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Home My WebLink About2020-09-08 RM Exhibits Exhibit C- Book XL Page � I i NEW HANOVER COUNTY BOARD OF COMMISSIONERS E g EMERGENCY PREPAREDNESS MONTH SEPTEMBER 2020 WHEREAS, one of the most profound duties of government is ensuring the safety and security of its citizens from emergencies and disasters of all kinds; and WHEREAS, large scale emergencies and disasters affecting New Hanover County include hurricanes, severe weather, flooding, tornadoes, drought, public health emergencies, and numerous smaller yet significant events that occur daily across the county; and WHEREAS, all citizens and businesses have a responsibility to contribute to their own safety and security as part of a larger effort by the county to strengthen its ability to prepare for, prevent, respond to, and recover from unexpected emergencies and incidents in cooperation with regional partners,the State of North Carolina and the national government;and WHEREAS, New Hanover County citizens and businesses can greatly reduce the potential for death, injury, and property loss by taking a few simple steps such as assembling a disaster kit, making an emergency plan, keeping informed of hazards around them, and volunteering to help in times of crisis; and WHEREAS, preparedness activities are supported by a wide range of local and state initiatives, including the New Hanover County Community Emergency Response Team, New Hanover Disaster Coalition, other public safety partner and community-based and community focused volunteer opportunities, along with ongoing public awareness and preparedness campaigns focused on fire safety, emergency management, public health, and crime awareness; and WHEREAS, the combined actions of local, state, and federal agencies working in partnership with an informed and ready private sector and citizenry can transcend the fear of unexpected emergencies and disasters into proactive preparedness that improves the lives, safety, and security of all New Hanover County citizens. NOW, THEREFORE, BE IT PROCLAIMED by the New Hanover County Board of Commissioners that September 2020 will be recognized as "Emergency Preparedness Month" in New Hanover County. The board calls this observance to the attention of all New Hanover County businesses and citizens. ADOPTED this the 8th day of September, 2020. N A •VE• 0 N u Olson-Boseman, Chair ATTES : Ky rleigh G. Cr II, Clerk to the Board • Exhibit Book )(t1E Paget-726k AGENDA: September 8,2020 NEW HANOVER COUNTY BOARD OF COMMISSIONERS AN ORDINANCE AMENDING THE FISCAL YEAR 2021 BUDGET BE IT ORDAINED by the Board of County Commissioners of New Hanover County,North Carolina,that the following Budget Amendment(s)be made to the annual budget ordinance for the fiscal year ending June 30,2021. Section 1: Details of Budget Amendment Strategic Focus Area: Strong Financial Performance Strategic Objective(s): Control costs and manage to the budget Fund: General Department: Various Expenditure: Decrease Increase Total BA 21-004 General Government $ 1,641,403.46 $ 1,641,403.46 BA 21-004 Human Services $ 106,948.89 $ 106,948.89 BA 21-004 Public Safety $ 786,484.62 $ 786,484.62 BA 21-004 Economic and Physical Development $ 609,565.00 $ 609,565.00 BA 21-004 Culture and Recreation $ 2001342.00 $ 200,342.00 Total $ - , $ 3,344,743.97 IA 3,344,743.97 Revenue: Decrease Increase Total BA 21-004 Appropriated Fund Balance $ 2,798,737.73 $ 2,798,737.73 BA 21-004 Federal Grants $ 436,682.23 $ 436,682.23 BA 21-004 Grant-Dept of Homeland Security $ 4,245.92 $ 4,245.92 BA 21-004 Grant-Dept HHS $ 5,100.00 $ 5,100.00 BA 21-004 State Grant $ 99,978.09 I$ 99,978.09 Total $ - $ 3,344,743.97 $ 3,344,743.97 Prior to Actions Total if Actions Taken Today General Fund Budget $ 303,240,373.00 $ 306,585,116.97 Appropriated Fund Balance $ 4,915,277.00 $ 8,260,020.97 Fund:Reappraisal Reserve Fund Department:Tax Expenditure: Decrease Increase Total BA 21-004 Reappraisal Reserve Fund $ 75,850.00 $ 75,850.00 Total $ - I $ 75,850.00 I $ 75,850.00 Revenue: Decrease Increase Total BA 21-004 Appropriated Fund Balance $ 75,850.00 $ 75,850.00 Total $ - I S 75,850.00 1$ 75,850.00 Prior to Actions Total if Actions Taken Today Reappraisal Reserve Fund Budget $ 289,661.00 $ 365,511.00 Appropriated Fund Balance $ 139,661.00 $ 215,511.00 Fund:Room Occupancy Tax(ROT) Department:Finance Expenditure: Decrease Increase Total BA 21-004 Room Occupancy Tax(ROT) $ 143,561.44 $ 143,561.44 Total $ - $ 143,561.44) $ 143,561.44, Revenue: Decrease Increase Total BA 21-004 Appropriated Fund Balance $ 143,561.44 $ 143,561.44 Total $ - $ 143,561.441$ 143,561.44 Prior to Actions Total if Actions Taken Today ROT Budget $ 6,149,162.00 $ 6,292,723.44 Appropriated Fund Balance $ - $ 143,561.44 Fund:Fire Rescue Department:Fire Rescue Expenditure: Decrease Increase Total BA 21-004 Public Safety $ 40,490.20 $ 40,490.20 Total 1---- $ 40,490.201 $ 40,490.20 Revenue: Decrease Increase Total BA 21-004 Appropriated Fund Balance $ 40,490.20 $ 40,490.20 Total -$ - 1$ 40,490.20 $ 40,490.20 Prior to Actions Total if Actions Taken Today Fire Rescue Budget $ 16,709,065.00 $ 16,749,555.20 Appropriated Fund Balance $ 576,858.00 $ 617,348.20 Fund:Local Law Enforcement Block Grant(LLEBG) Department:Sheriff __ Expenditure: Decrease Increase Total BA 21-004 Public Safety $ 4,949.70 $ 4,949.70 Total $ - $ 4,949.70 I$ 4,949.70 Revenue: Decrease Increase Total BA 21-004 Appropriated Fund Balance $ 4,949.70 $ 4,949.70 Total $ - _ $ 4,949.701$ 4,949.70 Prior to Actions Total if Actions Taken Today LLEBG Budget $ - $ 4,949.70 Appropriated Fund Balance $ - $ 4,949.70 Fund:Revolving Loan Program Department:Revolving Loan Program Expenditure: Decrease Increase Total BA 21-004 Revolving Loan Program $ 2,433.00 $ 2,433.00 Total $ - $ 2,433.00 I $ 2,433.00 Revenue: Decrease Increase Total BA 21-004 Appropriated Fund Balance $ 2,433.00 S 2,433.00 Total $ - I $ 2,433.00 I $ 2,433.00 Prior to Actions Total if Actions Taken Today Revolving Loan Program Budget $ 24,000.00 $ 26,433.00 Appropriated Fund Balance $ 14,000.00 $ 16,433.00 Fund:Environmental Management Department:Environmental Management _ Expenditure: Decrease Increase Total BA 21-004 Environmental Management $ 316,870.23 $ 316,870.23 Total $ - I $ 316,870.23 I $ 316,870.23 Revenue: Decrease Increase Total BA 21-004 Appropriated Fund Balance $ 316,870.23 $ 316,870.23 Total $ - $ 316,870.23 1$ 316,870.23 Prior to Actions Total if Actions Taken