No filing fee shall be required for such application.
c. Approval process. The procedures set forth in Section 121-3 for variances and appeals shall
apply to Staff Review and Report, Public Hearing Notice and Action of the Board of
Adjustment.
d. Approval criteria. The Board of Adjustment shall grant a special exception to any provision of
this ordinance as a reasonable accommodation under the Federal Fair Housing Act if the Board
finds by the greater weight of the evidence that the proposed special exception is:
i. "Reasonable." An accommodation will be determined to be reasonable if it would not
undermine the legitimate purposes and effects of existing zoning regulations, and if it
will not impose significant financial and administrative burdens upon the County
and/or constitute a substantial or fundamental alteration of the County's ordinance
provisions; and
ii. "Necessary." An accommodation will be determined to be necessary if it would provide
direct or meaningful therapeutic amelioration of the effects of the particular disability
or handicap), and would afford handicapped or disabled person’s equal opportunity
to enjoy and use housing in residential districts in the County.
The Zoning Board of Adjustment is authorized to grant special exception requests after a public hearing and finding
that the request is “reasonable” and “necessary” as described further later in this document under Board of
Adjustment Power and Duty.
The specific request is to allow up to 8 disabled persons instead of up to 6 disabled persons to reside in a proposed
group home at 5014 Richardson Drive. According to New Hanover County tax records, the home lies on a 0.38-
acre parcel and contains 1,879 square feet of living area. A copy of the property record card is included as an
addendum to this staff report.
ZBA-943
Page 3 of 3
Included with the petitioner’s application is a statement of justification for the special exception request, as well
as the Oxford House Manual.
BOARD OF ADJUSTMENT POWER AND DUTY:
The Board of Adjustment is authorized to grant special exceptions for the special circumstances as set forth in
Section 63.11 of the New Hanover County Zoning ordinance to allow for reasonable accommodation under the
Federal Fair Housing Act. The Board of Adjustment shall grant a special exception as a reasonable accommodation
under the Federal Fair Housing Act if the Board finds by the greater weight of the evidence that the proposed
special exception is:
1. "Reasonable." An accommodation will be determined to be reasonable if it would not undermine the
legitimate purposes and effects of existing zoning regulations, and if it will not impose significant financial
and administrative burdens upon the County and/or constitute a substantial or fundamental alteration of
the County's ordinance provisions; and
2. "Necessary." An accommodation will be determined to be necessary if it would provide direct or
meaningful therapeutic amelioration of the effects of the particular disability or handicap), and would
afford handicapped or disabled person’s equal opportunity to enjoy and use housing in residential districts
in the County.
ACTION NEEDED (Choose one):
1. Motion to approve the special exception request based on the findings of fact (with or without
recommended conditions)
2. Motion to table the item in order to receive additional information or documentation (Specify).
3. Motion to deny the special exception request based on specific negative findings in either of the
two categories above.
ORDER TO GRANT/DENY A SPECIAL EXCEPTION REQUEST – Case ZBA-943
The Zoning Board of Adjustment for New Hanover County, having held a public hearing on October 22,
2019 to consider application number ZBA-943, submitted by Gregory Alan Heafner, PA, applicant, on
behalf of Zachary and Ashley Paulovits, property owners, a request for a special exception for reasonable
accommodation under the Federal Fair Housing Act to allow up to eight disabled persons to reside
together in a group home located at 5014 Richardson Drive, 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 the request to deviate to eight from the limit of six disabled
persons living together in a group home at 5014 Richardson Drive is / is not reasonable. Note:
an accommodation will be determined to be reasonable if it would not undermine the legitimate
purposes and effects of existing zoning regulations, and if it will not impose significant financial
and administrative burdens upon the County and/or constitute a substantial or fundamental
alteration of the County’s ordinance provisions. This conclusion is based on the following
FINDINGS OF FACT:
_______________________________________________________________________.
_______________________________________________________________________.
_______________________________________________________________________.
_______________________________________________________________________.
2. It is the Board’s conclusion that the request to deviate to eight from the limit of six disabled
persons living together in a group home at 5014 Richardson Drive is / is not necessary. Note an
accommodation will be determined to be necessary if it would provide direct or meaningful
therapeutic amelioration of the effects of the particular disability or handicap), and would afford
handicapped or disabled persons equal opportunity to enjoy and use housing in residential districts
in the County. 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 SPECIAL EXCEPTION
from New Hanover County Zoning Ordinance from Section 63.11(1) to allow up to 8 disabled persons to
reside together in a group home located at 5014 Richardson Drive, be GRANTED/DENIED.
