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12-10-19 Agenda Packet NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON, NORTH CAROLINA 28403 MEMBERS OF THE BOARD Raymond Bray, Chairman Henry “Hank” Adams, Vice-Chair Kristin Freeman Cameron Moore Mark Nabell BOARD ALTERNATES Pete DeVita Richard Kern Michael Keenan, Sr. Wayne Clark, Director of Planning & Land Use Sharon Huffman, Deputy County Attorney December 10, 2019, 5:30 PM I. Call Meeting to Order (Vice-Chairman Hank Adams) II. Election of Chair & Vice-Chair III. Adoption of 2020 Calendar IV. Official Approval of November Minutes (currently in draft status) October Member Attendees: Hank Adams, Kristin Freeman, Brett Keeler, Richard Kern V. Regular Items of Business 1. Case ZBA-947 - Myron Smith, Jr., Thomas Oliver, and Marybeth Lengyel, applicants, are requesting a variance to access standards per Section 61.2-1 of the Zoning Ordinance. The properties are located at 4245 and 4285 Buck Drive. VI. Other Business VII. Adjourn New Hanover County Zoning Board of Adjustment 2020 Meeting and Submission Deadline Schedule Submission Deadline Meeting Date January 7, 2020 January 28, 2020 February 4, 2020 February 25, 2020 March 3, 2020 March 24, 2020 April 7, 2020 April 28, 2020 May 5, 2020 May 26, 2020 June 2, 2020 June 23, 2020 July 7, 2020 July 28, 2020 August 4, 2020 August 25, 2020 September 1, 2020 September 22, 2020 October 6, 2020 October 27, 2020 October 27, 2020 November 10, 2020* November 17, 2020 December 8, 2020* *Date changed due to holiday Unless otherwise posted, the New Hanover County Zoning Board of Adjustment meets on the fourth Tuesday of each month at 5:30pm in the Lucie Harrell Conference Room at the New Hanover County Government Center, 230 Government Center Drive, Wilmington, NC. Any person requesting information regarding a case should contact the New Hanover County Planning and Land Use Department at (910) 798-7116. Zoning Board of Adjustment hearings are quasi-judicial hearings, open to the public. Persons with standing may give evidence and sworn testimony. 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, November 12, 2019. Members Present Members Absent Hank Adams, Vice-Chairman Ray Bray, Chairman Richard Kern Joe Miller Kristin Freeman Cameron Moore Brett Keeler Mark Nabell Ex Officio Members Present Ken Vafier, Executive Secretary Sharon Huffman, Deputy County Attorney Denise Brown, Clerk The meeting was called to order at 5:30 P.M. by the Vice-Chairman, Mr. Hank Adams. Vice-Chairman Adams explained that the Zoning Board is a quasi-judicial board appointed by the Board of Commissioners to consider zoning ordinance variances from residents in New Hanover County where special conditions would create unnecessary hardships. He said the Zoning Board also hears appeals of the County’s interpretation in enforcement of the Zoning Ordinance. The appellants have thirty days in which to appeal any decision made by the Board to Superior Court. FIRST ORDER OF BUSINESS Official approval of the minutes from the meeting held on October 22, 2019. Mr. Keeler noted an error on page eight to Mr. Kenney’s name. The vote was unanimous to approve the minutes with referenced correction. CASE ZBA-945 The Vice-Chairman then swore in County Staff Mr. Ken Vafier. Susan Keelin, variance applicant, on behalf of The Nancy G. Gregg Family, LLC, property owner, is requesting a 15’ side yard setback variance in the R-20S district per Section 51.4 of the Zoning Ordinance. The property is located at 332 Beach Road North on Figure Eight Island. Mr. Vafier stated the home was originally constructed in 1978. The record plat for the property, recorded in MB 18, PG 39 of the New Hanover County Registry in October 1977, contains a note indicating that the side yard setback at the time was 15 feet. At the time of construction, Figure Eight Island was zoned R-20, Residential District, and the minimum side yard setback requirement in the Zoning Ordinance was 15 feet. County records indicate that Figure Eight Island was rezoned to the R-20S District in 1982, and the minimum district requirements would have required a 15’ setback at this time. The applicant provided information stating the residence was renovated in 1984 which included the addition of a garage on the north side of the property and an expansion of the kitchen on the south side. Recently, the property owner has decided to place the property up for sale. As part of the process, a survey of the property was performed on August 27, 2019 which indicated that the structure is 5.6’ from the northern property line, which is an encroachment of 9.4’ into the 15’ required side yard setback. 2 Mr. Vafier stated the structure is 12.8’ from the southern property line, which is an encroachment of 2.2’ to the requirement setback. Mr. Vafier stated researched performed by county staff into the specific reason the 1984 expansion encroached into the side yard setbacks is inconclusive at this time, nor are there any permitting records that date back to the time when the expansion was completed. Mr. Vafier stated at the time, the Gregg family did own 334 Beach Road North, which still exists as a vacant lot on the northern side of the subject property. Mr. Vafier concluded the presentation, stating it is not known if an interpretation applied at the time of the expansion considered lots 332 and 334, which were both owned by the applicant, as being one lot, thus resulting in the consideration of the side yard to extend to the far northern