Today Environmental Mgt.Budget $ 24,313,597.00 $ 24,630,467.23 Appropriated Fund Balance $ 6,871,948.00 $ 7,188,818.23 Section 2: Explanation BA 21-004 budgets for purchase orders that were carried forward from FYI9-20 to FY20-21.These purchase orders were open and had outstanding balances that require payment in FY20-21 when goods and services are delivered. Section 3: Documentation of Adoption This ordinance shall be effective upon its adoption. NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of New Hanover County,North Carolina, that the Ordinance for Budget Amendment(s)21-004 amending the annual budget ordinance for the fiscal year ending June 30, 2021,is adopted. Adopted,this 8th day of September,2020. O�)STY•N (SEAL) G O��y O a j'ion-Bos hair eman 3 ^ q 004.00Ares.Q._ Kym leigh G.Crowell, erk to the Board •FSTA EL I5110, 3 Exhibit �! Book )L1 Page 1 7v .L17 AGENDA: September 8,2020 NEW HANOVER COUNTY BOARD OF COMMISSIONERS AN ORDINANCE AMENDING THE FISCAL YEAR 2021 BUDGET BE IT ORDAINED by the Board of County Commissioners of New Hanover County,North Carolina,that the following Budget Amendment(s)be made to the annual budget ordinance for the fiscal year ending June 30,2021. Section 1: Details of Budget Amendment Strategic Focus Area: Strong Financial Performance Strategic Objective(s): Proactively manage the county budget Fund: General Department: Various Expenditure: Decrease Increase Total BA 21-005 Grant Expenditures by Function General Government $ 4,326,322 $ 4,326,322 Human Services $ 452,086 $ 452,086 Public Safety $ 2,733,695 $ 2,733,695 Total $ - I $ 7,512,103 0$ 7,512,103 Revenue: Decrease Increase Total BA 21-005 Grant Revenues by Function General Government $ 4,326,322 $ 4,326,322 Human Services $ 452,086 $ 452,086 Public Safety $ 2,721,252 $ 2,721,252 BA 21-005 Appropriated Fund Balance $ 12,443 $ 12,443 Total $ - I $ 7,512,103 0$ 7,512,103 Prior to Actions Total if Actions Taken Today General Fund Budget $ 308,011,822 $ 315,523,925 Appropriated Fund Balance $ 4,676,327 $ 4,688,770 Fund: Special Revenue Fire Rescue Department: Fire Rescue Expenditure: Decrease Increase Total BA 21-005 Grant Expenditures $ 31,296 $ 31,296 Total $ - I $ 31,296 0$ 31,296 Revenue: Decrease Increase Total BA 21-005 Grant Revenues $ 31,296 $ 31,296 Total $ - I $ 31,296 if$ 31,296 Prior to Actions Total if Actions Taken , Today Fire Rescue Fund Budget $ 16,742,567 $ 16,773,863 Appropriated Fund Balance $ 576,858 $ 576,858 Fund: Local Law Enforcement Block Grant Fund Department: Sheriff Expenditure: Decrease Increase Total BA 21-005 Grant Expenditures $ 70,732 $ 70,732 Total $ - I $ 70,732 If$ 70,732 Revenue: Decrease Increase Total BA 21-005 Grant Revenues $ 70,732 $ 70,732 Total $ - I $ 70,732 Q$ 70,732 Prior to Actions Total if Actions Taken Today LLE Block Grant Fund Budget I $ - I $ 70,732 Section 2: Explanation BA 21-005 will rollover unexpended grant expenditures and revenues from FY20 to FY21 for the grants that did not expire on June 30,2020. The General Fund's Appropriated Fund Balance will be increased by$12,443,which represents the county's cash match. The grant rollover for the General Fund is$7,512,103,the Fire Rescue fund is $31,296 and the Local Law Enforcement Block Grant fund is$70,732. The total amount of grant rollovers for FY21 is $7,614,131. Section 3: Documentation of Adoption This ordinance shall be effective upon its adoption. NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of New Hanover County,North Carolina,that the Ordinance for Budget Amendment(s)21-005 amending the annual budget ordinance for the fiscal year ending June 30,2021,is adopted. Adopted,this 8th day of September,2020. (SEAL) O)NTY•�U G <4./� 4;?y on- hair L '�".- _ � ATTES 61. 0.Adtimge z 2 4#' it Kymb eigh G.Crow lerk to the Board •F'�ARCISHEcl% Exhibit. Book X44 Page AGENDA: September 8,2020 NEW HANOVER COUNTY BOARD OF COMMISSIONERS AN ORDINANCE AMENDING THE FISCAL YEAR 2021 BUDGET BE IT ORDAINED by the Board of County Commissioners of New Hanover County,North Carolina,that the following Budget Amendment(s)be made to the annual budget ordinance for the fiscal year ending June 30,2021. Section 1: Details of Budget Amendment Strategic Focus Area: Strong Financial Performance Strategic Objective(s): Proactively manage the county budget Fund: General Department: Emergency Management Expenditure: Decrease Increase Total BA 21-007 Public Safety-Hurricane Florence _ $ 211,881 $ 211,881 Total $ - $ 211,881 $ 211,881 Revenue: Decrease Increase Total BA 21-007 Appropriated Fund Balance $ 211,881 I$ 211,881 Total $ - $ 211,881 $ 211,881 Prior to Actions Total if Actions Today Taken Departmental Budget $ 2,325,630 $ 2,537,511 Appropriated Fund Balance $ 4,915,277 $ 5,127,158 Fund: Environmental Management Enterprise Fund Department: Environmental Management-Hurricane Expenditure: Decrease Increase Total BA 21-007 Environmental Management-Hurricane $ 28,991 $ 28,991 Total $ - $ 28,991 $ 28,991 Revenue: Decrease Increase Total BA 21-007 Appropriated Fund Balance $ 28,991 $ 28,991 Total $ - $ 28,991 $ 28,991 Prior to Actions Total if Actions Today Taken Departmental Budget $ 31,039,336 $ 31,068,327 Appropriated Fund Balance $ 6,871,948 $ 6,900,939 Section 2: Explanation BA 21-007 will roll forward the amounts budgeted for Hurricane Florence in fiscal year 2020 to fiscal year 2021 for incomplete projects. The projects currently in process are repairs for the Judicial building,replacement of exhibit displays for the Cape Fear Museum and repairs to the Material Recovery Facility(MRF)roof at the Landfill. Section 3: Documentation of Adoption This ordinance shall be effective upon its adoption. NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of New Hanover County,North Carolina, that the Ordinance for Budget Amendment(s)21-007 amending the annual budget ordinance for the fiscal year ending June 30,2021,is adopted. Adopt:. .,c : • ..y of September,2020.No u i son-Boseman,Chair Ii ATTES < ' fi ,�. Kym.4.gh G.Crowell,Cler the Board •ESTA,LiSHEV Exhibit Book% Page I7. RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE COUNTY OF NEW HANOVER,NORTH CAROLINA MAKING CERTAIN STATEMENTS OF FACT CONCERNING PROPOSED LEASE AGREEMENT WHEREAS, on June 15, 2020, the Board of Commissioners (the "Board of Commissioners") of the County of New Hanover, North Carolina (the "County") approved a public private partnership development agreement with Cape Fear FD Stonewater, LLC (the "Developer") for