ORDERED this 22nd day of October, 2019.
____________________________________
Raymond Bray, Chairman
Attest:
____________________________________
Kenneth Vafier, Executive Secretary to the Board
NEW HANOVER COTINTY
PLANNING & INSPECTIONS
Application for
SPECIAL EXCEPTION
230 Govemment Center Drive
Suite I l0
Wilmington, NC 28403
910-79E-7165 phone
910-798-7053 fax
www,nhcgov.com
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APPLICATION OYERYIEW
In order to assist petitioners through the process for requesting a special exception, petitioners are highly
encouraged to attend a pre-application conference prior to application submittal. Petitioners are requested to
review the Section 63.1 I of the Zoning Ordinance prior to submission, and advised to contact Planning Staff
with any questions.
Requests for special exceptions to any of the provisions of Section 63.1I of the Zoning Ordinance may be
taken to the Board of Adjustment. The Board of Adjustment will hear and decide on the special exception in a
quasi-judicial proceeding. The Board of Adjustment shall grant a special exception to any provision of this
ordinance as a reasonable accommodation under the Federal Fair Housing Act ifthe Board finds by the greater
weight ofthe evidence that the proposed special exception is:
L "Reasonable." An accommodation will be determined to be reasonable if it would not undermine the legitimate
purposes and effects of existing zoning regulations, and if it will not impose significant financial and
administrative burdens upon the County and/or constitute a substantial of fundamental alteration of the
County's ordinance provisions; and
2. "Necessary." An accommodation will be determined to be necessary if it would provide direct or meaningful
therapeutic amelioration ofthe effects of the particular disability or handicap, and would afford handicapped or
disabled persons equal opportunity to enjoy and use housing in residential districts in the County.
A concurring vote of four-fifths (4/5) of members ofthe Board is necessary to grant a special exception.
Unless otherwise published or announced, Zoning Board of Adjustment meetings are held on the 4s Tuesday
of each month at 5:30PM in the Lucie F. Harrell Conference Room at 230 Government Center Drive. All
meeting dates and application deadlines are published on the New Hanover County Planning website.
Page I of2 tzit5
Sqmoary of Specid Exceptiotr Requestcd:
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Applications flor
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ln the space below, please describe the request for the special exception, including what provision(s) ofSection 63' l 1 -from which the special exception is being requested. Applicants are advised to demonstratehow the special exception rcquest is reasonable *a -n"""st ry as aiscriuea on page t. ptease attachadditional sheets if necessary.
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The undersigned owner does hereby- appoint an authorized the agent described herein as their exclusive agentfor the purpose of petirioning N"* ir-o*i co;ili;;;;;;ce. speciar use permit, rezoning reques, and/orffi:ffii::Hltjj;:'ffil'J,:H;J-*:.p'p"'t'' o"JLo in t:h" "nactrei;;;;1;" Agenr is hereby
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NEW HANOVERCOUNTY
PLANNING & INSPECTIONS
AATHORITY FOR
APPOINTMENT OF AGENT
I
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Oxford House, Inc. requests a Special Exception from Section 63.11:l of the County
Zoning Ordinance, which section limits the number of disabled persons that may live in a group
home to six.
Specifically, Oxford House requests that eight disabled persons be allowed to live at the
Oxford House located at 5014 Richardson Drive in Wilmington. This Oxford House is known as
Oxford House Smithcreek. It is home to 8 men. It is a single family detached, 4 bedroom, 3 bath,
approximately 2000 square foot home, with a garage and sufficient additional driveway parking.