property boundary of lot 334. The Gregg family subsequently sold lot 334 in 1991, and no records exist of any further subdivision or recombination involving either of the two lots. The current owners purchased the property is 1983 and are requesting a variance to the encroachments at the subject site to bring the structure into compliance. Mr. Vafier stated this area is not a performance district which allows flexibility in structure setbacks. There currently is no information to show that the structure is a legal non conformity. Mr. Vafier presented photos of the subject site structure from various angles. The Vice-Chairman then swore in Ms. Susan Keelin, PLLC. Ms. Susan Keelin, PLLC, (Attorney for Gregg Family, LLC (property owners) – Ms. Keelin stated that The Nancy G. Gregg Family, LLC is currently the property owner of the subject site and is seeking a variance to bring the structure into compliance prior to a pending sales offer of the subject site. Ms. Keelin stated the property has changed hands from the previous grantee. However, the property has remained within the Gregg family for 35 years. The most recent survey was performed as a result of the current intention to sell the property. Ms. Keelin stated that the property has been in the family for the past 35 years. The applicant is requesting a variance to bring the structure into compliance in hopes to proceed with the property being sold. Ms. Keelin stated a public records request was made for the property in which drawings from the architect were retrieved from the 1984 renovations. The two adjacent parcels lot 330 & lot 334 were conveyed after 1984 to third party owners. The boundary lines of the lots has remained the same. Ms. Keelin concluded that the applicant meets all four findings as listed for variance approval. This case is peculiar as the current property owner cannot resell the property as is without a variance approval. All building permits must be presented for existing and proposed alteration, there is no evidence to support how the setback alteration came about. The property is now in ownership of the second generation Gregg family who did not create the setback hardship. Ms. Keelin presented a drawing of the subject site that displayed the setback encroachment. Currently the applicant states the kitchen was added on the south side in 1984. Mr. Vafier stated per the New Hanover County Tax record displays a legal sketch of the garage as a separate component. PUBLIC HEARING CLOSED 3 BOARD DISCUSSION The Board inquired as to the initial owners of the subject property and adjacent lots. In addition, the Board asked when the garage was added to the subject site. The Board stated additions done after 2010 and transferred by deed were done by the LLC, and the new owners should not be held responsible for previous owner’s activity despite the family connections. The Board stated there is no information to show when the additional renovation done on the south side was actually completed. The Board stated there has been no complaints about the setback error. PUBLIC HEARING REOPENED Ms. Keelin stated the current property owners have relayed that they have not altered the current footprint. The current owners stated they were aware expansions were done in 1984 but not by them. Ms. Keelin stated she can only state that the current owner has not altered the property in anyway in pursuit of the variance approval. There have been no objections by the community in pursuing the variance. Mr. Vafier stated the Google Earth aerial displays the second garage is visible at the subject site in 2002. Ms. Huffman, Deputy County Attorney - Ms. Huffman relayed to the board to refer to the facts of findings in their decision making. The board is tasked in deciding the current owners did not create the hardship to the subject site. PUBLIC HEARING CLOSED BOARD DECISION On a motion by Mr. Keeler and seconded by Mr. Kern the board voted unanimously to approve the variance request of 2.2’ on the south side and 9.4’ on the north side of subject site based on the following conclusions: 1) It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the side yard setback requirement in Section 51.4-2(4) of the New Hanover County Zoning Ordinance, that an unnecessary hardship would result. This conclusion is based on the following FINDINGS OF FACT:  A considerable reconstruction of the structure on both the north and south sides would have to occur in order to bring the structure into compliance. 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 owner’s possession of 334 Beach Road North may have been a contributing factor in the side yard setback requirement being overlooked when the renovations were done. 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 property changed ownership in 2010, and the renovations to the structure on the north and south sides were done prior to the current owner purchasing the property. 