the purpose of constructing a new government center facility inclusive of a new Emergency Operations and 911 Center (the"Facility")while bringing in new mixed use and commercial development to the property; and WHEREAS, as a part of the development agreement with the Developer, the County Manager and staff were directed to execute a lease for the Facility with the terms and conditions included in the development agreement and contingent upon approval of the lease agreement (the "Lease")by the Local Government Commission of the State of North Carolina; and WHEREAS, the lease terms in the development agreement with the Developer include a twenty (20) year triple net lease with a rental rate not greater than $4,507,054 commencing upon substantial completion of the Facility with contingent credit to the County based on actual savings in the cost to complete the new government center facility; and WHEREAS, certain findings of fact by the Board of Commissioners must be presented to enable the Local Government Commission of the State of North Carolina to make certain determinations as set forth in Section 159-52 the North Carolina General Statutes, as amended. NOW, THEREFORE, BE IT RESOLVED that the Board of Commissioners, meeting in open session on the 8th day of September, 2020, has made the following factual findings in regard to this matter: A. Facts Regarding Necessity of Proposed Financing. The proposed fmancing is necessary and expedient to pay the costs of constructing the Facility while bringing new mixed use and commercial development to the property. B. Facts Supporting the Amount of Financing Proposed The sum estimated for these financing is adequate and not excessive for the proposed purposes. Estimates for the proposed projects to be financed have been analyzed and determined by persons knowledgeable about the proposed projects and are subject to a guaranteed maximum price. C. Past Debt Management Procedures and Policies. The County's debt management procedures and policies are excellent and have been carried out in compliance with law. The County employs a Finance Director to oversee compliance with applicable laws relating to debt management. The Board of Commissioners requires annual audits of County finances. In connection with these audits, compliance with laws is reviewed. The County is not in default in any of its debt service obligations. The County Attorney reviews all debt-related documents for compliance with laws. D. Past Budgetary and Fiscal Management Policies. The County's budgetary and fiscal management policies have been carried out in compliance with laws. Annual budgets are closely reviewed by the Board of Commissioners before final approval of budget ordinances. Budget amendments changing a function total or between functions are presented to the Board of Commissioners at regular Board of Commissioners meetings. The Finance Director presents financial information to the Board of Commissioners which shows budget to actual comparisons annually and otherwise as the County Manager deems necessary or as a member of the Board of Commissioners may request. E. Increase in Taxes. The increase in taxes, if any, necessary to service the financing will not be excessive. F. Financing Method Preferable to Bond Offering: Although the cost of financing the Facility pursuant to the Lease is expected to exceed the cost of financing the same pursuant to a bond financing for the same undertaking, the County hereby determines that the cost of financing the Facility pursuant to the Lease is preferable to a general obligation bond financing or revenue bond financing for several reasons, including but not limited to the following: (1) the cost of a special election necessary to approve a general obligation bond financing, as required by the laws of the State, would result in the expenditure of significant funds; (2) the time required for a . general obligation bond election would cause an unnecessary delay which would thereby decrease the financial benefits of the Facility; (3) insufficient revenues are produced by the Facility so as to permit a revenue bond financing; and (4) the County has negotiated with the Developer to provide mixed use and commercial development in connection with construction of the Facility; G. No Default. The County is not in default under any of its debt service obligations; H Effective Date. This Resolution is effective immediately on its adoption. ADOPTED this 8th day of September, 2020. 0 C )\ Ty ce .] i., 7 ATTEST: =. a f- �.�� C ' "of the Boar o ommissioners •ESTA R C1SH'0 eayidi joi O,uswe gi Cleiu to the Board it. APPROVED AS TO FORM: County Attorney Exhibit ' Book YOL Page 17 1/6k , AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE UNIFIED DEVELOPMENT ORDINANCE OF NEW HANOVER COUNTY, NORTH CAROLINA ADOPTED FEBRUARY 3, 2020 CASE TA20-01 WHEREAS, pursuant to N.C.G.S. § 160D,the County of New Hanover("County")may adopt zoning and development regulation ordinances and combine any ordinances authorized into a unified ordinance for the purpose of promoting health, safety, morals or the general welfare; WHEREAS,the County desires to amend the provisions in the Unified Development Ordinance to clarify existing policies and modernize outdate code provisions; WHEREAS, the amendment will simplify the method of measuring the height of structures; increase height maximums for buildings in the RMF-MH, RMF-H, O&I, and I-1 districts; revise the Planned Development district; clarify lighting standards; establish new design standards for self-storage facilities in high-visibility areas; update telecommunication facility standards; correct minor errors made when reorganizing code documents; and clarify existing permissions; WHEREAS, the County finds that this amendment is consistent with the purpose and intent of the 2016 Comprehensive Plan because it provides up-to-date zoning tools that reflect the plan's recommended place types and development patterns; and WHEREAS, the County find that approval of the amendment is reasonable and in the public interest because it clarifies current practices in the county's development regulations for stakeholders and code users and allows for development appropriate in suburban communities common in New Hanover County; THE BOARD OF COMMISSIONERS OF NEW HANOVER COUNTY DOTH ORDAIN: Section 1.The Unified Development Ordinance of the County of New Hanover adopted February 3, 2020 is hereby amended per