As of the date of this application, Oxford House Smithcreek is located at t 131 N. Ken
Ave. in the City of Wilmington. It has been in operation at I 131 N. Kerr Ave. for over 19 years.
It is the longest operating Oxford House in the City of Wilmington and in New Hanover County.
It is compliant with all City of Wilmington zoning ordinances. It is forced to move because the
property is being taken by the Department of Transportation to widen Kerr Ave.
New Hanover County's zoning ordinance defines Oxford Houses as a "group homes"
pursu lt to the definition of same in the ordinance. Further, the residents of Oxford House are
defined as "disabled persons" pursuant to the definition of same in the ordinance.
WHAT IS AI\ OXFORD HOUSE
Oxford Houses are homes for persons recovering from alcoholism and or drug addiction,
who are no longer using alcohol or drugs. Oxford House is a self-run, seltsupported recovery
home concept and standardized system of operation that served as the model for the self-run, self-
supported group recovery homes authorized for start-up loans under $2036 of the Federal Anti-
Drug Abuse Act of 1988, PL I 00-690. This legislation required each state to set aside $ I 00,000 in
I
STATEMENT OF JUSTIFICATION
a revolving loan fund to make loans to recovering addicts and alcoholics to assist in the
establishment of housing that is financially self-supported, democratically run, and immediately
expels anyone who relapses.
Many of over two thousand five hundred Oxford Houses in the United States were started
with loans purswmt to this Act through contracts v/ith state govemments. Most of the over two-
hundred and fifty Oxford Houses in North Carolina were started with loans pursuant to this Act
through an ongoing contract with the State of North Carolina. Since 1990, the State of North
Carolin4 through the Departrnent of Health and Human Services, has entered into annual contracts
with Oxford House, Inc., the umbrella organization of the national network of Oxford Houses, to
help establish and assist in the maintenance ofa statewide network of Oxford Houses.
Each Oxford House is chartered by Oxford House, lnc., a 501(c)(3) nonprofit umbrella
organization. Three basic conditions are required to obtain a charter: l). The house must be
democratically self-run following the standard system of operation set forth in the Oxford House
Manual; 2). The house must be financially self-supporting by the individual residents paying equal
shares of household expenses in a timely manner, and; 3). The house must immediately expel any
resident who returns to using alcohol or drugs inside or outside of the house.
Oxford House, Inc.'s by-laws preclude it or its chartered houses from owning residential
property, thus all Oxford Houses are rented. A group wanting to start an Oxford House behaves
in the household rental market just like an ordinary family. It finds an available, suitable house
and rents it by paying the first month's rent and security deposit to a willing landlord. Usually,
these funds come from the above referenced start-up loans. Oxford House residents are encouraged
to rent single family dwellings in good neighborhoods.
2
The houses operate autonomously, but must follow the procedures in the Oxford House
Manual and adhere to the conditions of its charter. Each Oxford House has its own bank account.
There are no dues or fees to Oxford House, Inc. by individual houses, but having a charter gives
the houses technical assistance and support by Oxford House, Inc., including defense ofthe civil
rights of every Oxford House.
Oxford Houses are not substance abuse centers or halfuay houses. No treatment,
counseling, therapy, or any kind of health care is provided. There is no house manager, paid staff,
or other type of institutional personnel involved in the supervision or management of the house.
Al[ decisions relating to the functioning of the house are made democratically. Each house
manages its own finances. There is no required random testing for alcohol or drug use, nor are
there any required rules relating to curfews. In an Oxford House residents live there by choice.
Oxford House residents are considered to be the functional equivalent of a family for
several reasons. First, all the residents have access to the entire house. Second, all the residents
participate equally in the housekeeping functions ofthe house, such as chores and finances. Each
resident, however, is responsible for his own food and cooking. Third, the quality of the
relationship among the residents is one of emotional and mutual support and bonding giving each
resident support in their recovery from alcoholism and providing an ameliorative therapeutic
benefit toward recovery to each resident. Fourth, the living arrangement is not based upon a profit
motive. Finally, there are no limits as to how long a resident can stay in Oxford House. The
average length of stay, nationally, is about thirteen months. For more detailed information about
Oxford House and its recovery program and the benefits thereof, see the Oxford House Manual
enclosed herewith and incorporated herein by reference, and the Oxford House website at
www,oxfordhouse.org.
