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7-28-20 ZBA Agenda Packet NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON, NORTH CAROLINA 28403 MEMBERS OF THE BOARD Cameron Moore, Chairman Mark Nabell, Vice-Chair Hank Adams Kristin Freeman Raymond Bray BOARD ALTERNATES Pete DeVita Michael Keenan, Sr. Richard Kern Wayne Clark, Director of Planning & Land Use Sharon Huffman, Deputy County Attorney July 28, 2020, 5:30 PM I. Call Meeting to Order (Chairman Cameron Moore) II. Approval of June Minutes (currently in draft status) June Member Attendees: Cameron Moore, Mark Nabell, Pete DeVita, Kristin Freeman, Michael Keenan III. Old Business Case ZBA-949 - Gregory Alan Heafner, PA, applicant, on behalf of Gary and Lisa Hooker, property owners, is requesting a reasonable accommodation under the Federal Fair Housing Act per Section 10.3.13 of the Unified Development Ordinance to allow up to 8 residents in a group home located at 6601 Newbury Way. (This item was continued from the June 23, 2020 meeting.) IV. Regular Items of Business VI. Other Business VII. Adjourn 1 MINUTES ZONING BOARD OF ADJUSTMENT DRAFT 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, June 23, 2020. Members Present Members Absent Cameron Moore, Chairman Hank Adams Mark Nabell, Vice-Chair Ray Bray Michael Keenan Richard Kern Kristin Freeman Pete DeVita Ex Officio Members Present Ken Vafier, Executive Secretary Sharon Huffman, Deputy County Attorney Sheighla Temple, Zoning Official Denise Brown, Clerk The meeting was called to order at 5:30P.M. by the Chairman, Mr. Cameron Moore. Mr. Moore 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 Unified Development Ordinance. The appellants have thirty days in which to appeal any decision made by the Board to Superior Court. APPROVAL OF FEBUARY 25, 2020 MEETING MINUTES Following a motion by Mr. Keenan and seconded by Vice-Chair Nabell the minutes from the February 25, 2020 meeting minutes were unanimously approved. Chairman Moore informed Board members that the applicant from the second case on today’s agenda is present to request a continuance of the case hearing. Ms. Jacklyn Feliciano, on behalf of the Oxford House, appeared requesting CASE ZBA-949 be continued to the Board’s next scheduled meeting on July 28, 2020. Ms. Feliciano stated the presiding attorney was unable to attend due to late notice of the meeting. Mr. DeVita made a motion for ZBA-949 be heard at the next scheduled meeting on July 28, 2020. Mr. Keenan second the motion. All ayes. Chairman Moore informed residents who were in attendance for the ZBA-949 meeting to contact staff and or the Oxford House representative after today’s meeting for regulations related to the case. 2 CASE ZBA-928 (continued from February 25, 2020 meeting) Chairman Moore explained witnesses sworn in at the February 25, 2020 meeting remain under oath and do not require to be sworn in for testimony. Chairman Moore stated at the February 25, 2020 meeting, after conducting a quasi-judicial hearing on the request for a variance from the withholding of permits penalty for unauthorized removal of regulated trees, this item was ultimately continued by the Board in order for the applicant to propose mitigation for the unauthorized tree clearing. The applicant has provided documentation to staff detailing actions that have been performed in order to provide mitigation. Ms. Susan Moore Skinner, applicant and property owner, stated they were unaware of a permit was required for the tree harvest. Also, Ms. Skinner stated she was not sure if the logger had obtained a forestry management plan. Ms. Moore presented the following as mitigation actions for the unauthorized tree clearing: 1. The applicant requests to reduce the 3-year penalty to one year, to conclude on August 9, 2020. 2. The inclusion of approximately 8, 000 seedling pines were replanted onsite in February 2020. 3. The provision of a written Forestry plan for the property by a certified NC Forestry. 4. Examination of the drainage ditch on March 17, 2020 where it was observed that the ditch was draining properly. STAFF OVERVIEW: Mr. Vafier stated that currently the tree line remains intact as related to the previous clearing. Mr. Vafier stated the applicant has provided some mitigation measures due to the clearing as requested by the Board at the February meeting. Mr. Vafier stated the vacant land is in the RA zoning district, and a new buyer would be responsible for buffers along Castle Hayne Road if the site is developed. Mr. Vafier stated if a forestry plan would have been previously provided to staff prior to conducting the timber harvest, the applicant would not need a variance. Sharon Huffman - County Attorney Ms. Huffman stated that today’s hearing was an approved continuance requested by the applicant and approved by Board members at the February 25, 2020 meeting. The public hearing has not been opened, the applicant is to present mitigation measures to the Board in support of a variance approval. Ms. Huffman stated the Board must have language to draft an order if they decide to approve the variance. There was no one present to speak in opposition to granting the variance request. BOARD DISCUSSION Chairman Moore stated the applicant obtained a contractor to perform the tree harvest and a permit was not obtained and there is no forestry plan on record with the county. Mr. Keenan stated that the applicant presents a hardship due to the lack of of a tree removal permit which could result in loss of sale of property. 