the attached document. Section 2. Any Ordinance or any part of any ordinance in conflict with this ordinance, to the extent of such conflict, is hereby repealed. Section 3. This ordinance is adopted in the interest of the public health, safety, morals and general welfare of the inhabitants of the County of New Hanover, North Carolina and subject to the conditions also approved as part this action, shall be in full force and effect from and after its adoption. Section 4. The County Commissioners find, in accordance with the provisions of N.C.G.S § 160D- 605, that adoption of this amendment is consistent with the purpose and intent of the 2016 Comprehensive Plan because it provides up-to-date zoning tools that reflect the plan's recommended place types and development patterns and that adoption of the amendment is Page 1 of 2 reasonable and in the public interest because clarifies current practices in the county's development regulation for stakeholders and code users and allows for development appropriate in suburban communities common in New Hanover County. ADOPTED this the 8th day of September, 2020 NEW HANOVER COUN ot}NTY.� o Julia Olson-Boseman, Chair �� Z - fij •Fsr'�FLISHED ATTEST:E� K Crowell, Clerk to the Board Page 2 of 2 2020-09 Board of Commissioners Hearing Draft-Lighting Clarification Amendment Section 5.5 Exterior Lighting 5.5.1 PUPOSE AND INTENT The purpose and intent of this section is to regulate exterior lighting to: A. Ensure all exterior lighting is designed and installed to maintain adequate lighting levels on site; B. Assure that excessive light spillage and glare are not directed at adjacent property, neighboring areas, or motorists; C. Provide certainty during the development review process; and D. Provide security for persons and property. 5.5.2 APPLICABILITY A. General Unless exempted by subsection B below, the standards in this section apply to: 1. All new non-residential, mixed-use, and multi-family development; 2. Any individual expansion of a building in a non-residential, mixed-use, or multi- family development if the expansions increases the building's floor area by 50 percent or more; and 3. Any expansion or alteration of a lighted outdoor area. B. Exemptions The following types of lighting are exempted from the standards of this section: 1. Lighting exempt under state or federal law; 2. FAA-mandated lighting associated with a utility tower or airport; 3. Lighting for public monument and statuary; 4. Lighting solely for signage (for signage lighting standards see Sec. 5.6.2.D, Lighting); 5. Temporary lighting for circuses, fairs, carnivals, and theatrical and other performance areas, provided such lighting is discontinued upon completion of the event or performance; 6. Temporary lighting of construction sites, provided such lighting is discontinued upon completion of the construction activity; 7. Temporary lighting for emergency situations, provided such lighting is discontinued upon abatement of the emergency situation; 8. Security lighting controlled and activated by motion sensor devices for a duration of 15 minutes or less; 1 2020-09 Board of Commissioners Hearing Draft-Lighting Clarification Amendment 9. Underwater lighting in swimming pools, fountains, and other water features; 10. Holiday or festive lighting; and 11. Outdoor lighting fixtures that do not comply with provisions of this section on [insert effective date of this amendment]. 5.5.3 TIME OF REVIEW Information about the exterior lighting for the site that demonstrates compliance with the standards in this section shall be submitted in conjunction with an application for site plan approval(Section 10.3.6, Site Plan) or zoning compliance approval(Section 10.3.8, Zoning Compliance Approval), whichever comes first. 5.5.4 GENERAL STANDARDS A. Maximum Illumination Level RR1) Except for street lighting, all exterior lighting and indoor lighting visible from outside shall be designed and located so that the maximum illumination measured in foot candles at ground level at a long line (see Figure 5.5.4.B:Maximum Illumination Levels) shall not exceed the standards in Table 5.5.4.8:Maximum Illumination Levels. Illumination Level Type of Use Abutting Lot Line at Lot Line(Foot- Candles) Single family detached,two-family(duplex), triplex,and quadraplex dwellings,or vacant land in the R-20S,R-20,R-15,and R-10 zoning 0.5 districts All other residential uses and vacant land in all other Residential districts All other uses 2 2020-09 Board of Commissioners Hearing Draft-Lighting Clarification Amendment Figure 5.5.4.B: Maximum Illumination L SINGLE-FAMILY s. DWELLING Maxenutn illumination at the lot One of 0.5 toolcandles Ma+tmum Illumination at the -/ Ora:aa4 Iodine of 0-S footcandles I , COMMERCIAL USE ~ : V • t TOWNHOUSE DWELLING Maximum Illumination at the lot line of 1.0 footcandlos SINGLE-FAMILY DWELLING 5.5.5 PROHIBITED LIGHTING The following lighting is prohibited: A. Light fixtures that imitate an official highway or traffic control light or sign; B. Light fixtures that have a flashing or intermittent pattern of illumination, except as permitted for signage in accordance with Section 5.6.2.D, Lighting; C. Exterior lighting in the Airport Residential(AR) district that does not comply with Section 3.2.5.E.1, Lighting; D. Exterior lighting in the Airport Commerce (AC) district that does not comply with Section 3.4.9.E.2, Lighting; and E. Searchlights, except when used by federal, state, or local authorities, or where they are used to illuminate alleys, parking garages, and working (maintenance) areas, so long as they are shielded and aimed so that they do not result in lighting on any adjacent lot or public right-of-way exceeding 2.0 foot candles. 5.5.6 EXEMPTIONS FOR SAFETY REASONS A. Government facilities like parks, public safety facilities, and the like, as well as private development may submit a security plan to the Planning Director proposing exterior lighting that deviates from the standards in this section. The Planning Director shall submit the security plan to the Sheriff's Department for review and shall then approve or approve with conditions the security plan and its proposed deviation from the standards, upon finding that: 1. The proposed deviation from the standards is necessary for the adequate protection of the subject land, development, or the public. 