3
4
The residents of Oxford House are considered "disabled persons" pursuant to the definition
of same in the County's ordinance. Oxford House residents are a protected class under the Federal
Fair Housing Act, and the American with Disabilities Act. See the Fair Housing Act (FHA), 42
U.S.C.3600 et. seq. Recovering addicts and alcoholics are specifically included within the
definition of "handicapped" or "disabled" individuals under these Acts. See 42 U.S.C. 3602(h),
and City of Edmonds, WA v. Oxford House, Inc. 514U.5.725 (1995): Oxford Howe v. City of St.
Louis,77 F.3d 249 (8th Cir. 1996); United States (on behalf of Oxford House) v. Village of
Palatine,3T F.3d 1230 (7th Cir. 1994); United States (on behalf of Oxford House) v. Village of
Audubon,797F. Supp.353,affdwithoutopinion,968F.2d l4(3dCir. 1992); OxfordHouse, Inc.
v. Town of Babylo4 819 F. Supp. 1179 (E.D.N.Y. 1993); (hford House v. Township of Cherry
Hil|,799F. Supp.450@.N.1.1992); OxfordHouse-Evergreenv.CityofPlainJield,T69F.Supp.
I 197 (D.N.J. 1991), and; Tsombanidis, and Oxford House, Inc. v. City of West Haven,
Connecticut, 180 F. Supp. 262 (Ct. 2001).
As members of a protected class under the FHA, Oxford Houses are protected against
discriminatory zoning practices. As such, the issue of whether an Oxford House is in violation of
local zoning ordinances is not relevant to the question of federal law. See United States (on behalf
of @ford House) v. Village of AuduDon, supra. The FHA prohibis discriminatory land use
decisions by local govemments, even when such decisions are "ostensibly authorized by local
ordinance." Sen Oxford House Evergreen v. City of Plainjield, supra; also42 U.S.C. Section3615
("any law ofa State, a political subdivision, or other j urisdiction that purports to require or permit
any action that would be a discriminatory housing practice under this subchapter shall to that extent
be invalid under the Fair Housing Act").
The aforementioned prohibition under the FIIA against zoning discrimination by local
govemments includes the requirement that local govemments make reasonable accommodations
in their mning ordinances to allow the operation of Oxford Houses. Specifically, 42 U.S.C.
3604(0(3XB), defines discrimination to include a "refusal to make reasonable accommodations in
rules, policies, practices, or services, when such accommodations may be necessary to afford such
handicapped penon equal opportunity to use and enjoy a dwelling." See Oxford House v. City of
St. Louis, slorpra; Oxford House v. City of Plainfield, srpra; Oxford House v. Township of Cherry
Hill, srurpr4 and; Oxford House, Inc. v. Town of Babylor2, supra. The County's zoning ordinance
is ostensibly a means for the County, through its BOA, to provide the required reasonable
accommodation.
The Section 63 of the County Zoning Ordinance follows federal law by requiring a
reasonable accommodation when the request is both reasonable and necessary as each is defined
in the law and set forth in Section 63.1 of the ordinance. Specifically, the ordinance defines
reasonable and necessary as follows:
l. "Reasonable". An accommodation will be determined reasonable if it would not
undermine the legitimate purposes and effects of the existing zoning regulations,
and if it would not impose significant financial and administrative burdens upon
the County and/or constitute a substantial or fundamental alteration ofthe County's
ordinance provisions; and
2. "Necessary". An accommodation will be determined necessary if it would provide
direct or meaningfirl therapeutic amelioration of the effects of the particular
disability or handicap, and would afford handicapped or disabled persons equal
opporhrnity to enjoy and use housing in residential districts ofthe County.
5
Under Section 63. I of the ordinance, upon the finding that the request by Oxford House is
reasonable and necessary as defined above, the BOA shall grant the requested exception to allow
8 persons to live at 5014 Richardson Drive. The reasonableness and necessity as to Oxford House
Smithcreek at 5014 fuchardson Drive are set forth below.