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: 4  There have been no zoning complaints in the years since the construction took place, including prior to the variance hearing. MEETING ADJOURNED. Please note the minutes are not a verbatim record of the proceedings. _________________________________ _________________________________ Executive Secretary Chairman Date: _____________ ZBA-947 Page 1 of 5 VARIANCE REQUEST ZONING BOARD OF ADJUSTMENT DECEMBER 10, 2019 CASE: ZBA-947 PETITIONER: Myron Smith, Jr., Thomas Oliver, and Marybeth Lengyel REQUEST: Variance from the access requirements for structures per Section 61.2-1 of the New Hanover County Zoning Ordinance. LOCATION: 4245, 4285 Buck Drive PID: R01900-001-010-023, R01900-001-010-039 ZONING: R-15, Residential District ACREAGE: 8.4 PETITIONER’S REQUEST: Myron Smith, Jr., Thomas Oliver, and Marybeth Lengyel, applicants, are requesting a variance to access standards per Section 61.2-1 of the Zoning Ordinance. The properties are located at 4245 and 4285 Buck Drive. BACKGROUND AND ORDINANCE CONSIDERATIONS: The subject parcels are two of twelve lots with access to Buck Drive, which is an unimproved, dedicated right-of- way with direct access to Sidbury Road. Mr. Smith and Mr. Oliver are the owners of 4245 Buck Drive (Parcel 1), which is a 7.32-acre parcel, while Ms. Lengyel is the owner of 4285 (Parcel 2), a 1.08-acre parcel directly to the north. Beginning as early as the 1990s, several lots having access to Buck Drive were divided and conveyed via metes and bounds descriptions outside of the county’s prescribed subdivision approval process. As such, certain infrastructure improvements required by the New Hanover County Subdivision Ordinance, specifically the improvement of Buck Drive to the minimum private road standard, did not occur. As a result of this issue, a Notice of Noncompliance was filed in the New Hanover County Register of Deeds in 1995 which stated that building permits would be withheld on certain lots accessing Buck Drive until the necessary improvements were completed. On October 19, 2018, the applicant’s agent requested information from county staff relating to the permitting of a single-family residence on 4245 Buck Drive. On November 13, 2018, county staff responded with a determination that allowing a structure to be permitted on the lot would not comply with the access requirements specified in Section 61.2 of the New Hanover County Zoning Ordinance: Section 61.2: Structures to Have Access 61.2-1: Every structure hereafter erected or moved shall be on a lot adjacent to a road as defined in Section 23-86, or to a right-of-way or easement which was platted and recorded prior to 1969. The following are exempt from the requirements of this Section: (1/5/81) (8/2/82). (1) Lots of record prior to the adoption of this Ordinance that have sufficient area to meet the minimum requirements of the district in which they are located; ZBA-947 Page 2 of 5 (2) Structures that are to be used in conjunction with a bona fide farming operation; and, (3) Building lots having access over a private driveway or easement at least thirty (30) feet in width (5/1/89) to a road as defined in Section 23-86, provided the driveway or easement is an easement appurtenant to three (3) or fewer lots and the easement is solely owned by a lot owner or in common by three (3) or fewer lot owners. “Roads”, as referred to in subsection (3) above, is defined in Section 23-86 as follows: Roads - Any road, highway, way, alley, lane, court, drive, or easement, whether public or private, used as a means of access which meets the minimum requirements for subdivision roads as specified by NCDOT and New Hanover County and which has been duly platted and recorded as per the requirements set forth by New Hanover County. (8/3/87) (23-86) Staff determined that the subject property does not meet any of the exemptions stated in Section 61.2-1, nor is Buck Drive currently constructed to the minimum requirements for NCDOT or private subdivision roads, which are detailed in the NCDOT Subdivision Manual and the New Hanover County Subdivision Ordinance. As staff currently considers Buck Drive a private driveway (as referred to in Section 61.2-1(3)) that is providing access to more than three lots, staff made the interpretation that an additional building permit cannot be granted until the road is improved to NCDOT or private subdivision road standards. The county’s private street requirements and cross sections are depicted in Exhibit A of this summary. Typical section of Buck Drive showing 26' wide travel surface within a 60’ dedicated right-of-way Subsequent to this staff interpretation, an appeal was filed and appeared on the February 2019 agenda. The applicant received a continuance for the case at this meeting, and has since received several additional continuances from the Board in an attempt to resolve the matter outside of a Board of Adjustment hearing. The applicant is now proposing to resurface Buck Drive in an effort to improve the roadway infrastructure to the lots. The private road standard that would be required to be met for a subdivision of more than 4 lots includes a ZBA-947 Page 3 of 5 minimum 45’ right-of-way, 24’ travel surface, and a sidewalk on one side of the street. In addition, the minimum NCDOT local road construction standard is required to be met, which consists of base course and pavement surface specifications. The applicant is proposing to improve the condition of the road by resurfacing it with 4” of ABC stone or other non-compacted parking surface, as well a soil stabilizing fabric overlaying compacted subgrade. This improvement would begin at the intersection of Buck Drive and Sidbury Road and continue north for approximately 1,500 linear feet, including the resurfacing of a “T” or “hammerhead” turnaround north of the subject parcels where Buck Drive is configured with a 3-way intersection. The proposed improvements meet or exceed the minimum right-of-way and travel surface requirements, thus the variance request is specific to relief of the sidewalk construction