2. The condition, location, or use of the land, or the history of activity in the area, indicates the property or any materials stored or used on it are in significantly 3 2020-09 Board of Commissioners Hearing Draft-Lighting Clarification Amendment greater danger of theft or damage, or members of the public are at greater risk for harm than on surrounding property without the additional lighting; and 3. The proposed deviation from the standards is the minimum required, and will not have a significant adverse effect on neighboring lands. B. If the Planning Director finds the applicant fails to demonstrate compliance with subsection A above, the security plan and its proposed deviation from the standards shall be denied. • 4 spepu s @ a, @ @ @ @ - an ] 4 ] 4 ] = z-1 e \ L-1 \ Db IDS / ) %¥ . O_ 0. Q Q CL CL my z > > > > > > ` " k \/ V/ VI VI > > V) � k . . y f E g g ii/1 a a O. a. a / . \ / § « / \ \( a a a a 7 / H-]wN a CL 0- CL CL / HwewII a CL CL a 0. CL \ � � N - In ® -]w� a a o. o o. a '/ LIN .J . JVI f 0- a O. 0_ 0- 0. ' 7 §- 0. 0. 0. 0 . / C '= c • 7 �11 0_ 0_ a 0. a_ a_ @ cc 2 \ . .1a a s & a E ) , Sw� a a a a \ ƒ 0- a a a 0- a. a S eb / } \ �V , I y § }; a § d 2 E , o §k \ / 7 _ s- ƒ \ ° \ LL E . n u ' c , . 2 0.3 LA o . j To a CO ^ - = a § k § 4 I o &t o 6 $ 6 6 6 e 6 2 ` I c c c c _ c � o 7 0) \ \ \ \ = 0 0 0 0 0 0 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Attached Dwelling Types 4.3.2 RESIDENTIAL USES A. Household Living 1. Dwelling,Dual-Unit Attached a. In the R-20, R-15, R-10, and R-7 zoning districts, dual-unit attached dwellings are only allowed as part of a performance residential development and are subject to the maximum density for the district. b. Dual-unit attached dwellings in the B-1 and B-2 districts shall comply with the standards for multi-family dwellings in those districts. 2. Dwelling, Multi-Family a. In the R-20, R-15, R-10, and R-7 zoning districts, multi family dwellings are only allowed as part of a performance residential development and are subject to the maximum density for the district. b. Multi-family dwellings in the B-1 and B-2 districts shall comply with the following standards: 1. Dwelling units must be part of mixed use development established to provide innovative opportunities for an integration of diverse but compatible uses into a single development that is unified by distinguishable design features with amenities and walkways to increase pedestrian activity. 2. The development shall be single ownership or unified control of a property owners association. 3. Uses with the development are restricted to residential uses and uses allowed in the B-1 district. 4. Sidewalks must be provided throughout the project. 5. Parking location and quantity shall be shared. 6. Community facilities and/or common area shall be provided. 7. Mixed-Use Residential buildings are permitted and encouraged. 8. Conceptual elevations indicating proposed architectural style and conceptual lighting plans shall be submitted with the application. 3. Dwelling,Quadraplex a.In the R-20, R-15, R-10,and R-7 zoning districts, quadraplex dwellings are only allowed as part of a performance residential development and are subject to the maximum density for the district. b. Quadraplex dwellings in the B-1 and B-2 districts shall comply with the standards for multi-family dwellings in those districts. 4. Dwelling,Single-Family Detached Single-family dwellings in the B-1 and B-2 districts shall comply with the standards for multi-family dwellings in those districts. 2 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Attached Dwelling Types 5. Dwelling,Triplex a. In the R-20, R-15, R-10, and R-7 zoning districts, triplex dwellings are only allowed as part of a performance residential development and are subject to the maximum density for the district. b. Triplex dwellings in the B-1 and B-2 districts shall comply with the standards for multi-family dwellings in those districts. 6. Dwelling,Row-Style a. In the R-20, R-15, R-10, and R-7 zoning districts, row-style dwellings are only allowed as part of a performance residential development and are subject to the maximum density for the district. b. Row-style dwellings in the B-1 and B-2 districts shall comply with the standards for multi-family dwellings in those districts. 3 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-RV or Travel Trailer Dwellings 2.3 DEFINITIONS AND TERMS RV OR TRAVEL TRAILER DWELLING A dwelling unit that meets the definition of a Recreational Vehicle (RV) or Travel Trailer, as defined herein, but that does not include Temporary Relocation Housing as defined by this ordinance. 4.4.3 PERMISSIONS FOR SPECIFIED ACCESSORY USES AND STRUCTURES Table 4.4.3: Accessory Use Table Key: P = Permitted by Right S = Special Use Permit Required blank cell = not allowed a` ' i. Zoning Districts.. Accessory Uses •.44 :r ; 14.0,zraiir,,:,..4, t: tt.s. 1.; .,.., _ ii < ri lij 'a --11 ' e'" — ENI RV or Travel Trailer Dwelling EI■EI P 113111131113.■■■■■■III■111■■■■■■ 4.4.4 STANDARDS FOR SPECIFIED ACCESSORY USES AND STRUCTURES H. RV or Travel Trailer Dwelling Use of recreational vehicles or travel trailers as dwelling units is only allowed in approved Campground/ Recreational Vehicle(RV)Park uses. This shall not be construed to exclude the use of recreational vehicles or travel trailers as permitted Temporary Relocation Housing or to prohibit the parking of recreational vehicles in locations where parking of personal automobiles is allowed,such as approved parking spaces or residential driveways. This also does not exclude sales display of recreational vehicles or travel trailers allowed as accessory to a permitted commercial use. 1 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Correction of Transfer Errors 5.4.4 TRANSITIONAL BUFFERS D. Transitional buffers shall provide approximately 100 percent opacity and may be occupied only by natural and/or planted vegetation, berms, and fencing as specified in Table 5.4.4.8 : Transitional Buffer Types and Specifications. Where a utility easement occupies a portion of the buffer, sufficient plantings must be provided outside the easement to meet the required opacity standard. Table 5.4.4.8 : Transitional Buffer Types and Specifications Type Specifications Planted Buffer • Planted materials shall be a minimum of six feet in height and Strip provide approximately 100 percent opacity within one year of planting. • Three rows of planted material are required. Combination • Fencing shall be between six and ten feet in height Planted Buffer • Planted materials shall be located between the fence and the Strip and Fencing common property line. • If solid fencing is used, two rows of planted materials a minimum of three feet in height and providing approximately 50 percent visual opacity at initial planting shall be required. • If permeable fencing is used, two rows of planted materials giving approximately 100 percent of visual opacity within one year of planting shall be required. Combination • The combined height of the berm and planted vegetation shall Berm and be a minimum of six feet and provide approximately 100 percent Vegetation opacity within one year of planting. • The slope of the berm shall be stabilized with vegetation. The slope shall be no steeper than 3:1. • The height of the berm shall be six inches or less with a level or rounded area on top. • The berm shall be constructed of compacted earth. 