REQUEST IS REASONABLE
No Burden
There is no evidence of any financial or administrative burden on the County by the
existence ofthe Oxford House. In fact, the Oxford House provides a free benefit to the County by
providing housing and aiding in the recovery of those recovering from alcoholism and drug
addiction.
Zoning Scheme Not Undermined or Fundamentally Altered
The Oxford House does not undermine the purposes of the County's zoning ordinance.
The ordinance expressly allows for this type of housing. The ordinance also allows for this type
of housing at this particular location. Further, the ordinance was recently amended to provide for
an exception or reasonable accommodation for the request made herein. The ordinance itself is
proofthat the Oxford House does not undermine the County's ordinance or firndamentally alter its
zoning scheme. There are other Oxford Houses in the County in similar zoning districts, and none
have undermined or fundamentally altered the County's zoning scheme.
REQUEST IS NECESSARY
Therapeutically Benelicial
By its very nature the Oxford House model's therapeutic benefit is derived solely from its
residents. As described above, in an Oxford House there are no counselors, managers, care
providers or outside personnel that provide any therapeutic services. Oxford Houses are not like
6
traditional group homes, halfiray houses, or family care homes - all of which have managers and
provide some services to their residents. In such traditional homes a lesser number of residents
will not have any therapeutic impact. Not so in an Oxford House. The quality ofthe relationship
among the residents in an Oxford House is one of mutual support and bonding, providing an
ameliorative therapeutic benefit which aids each resident in their recovery from alcoholism or drug
addiction. As a result ofthis therapeutic benefit, those living in an Oxford House are more likely
to remain clean and sober than those living on their own.l
The average number of residents in an Oxford House in North Carolina is eight (8). The
average vacancy rate for Oxford Houses in North Carolina is one (l), meaning that with an allowed
maximum capacity of 8, Oxford House Smithcreek will usually have just 7 residents. Ifthe house
is not granted the requested exception, then it would be limited to 6 residents. With the average
vacancy rate, a6 person Oxford House would usually have only 5 residents. As set forth above
the oxford House model requires a minimum of 6 residents at all time to hold all required offices
(president, vice presiden! secretary, treasurer, comptroller, and coordinator). A house that falls
below six residents on a regular basis can lose it charter from Oxford House, Inc. Without the
requested accommodation/exception, Oxford House Smithcreek would be put in jeopardy of
failing for lack ofenough residents. Failure ofthe house means it would close, causing its residents
to lose their home and support in their recovery. Invariably some would relapse. Relapse could be
I DePaul University study that followed 897 residents in 219 Oxford Houses across the country for
27 months found that only 13% relapsed. A peer-reviewed published report of that study in Addictive
Behaviors 32 (2007) can be downloaded at the Oxford House, Inc. website under
"PublicationVEvaluations/DePaul." In another study 150 individuals getting out ofprimary treatment were
divided into two groups of75 each with one group going to Oxford Houses and the other group going to
normal living situations, each group was followed for two yeam after treatment and the Oxford House group
did substantially better in staying clean and sober - 660/o v.33oh. American Joumal ofPublic Health, Oct
2006; Vol. 96, ppl727 -1729.
7
permanent and fatal. The ameliorative therapeutic benefit of the requested exception here is a
threshold, make or break degree of amelioration.
An Equal Opportunity to Use and Enjoy Housing of Their Choice
Finally, the Oxford House Smithcreek is home to its residents. The requested
accommodation/exception provides the residents an equal opporhurity to use and enjoy housing of
their choice2.
Without the requested accommodation the house would close as noted above. Closing of
the house cause some residents to relapse, with potentially fatal consequences as noted above.
Additionally, finding another house to rent to potentially relocate the Oxford House would be
extremely difficult. Finding landlords willing to rent to Oxford House is difficult because ofthe
stigma of alcoholism and drug addiction, the fear of zoning problems, neighbor ignorance and
opposition, and finally because Oxford House requires long-term leases into which many landlords
simply will not often enter.