3 Mr. Nabell stated that the applicant was not aware of the tree harvest ordinance. Mr. DeVita made a comment that there has been a tree harvest regulation for years. Mr. DeVita stated the applicant was not aware a tree permit was not required and it was not their fault. The applicant thought they were in regulation due to the land has been previously harvest. Mr. DeVita asked what responsibility did the applicant have prior to the tree harvest had they obtained a tree harvest permit. Mr. DeVita made a motion to approve based on the applicant’s proposed mitigation. Chairman Moore asked if Mr. DeVita would include the facts of findings in his motion as to assist staff in language in drafting an order of the approved variance. Mr. DeVita made a motion to include conditions 1, 2, 4 and 5 of the proposed mitigation by the applicant as submitted. Vice-Chair Nabell second the motion. The Board was unanimous in approving the applicant’s variance request with approved mitigation actions. PRELIMARY FINDINGS OF FACT: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the (3) year withholding of development approvals in Section 5.3.3 B of the New Hanover County Unified Development Ordinance, that an unnecessary hardship would result. This conclusion is based on the following FINDINGS OF FACT:  There is potential loss of property value as a result of the 3- year withholding of development clause.  Proposed mitigation actions, including tree replanting and obtaining a forestry management plan, have already taken place. 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 property has existed as a tree farm since 1924 which was a contributing factor in overlooking current tree removal policies. 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 owner hired a contractor who did not obtain a tree removal permit or exemption, leading to the applicant to not be directly at fault. 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  All proposed mitigation actions provide substantial justice as penalty and carry out the intent of the ordinance. On a motion by Mr. DeVita. and seconded by Vice-Chair Nabell the Board voted 5-0 to grant the variance with specific conditions. 1) The 3-year withholding of permits is reduced to one year, to conclude on August 9, 2020; 2) The inclusion of approximately 8,000 seedling pines which were replanted onsite in February 2020; 3) The provision of a written forestry plan for the property by a certified N.C. Forester; and 4) Examination of the drainage ditch on March 17, 2020 where it was observed that the ditch was draining properly along Castle Hayne Road, appeared in satisfactory condition. There being no further business before the Board, it was properly moved by Mr. DeVita and seconded by Mr. Keenan to adjourn the meeting. All ayes. _____________________________________ _________________________________ Executive Secretary Chairman Date ________________________________ ZBA-949 Page 1 of 4 REASONABLE ACCOMMODATION REQUEST ZONING BOARD OF ADJUSTMENT July 28, 2020 CASE: ZBA-949 PETITIONER: Gregory Alan Heafner, PA, applicant, on behalf of Gary and Lisa Hooker, property owners. REQUEST: Reasonable accommodation request under the Federal Fair Housing Act per Section 10.3.13 of the Unified Development Ordinance to allow up to 8 disabled persons residing together in a group home. LOCATION: 6601 Newbury Way PID: R03515-006-006-000 ZONING: R-15, Residential District 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 Unified Development Ordinance allows up to six disabled persons to reside in a group home by-right in the R-15 zoning district per the Principal Use Table in Section 4.2.1: Additional standards for group homes are detailed in Section 4.3.2.B.3, as well as a process described under section 10.3.13 by which a group home provider may petition for a reasonable accommodation under the Federal Fair Housing Act to vary any of the provisions outlined in Section 4.3.2 B, including the number of residents, parking allowance, or distance requirement. Section 10.3.13 also details the eligibility requirements for residents of a Group Home. Group Home – A home in which more than three unrelated persons with a disability, as defined in the U.S. Fair Housing Act, 42 U.S.C. 3601 et seq., live together as a self-supporting and self-sufficient household unit. The Fair Housing Act defines persons with a disability to mean those individuals with mental or physical impairments that substantially limit one or more major life activities. The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness. ZBA-949 Page 2 of 4 4.3.2. RESIDENTIAL USES B. Group Living 3. Group Home Group homes shall comply with the following standards: a. Group homes shall be limited to six disabled persons living together as a self-supporting and self- sufficient household unit. b. No group home shall be occupied or operated without zoning approval. 