1 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Correction of Transfer Errors 5.4.6 PARKING LOTS D. Landscaping for parking lot interiors shall be in accordance with the specifications outlined in Table 5.4.6.D: Design Criteria for Parking Lot Interiors. 5.4.6.D: Design Criteria for Parking Lot Interiors Dimensional • Interior landscaped areas shall be equal to eight percent of the Standards total area to be used for parking, loading, automobile sales, driveways,internal drive aisles,and other vehicular or pedestrian use. • Landscaping islands, either separate from or protruding from perimeter landscaping strips, shall be a minimum of 12 feet measured from back of curb to back of curb. Plantings • One planted or existing tree shall be required for every 144 Required square feet of total interior landscaped area,with a minimum of one tree in each island. • At least 75 percent of trees required for interior landscaping shall be of a shade/canopy species a minimum of three inches caliper in size. • The remainder of interior landscaped area shall be covered with appropriate groundcover, except for designated pedestrian walkways making up no more than 15 percent of any island. Design • No parking space shall be located more than 120 feet from a Standards landscaped island. • All parking spaces shall be blocked or curbed to prevent vehicles from encroaching more than one foot into planting islands or landscaped yards or damaging adjacent fences or screens. • Depressions and curb cuts shall be allowed for water quality protection. Design • The interior landscaping requirement for storage facilities can be Alternatives met with landscaped islands on the ends of buildings and with protruding perimeter landscaping. • Interior landscaping within automobile sales lots may be distributed so that smaller understory trees are utilized toward the interior of the lot and shade trees are placed toward the perimeter. • For redevelopment of nonconforming parking facilities containing a total of 5-25 parking stalls, a perimeter landscaped strip a minimum width of ten feet may be provided in-lieu of interior landscaping. For every 40 linear feet,or fraction thereof, the perimeter strip shall contain a minimum of one canopy tree at least three-inch caliper in size or three understory trees at least six feet in height AND a continuous row of evergreen shrubs a minimum 18 inches in height. 2 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Correction of Transfer Errors 5.4.7 STREET YARDS B. Street yard area shall be required in accordance with the specifications outlined in Table 5.4.7.B,Street Yard Area Standards. The applicant may install the street yard in any configuration that provides the required amount of street yard square footage between the property line and any site improvements,and conforms with required street yard minimum and maximum widths. Table 5.4.7.B: Street Yard Area Standards Zoning District or Use Required Area B-2,CS, I-1,1-2,AC • 25 square feet for every linear foot of street yard frontage • Minimum street yard width:12.5 feet • Maximum street yard width: 37.5 feet B-1,CB,O&I,EDZD, UMXZ Districts • 18 square feet for every linear foot of Developments with Additional Dwelling street yard frontage • Allowance or High Density Development Minimum street yard width:9 feet Special Use Permit • Maximum street yard width:27 feet Non-Residential Uses in Residential Districts • 12 square feet for every linear foot of street yard frontage • Minimum street yard width:8 feet • Maximum street yard width:18 feet - The road fronting width of driveways are not included in the linear street frontage when determining the base street yard area. - The area of any walkways, sidewalks or other bicycle and pedestrian facilities, and transit amenities shall be subtracted from the base street yard area required above to get the total required street yard area. - Areas designated for stormwater functions,except piped areas,shall not be included in the required street yard area. - The applicant may choose to increase the required square footage per linear foot up to 25 percent to receive an equivalent reduction in the building's front yard setback. - The applicant may install the street yard in any configuration that provides the required amount of street yard square footage between the property line and any site improvements as long as it remains in compliance with the minimum and maximum widths outlined above. 3 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Correction of Transfer Errors 5.6.2 GENERAL PROVISIONS J. Signs Which Require a Permit 4. Principal Use Signs a. Freestanding Signs 1. Primary. One primary freestanding sign per premises, in accordance with Table 5.6.2.J.4.a, Freestanding Sign Standards. Table 5.6.2.J.4.a: Freestanding Sign Standards Zoning Number Street Front Setback Maximum Maximum Maximum Maximum District of Lanes Frontage (Min./Max.) Primary Aux. Sign Primary Auxiliary (Feet) [1] (Feet) [2][3] Sign Height Sign Area Sign Area Height (Feet) (Square (Square (Feet) Feet) Feet) B-1, PD, 2 N/A 10/20 20 10 50 25 4 < 100 10/20 20 N/A 50 N/A > 100 10/20 20 12 65 32 B-2, , 2 < 100 10/20 20 N/A 65 N/A 1-1, > 100 10/25 20 18 100 50 1-2,AC, 4 < 100 10/25 20 N/A 100 N/A SC > 100 10/30 25 20 150 75 > 300 10/30 30 20 175 90 NOTES: [1] Number of lanes refers to the ultimate number of lanes based upon existing roadway conditions or upon construction plans approved as part of the current NC DOT Transportation Improvement Program. [2] Notwithstanding the minimum and maximum front setback requirements indicated above,primary freestanding signs which do not exceed six feet in height and are less than 76 percent of the maximum sign area established above, may be located within five feet of the front property line and shall have no maximum front setback. [3] Front Setback refers to the setback from the front or corner side property fines. 