2 The County's new ordinance falls short ofwhat federal law requires as to equal opporhrnity. The
Iaw requires notjust an equal opportunity to enjoy and use housing "in residential districts in the County",
but requires equal opportunity for disabled person to enjoy and using housing of lheir choice. Several
courts have held the FHA protects the rights ofdisabled persons to use and enjoy the oarticular dwellins of
their choice. See, e.g., Hovson's, Inc.v. Township of Brick,89F.3d 1096, I103-06 (3rd,Cir.1996); United
States v. City of Jackson,3lE F.Supp.2d 395, 416 (S.D. Miss. 2002) (FIIA "guarantee[s] that the disabled
be afforded equal opportunity to live, not in Eq49 residence in the community, but rather in the residence
of their choice"); ARC of New Jersey, Inc. v. State of New Jersey, 950 F. Supp. 637, 645 (D. N.J. 1996)
("Such ceiling quotas [imposed via group home spacing rules] improperly limit the ability ofhandicapped
persons 'to live in the residence oftheir choice in the community,' House Report at 24, even if imposed in
the name of integration or 'declustering"'); @ord House, lnc. v. Town of Babylon, 819 F. Supp. I I 79,
I lE5 n.l0 (E.D. N.Y. 1993) (FHA "dictates that a handicapped individual must be allowed to enjoy a
particular dwelling, not just some dwelling somewhere in the town"); Oxford House-Evergreen v. City of
Plainfield,769 F. Supp. 1329, 1344 (D. N.J. 1991) (defense based on existence of altemative locations in
the city for group home held 'Vithout merit").
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ZBA-944 Page 1 of 4
VARIANCE REQUEST
ZONING BOARD OF ADJUSTMENT
October 22, 2019
CASE: ZBA-944
PETITIONER: Kurt R. Huff and Catherine A. Oliverio, property owners
REQUEST: Variance from the 25’ front yard setback requirement per Section 51.6-2(3) of the New Hanover
County Zoning Ordinance.
LOCATION: 210 Windy Hills Drive
PID: R07908-005-025-000
ZONING: R-15, Residential District
ACREAGE: 0.43 Acres
PETITIONER’S REQUEST:
Kurt Huff and Catherine Oliverio, property owners, are requesting a variance from the 25’ front yard setback
requirement for R-15 per Section 51.6-2 of the New Hanover County Zoning Ordinance. The property is located
at 210 Windy Hills Drive, Wilmington, NC.
BACKGROUND AND ORDINANCE CONSIDERATIONS:
In July 2018, the property owner’s agents submitted an application to construct a single-family residence on the
site. The submitted site plan showed the front staircase encroaching approximately 9.7’ into the required front
yard setback. After proceeding through the review process, the application did receive zoning approval by staff
with no indication that a revision or alteration to the plans was needed, although the zoning conditions document
stated the structure was subject to a front yard setback of 25’.
On or about July 20, 2019, staff was notified that the front staircase appeared to encroach into the required front
yard setback as observed during a routine building inspection during the construction process. At this time, staff
advised the building contractor that despite the approval of the site plan, the structure would have to be brought
into compliance with the applicable provisions within the zoning ordinance. As a result of the inadvertent staff
approval of the site plan, county staff allowed construction to proceed and the building contractor and
homeowner were advised of options to bring the structure into compliance with the front yard setback
requirement. The applicant elected to continue construction of the home as designed and to pursue a variance
to the front yard setback requirement in an attempt to bring the structure into compliance, and a Certificate of
Occupancy was obtained on September 20, 2019.
ZBA-944 Page 2 of 4
Submitted site plan showing encroachment of staircase into 25' front yard setback.
The County’s Zoning Ordinance does not have a specific allowance for features such as decks, staircases, or
porches to encroach into any required yard area; and these features are considered to be part of the main
structure per the definition of Structure and/or Building:
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. (12/17/2012)
As such, a home and any deck, staircase, or porch serving the structure would have to adhere to the yard
requirements or relaxed yard requirements based on an approved variance.