1. Group homes that are exempt from licensure pursuant to NCGS §122C-22 must recertify their exemption status annually; and 2. Group homes for special needs persons must recertify qualification of all residents as special needs persons annually. c. Parking shall be provided in accordance with Section 5.1: Parking and Loading. d. Group homes shall not be located closer than 2,000 feet to any other existing group home, measured by a straight line from the nearest property lines, irrespective of jurisdictional boundaries. The distance shall be reduced by the right-of-way of a major thoroughfare exceeding 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. e. Reasonable accommodations shall be provided in accordance with Section 10.3.13, Reasonable Accommodation. The Zoning Board of Adjustment is authorized to grant requests for reasonable accommodation after a public hearing and finding that the request meets the criteria below, particularly if it is found to be both “reasonable” and “necessary:” 10.3.13. REASONABLE ACCOMMODATION A. Applicability 1. General This section provides a procedure for reasonable accommodation of eligible persons in cases where the strict application of the standards of this Ordinance would deprive them of their right to equal opportunity to use a dwelling under the federal Fair Housing Act. 2. Eligible Persons a. An eligible person is a person who meets the definition of a disabled or handicapped person under federal law. b. A person recovering from substance abuse is considered a person with a disability or handicap provided they are not currently engaging in the illegal use of controlled substances. (section B discusses the Reasonable Accommodation application and review procedures) ZBA-949 Page 3 of 4 C. Reasonable Accommodation Review Standards 1. A reasonable accommodation application shall be approved on a finding the proposed accommodation: a. Will be used by an individual or individuals with a disability or handicap protected under federal law; b. Is the minimum needed to provide accommodation; and c. Is reasonable and necessary. 2. For the purposes of this section, an accommodation is reasonable if it would not undermine the legitimate purposes of this Ordinance, it does not constitute a substantial alteration of this Ordinance or other County standard, and it will not impose significant financial and administrative burdens upon the County. 3. For the purposes of this section, an accommodation is 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 use housing in residential districts in the County. 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 6601 Newbury Way. According to New Hanover County tax records, the home lies on a 0.35-acre parcel and contains 3,112 square feet of living area. A copy of the property record card is included as an addendum to this staff report. 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 reasonable accommodations for the special circumstances as set forth in 10.3.13 of the New Hanover County Unified Development Ordinance to allow for reasonable accommodation under the Federal Fair Housing Act. The Board of Adjustment shall grant a request for reasonable accommodation under the Federal Fair Housing Act if the Board finds by the greater weight of the evidence that the proposed special exception will be used by an individual or individuals with a disability or handicap protected under federal law, is the minimum needed to provide accommodation, and is both “reasonable” and “necessary.” 1. "Reasonable" - An accommodation will be determined to be reasonable if it would not undermine the legitimate purposes of this Ordinance, it does not constitute a substantial alteration of this Ordinance or other County standard, and it will not impose significant financial and administrative burdens upon the County; 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 persons equal opportunity to use housing in residential districts in the County. ZBA-949 Page 4 of 4 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. 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 REASONABLE ACCOMMODATION REQUEST – Case ZBA-949 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on July 28, 2020 to consider application number ZBA-949, submitted by Gregory Alan Heafner, PA, applicant, on behalf of Gary and Lisa Hooker, property owners, a request 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 6601 Newbury Way, 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 6601 Newbury Way is / is not reasonable. Note: an accommodation will be determined to be reasonable accommodation if it would not undermine the legitimate purposes of this Ordinance, it does not constitute a substantial alteration of this Ordinance or other County standard, and it will not impose significant financial and administrative burdens upon the County. 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 6601 Newbury Way 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 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 REASONABLE ACCOMMODATION under the Federal Fair Housing Act per Section 10.3.13 of the New Hanover County Unified Development Ordinance to allow up to 8 disabled persons to reside together in a group home located at 6601 Newbury Way be GRANTED/DENIED. ORDERED this 28th day of July, 2020. ____________________________________ Cameron Moore, Chairman Attest: ____________________________________ Kenneth Vafier, Executive Secretary to the Board