4 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Correction of Transfer Errors 10.3.5 SPECIAL USE PERMIT C. Special Use Permit Procedure Figure 10.3.5.0 summarizes the requirements and procedures in Section 10.2,Standard Review Procedures that apply to special use permits. Subsections 1 through 7 below, specify the required procedure for a special use permit, including applicable additions or modifications to the standard review procedures. Figure 10.3.5.C: Summary of Special Use Permit Procedure IPublic Hearing Procedures J (Optional) 1 * 2 3 4 5 6 7 Pre-Application Community Application Planning Public Hearing Planning Board Board of Post-Decision Conference Information Submittal& Director Review Scheduling& Hearing& Commissioners Limitations Meeting Acceptance &Staff Report Notification Recommendation Hearing& and Actions (TRC Optional) Decision *Special use permits for single-family dwellings, including mobile homes, shall not require Planning Board review prior to the Board of Commissioners Hearing& Decision. 5 2020-08 Board of Commissioners Hearing Draft-Housekeeping Amendment-Telecommunications Legal Update 2.3 DEFINITIONS AND TERMS AMATEUR RADIO ANTENNA Amateur radio antennas as prescribed in North Carolina General Statutes§160D-905 ANTENNA Communications equipment that transmits, receives, or transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services. BASE STATION For the purposes of the Communications and Information Facilities standards of Subsection 4.3.3, "base station" shall mean a station at a specific site authorized to communicate with mobile stations, generally consisting of radio receivers, antennas, coaxial cables, power supplies, and other associated electronics. COLLOCATION The placement, installation, maintenance, modification, operation, or replacement of wireless facilities on, under, within, or on the surface of the earth adjacent to existing structures, including utility poles, city utility poles, water towers, buildings, and other structures capable of structurally supporting the attachment of wireless facilities in compliance with applicable codes. The term does not include the installation of new utility poles, city utility poles,or wireless support structures. ELIGIBLE FACILITIES REQUEST A request for modification of an existing wireless tower or base station that involves collocation of new transmission equipment or replacement of transmission equipment but does not include a substantial modification. EQUIPMENT COMPOUND An area surrounding or near the base of a wireless support structure within which a wireless facility is located. NON-SUBSTANTIAL MODIFICATION See "Eligible Facilities Request". SUBSTANTIAL MODIFICATION The mounting of a proposed wireless facility on a wireless support structure that substantially changes the physical dimensions of the support structure. A mounting is presumed to be a substantial modification if it meets any one or more of the criteria: A. Increasing the existing vertical height of the structure by the greater of(i) more than ten percent (10%) or (ii) the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet. B. Except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable, adding an appurtenance to the body of a wireless support structure that protrudes horizontally from the edge of the wireless support structure the greater of(i) more than 20 feet or(ii) more than the width of the wireless support structure at the level of the appurtenance. C. Increasing the square footage of the existing equipment compound by more than 2,500 square feet. 1 2020-08 Board of Commissioners Hearing Draft-Housekeeping Amendment-Telecommunications Legal Update TOWER(AS APPLIES TO TELECOMMUNICATIONS) For the purposes of the Communications and Information Facilities standards of Subsection 4.3.3, "tower"shall be used interchangeably with "wireless support structure". See "Wireless Support Structure". WIRELESS FACILITY Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including(i) equipment associated with wireless communications and (ii) radio transceivers, antennas, wires, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regard less of technological configuration. The term includes small wireless facilities. The term does not include any of the following:a. The structure or improvements on, under, within, or adjacent to which the equipment is collocated. b. Wireline backhaul facilities. c. Coaxial or fiber-optic cable that is between wireless structures or utility poles or city utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna. WIRELESS SUPPORT STRUCTURE A new or existing structure, such as a monopole, lattice tower, or guyed tower that is designed to support or capable of supporting wireless facilities.A utility pole is not a wireless support structure. 2 spaepueiS M M M V M M M M n•1 M asn M M M n1 M y a v d' a v O V Z-I a a a ., L. 11 Jd a a a a ut v c $J a a a a vs a JS a a a r IV 4 a a a - v r; {.: a CO- a a a in a >, y 8 J a a a v, —o a 1„ MD °' Q l-8 a a a in J V, N ilk g a a a a v+ _N L +° 'c CI a a a a v, ea N H a I N n H4dIN21 a a a a u c `,-.;C k k k M k v c� Z3 o F€¢wr a a a n �n Ty N . • F tI.' a a a a II)* II .i 101tu:44 M N c 0- * �v Mft a a a * y !4t cu o a a a o v+ •Q N n Q N 0 k k k # k ca. v O :5' -i- 1. a a a n in 2 ', a a a 4 a w co o x y ba * - '` a a a ti C_ •. L }�l k k k * k co . ,.� , ,,, a a a a V1 a) Vl a • = 4 y a t• •V a a a VI* ftl C 61 LA- O FC C 2 $ _^ s as 0 r0 C O r C � N �0 L N t r •u _ O Q1 41 CC >� M 12 a u R c L R O C .