requirement and the minimum NCDOT local road pavement specifications. Extent of proposed improvements to Buck Drive ZBA-947 Page 4 of 5 The owner of Parcel 1 does intend to further subdivide the parcel into no more than 4 total lots. With the inclusion of Parcel 2, the variance request would provide relief of the access standards specified in Section 61.2-1 to only these 5 potential lots. A potential subdivision of Parcel 1 would be required to meet all other applicable requirements of the county’s Technical Review Committee at the time a further division of the property is proposed. As the proposed improvement to Buck Drive is not anticipated to meet the minimum construction standard referenced in the Subdivision Ordinance, the applicant is requesting a variance from the requirement to build to the standards referenced in the definition of “Road” and further detailed in the Subdivision Ordinance. In addition, the applicant is requesting a variance to exceed the 3-lot limitation on lots being served by a private driveway or access easement by an amount not to exceed 5 additional lots. The applicant has proposed that the variance request be accompanied with the following conditions: 1. Improvement of existing Buck Drive approximately 1,500 feet in length, 26-feet in width, from Sidbury Road to and including the northerly lane at the T-junction of Buck Drive as shown on the Variance Exhibit attached hereto as Exhibit A-2, including 4” ABC Stone or other non-compacted parking surface, geosynthetic soil stabilizer fabric, and compacted subgrade as shown on the Gravel Driveway Section of Exhibit A-2, or to a standard otherwise acceptable to the New Hanover County Fire Marshal. 2. Limiting the density of the subject property to a maximum total of five (5) lots and single-family residences, including any permitted accessory structures allowed under the County ordinances. 3. Maintenance Agreement for improved section of Buck Drive. In summary, the applicant is requesting a variance to allow no more than 5 additional lots to be served from a private driveway or easement, as well as to the requirement to serve the proposed lots by a means of access that would not meet the minimum county private road standard. In lieu of meeting the minimum private road construction standard, the applicant is proposing a resurfacing and improvement to Buck Drive in order to improve the condition of Buck Drive. 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. ZBA-947 Page 5 of 5 Exhibit A New Hanover County Subdivision Ordinance 52-4 Streets (12/10) All streets shall be constructed, inspected, and approved in accordance with the following requirements. (5/88) Private Streets: (a) Streets designated as private shall be constructed to minimum construction standards as adopted by New Hanover County and certified by a professional legally recognized by a State of North Carolina licensing board as being licensed to perform such activities or undertakings. (b) Pavement design shall meet the requirements as specified and shown in the road profiles depicted in Article VIII of the County’s Subdivision Regulations under Appendices & Certificates. (c) Streets designated as private may be allowed in subdivisions once they are reviewed and approved by the County’s Technical Review Committee (TRC). In their review, the TRC will consider unique physical conditions of the property including but not limited to connectivity, topography, geometric design, storm water, tree preservation, ingress and egress, reduction of speed to desirable or safe levels and other safety measures and that sufficient language is provided through a legally established property owner’s association that the streets will be properly maintained. (d) Whenever a private street intersects a U.S., NC highway, or Secondary Road, an approved NCDOT Driveway Permit signed by the District Engineer will be required prior to final plat approval. (e) Private road stubs and dead end streets shall be constructed/paved to the property boundary and shall not contain gates or obstructions to qualify for connectivity standards as stated in Section 41-1 (7)(f). (f) Streets designed as collector roads that accept traffic from local streets will be required to be designated as public and adhere to the standards under public streets as noted above. NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON, NORTH CAROLINA 28403 MEMBERS OF THE BOARD Raymond Bray, Chairman Henry “Hank” Adams, Vice-Chair Kristin Freeman Cameron Moore Mark Nabell BOARD ALTERNATES Pete DeVita Richard Kern Michael Keenan, Sr. Wayne Clark, Director of Planning & Land Use Sharon Huffman, Deputy County Attorney ORDER TO GRANT/DENY A VARIANCE – Case ZBA-947 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on December 10, 2019 to consider application number ZBA-947, submitted by Myron Smith, Jr., Thomas Oliver, and Marybeth Lengyel, applicants and property owners, a request for a variance to use the properties located at 4245 and 4285 Buck Drive 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 structures to have access requirements in Section 61.2-1 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 structures to have access requirements in Section 61.2-1 of the New Hanover County Zoning Ordinance be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 10th day of December, 2019. ____________________________________ Henry Adams, Vice-Chairman Attest: ____________________________________ Kenneth Vafier, Executive Secretary to the Board