New Hanover County’s zoning and subdivision regulations allow for subdivisions to utilize Performance or
Conventional requirements. Under Conventional requirements, lots that are created must adhere to the
dimensional requirements for the zoning district. For example, lots created under Conventional requirements in
the R-15 zoning district must meet the dimensional requirements of Section 51.6-2:
Section 51.6: R-15 Residential District
51.6-1: The R-15 Residential District is established as a district in which the principal use of land is for
residential purposes and to insure that residential development not having access to public water and
Staircase
ZBA-944 Page 3 of 4
dependent upon septic tanks for sewage disposal will occur at sufficiently low densities to insure a healthful
environment.
51.6-2: Conventional Residential Regulations
Dimensional Requirements:
(1) Minimum lot area 15,000 sq.ft. Duplex 25,000 sq.ft.
(2) Minimum lot width 80 feet
(3) Minimum front yard 25 feet
(4) Minimum side yard 10 feet
(5) Minimum rear yard 20 feet
(6) Maximum height 35 feet
Setbacks for structures on Conventional Residential lots are dictated by the yard requirements of the zoning
district of the property, per the definitions of Setback Line and Yard in the Zoning Ordinance:
Setback Line - The line on the front, rear, and sides of a lot, which delineates the area upon which a
structure may be built and maintained. (23-28)
Yard - A required open space unoccupied and unobstructed by a structure or portion of a structure
provided, however, that fences, walls, poles, posts, and other customary yard accessories, ornaments and
furniture may be permitted in any yard subject to height limitations and requirements limiting obstruction
of visibility. (1/5/81) Private driveways or easements serving three or fewer lots pursuant to Section 65
may also be permitted in any yard. (3/8/93) HVAC units elevated to comply with flood plain regulations
may be permitted in any side yard provided the supporting structure is at least (5) feet from the adjoining
property line. (8/18/03) (23-42)
Yard, Front - A yard extending between side lot lines across the front of a lot adjoining a public or private
street. The depth of the required front yard shall be measured at right angles to a straight line
joining the foremost points of the side lot lines, and in such a manner that the yard established
shall provide minimum depth parallel to the front lot line. (7/6/92) (23-43)
The deed and record plat for the subject property, which was recorded in 2002, depict the lot as being Lot 2 of
the Avalon Oaks Subdivision, which county records indicate is a conventional subdivision and thus must adhere to
the yard requirements for R-15 in Section 51.6-2.
The applicant contends that the variance is necessary as the plans were duly submitted and approved by the
county, and that all necessary inspections were conducted. In addition, the applicant contends the stairs are
necessary in their location to provide access to the structure, which is required to be elevated due to its’ location
in the VE Special Flood Hazard Area.
In summary, the petitioner is requesting a variance of approximately 15’ from the 25’ front yard requirement of
Section 51.6-2(3). If approved, the variance would allow the entry staircase to remain in its current position with
a 9.7’ encroachment into the front yard setback.
ZBA-944 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.
ORDER TO GRANT/DENY A VARIANCE – Case ZBA-944
The Zoning Board of Adjustment for New Hanover County, having held a public hearing on October 22,
2019 to consider application number ZBA-944, submitted by Kurt Huff and Catherine Oliverio, a request
for a variance to use the property located at 210 Windy Hills Lane 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 front yard setback requirement in Section 51.6-2(3) of the New
Hanover County 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 to allow a variance from the front yard setback requirement in
Section 51.6-2(3) of the New Hanover County Zoning Ordinance be GRANTED/DENIED, subject to the
following conditions, if any:
ORDERED this 22nd day of October, 2019.
____________________________________
Ray Bray, Chairman
Attest:
____________________________________
Kenneth Vafier, Executive Secretary to the Board
MYRTLEGROVERDCase: ZBA-944
Address: 210 Windy Hills Dr
Variance Request: Variance from front yard setback
Applicant and Owner: Kurt Huff
New Hanover County Zoning Board of Adjustment
Vicinity Map
October 22, 2019
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Case: ZBA-944
Address: 210 Windy Hills Dr
Variance Request: Variance from front yard setback
Applicant and Owner: Kurt Huff
New Hanover County Zoning Board of Adjustment
Aerial Map
October 22, 2019
R 150
Feet