�, ; V _ -al C v1 �i ro II = I1idIH )IJII U° 2 O �i of f 2020-08 Board of Commissioners Hearing Draft-Housekeeping Amendment-Telecommunications Legal Update Subsection 4.3.3 Civic& Institutional Uses C.Communication and Information Facilities 1. General Requirements for All Communication and Information Facilities. The following standards shall apply to all communications and information facilities: a. Setbacks. Except for amateur radio antenna up to 90 feet, any tower, antenna, or related wireless support structure in any zoning district shall be set back from any existing residential property line or residential zoning district boundary a distance equal to the height of the tower as measured from the base of the tower. In no case shall the setback for any tower, antenna, or related structure be less than 50 feet. b.Certification Required.All applicants seeking approval shall also submit a written affidavit from a qualified person or persons, including evidence of their qualifications, certifying that the construction or placement of such structures meets the provisions of the Federal Communications Act, 47 U.S.C. § 332, as amended, section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. § 1455(a), in accordance with the rules promulgated by the Federal Communications Commission (FCC), and all other applicable federal, state, and local laws.The statement must certify that radio frequency emissions from the antenna array(s) comply with the FCC standards. The statement shall also certify that both individually and cumulatively the proposed facilities located on or adjacent to the proposed facility will comply with current FCC standards. In accordance with NCGS 160D-932,the county cannot base its permitting decision on public safety implications of radio frequency emissions of wireless facilities. c. Expert Review. Outside experts and disputes are subject to the following provisions: 1. Siting of telecommunications facilities may involve complex technical issues that require review and input by outside experts.Staff may require the applicant to pay the reasonable costs of a third-party technical study of a proposed facility. Selection of expert(s)to review the proposal shall be at the sole discretion of the decision-making body. 2. If an applicant for a telecommunications facility claims that one or more standards of this ordinance are inconsistent with federal law as applied to a particular property, or would prohibit the effective provision of wireless communications within the relevant market area,the decision- making body may require that the applications be reviewed by a qualified engineer for a determination of the accuracy of such claims. Any costs shall be charged to the applicant. d.Signage.Signage shall comply with the following standards: 4 2020-08 Board of Commissioners Hearing Draft-Housekeeping Amendment-Telecommunications Legal Update 1. Attaching commercial messages for off-site or on-site advertising shall be prohibited. 2. The only signage that is permitted upon an antenna, wireless support structure,equipment cabinet,or fence shall be informational and for the purpose of identifying: i.The antenna support structure(such as ASR registration number); ii. The party responsible for the operation and maintenance of the facility; iii. Its current address and telephone number; iv. Security or safety signs; v. Property manager signs for the tower(if applicable);and vi. Signage appropriate to warn the general public as to the use of the facility for radiofrequency transmissions. 2.Amateur Radio Antenna Except for in the I-1 and 1-2 districts,Amateur Radio Antenna 90 feet in height or taller, in addition to the standards set forth in Subsection 4.3.3.C.1 above, shall require a Special Use Permit and are subject to the standards of 4.3.3.C.6 below. 3.Antenna& Towers Ancillary to the Principal Use Except for in the 1-1 and 1-2 districts, Antenna & Towers 70 feet in height or taller, in addition to the standards set forth in Subsection 4.3.3.C.1 above, shall require a Special Use Permit and are subject to the standards of 4.3.3.C.6 below. 4. Collocations a. Wireless collocations attached to existing structures that are not considered non- substantial modifications shall not add more than six feet to the overall height of a structure. b. The applicant is encouraged to provide simulated photographic evidence of the proposed appearance of the collocation and a statement as to the potential visual and aesthetic impacts on all adjacent residential zoning districts. The simulation should include overall height; configuration; physical location; mass and scale; materials and color(including proposals for steel structures);and illumination. c.Concealed(stealth)or camouflaged facilities are encouraged when the method of concealment is appropriate to the proposed location.Stealth facilities may include but are not limited to: painted antenna and feed lines to match the color of a building or structure,faux windows,dormers,or other architectural features that blend with an existing or proposed building or structure. Freestanding stealth 5 2020-08 Board of Commissioners Hearing Draft-Housekeeping Amendment-Telecommunications Legal Update facilities typically have a secondary, obvious function such as a church steeple, windmill,silo, light standard,flagpole, bell/clock tower, water tower, or tree. 5. Non-Substantial Modifications a. The applicant is encouraged to provide simulated photographic evidence of the proposed appearance of non-substantial modification and a statement as to the potential visual and aesthetic impacts on all adjacent residential zoning districts. The simulation should include overall height; configuration; physical location; mass and scale;materials and color(including proposals for steel structures);and illumination. b. Concealed(stealth)or camouflaged facilities are encouraged when the method of concealment is appropriate to the proposed location. Stealth facilities may include but are not limited to:painted antenna and feed lines to match the color of a building or structure,faux windows, dormers, or other architectural features that blend with an existing or proposed building or structure.Freestanding stealth facilities typically have a secondary, obvious function such as a church steeple, windmill,silo, light standard,flagpole, bell/clock tower, water tower, or tree. 6. Other Wireless Communication Facilities including New Wireless Support Structures & Substantial Modifications a. Where Special Use Permits are required, all of the following standards shall be applied, and all requirements must be met. Additional conditions may be determined to mitigate negative impacts, and the permit should be approved only if all negative impacts can be mitigated. No reductions in setbacks may be granted for this use for increased buffers. 1. The minimum distance between the wireless support structure and any other adjoining parcel of land or road must be equal to the minimum setback described in Subsection 4.3.3.C.1.a above, plus any additional distance necessary to ensure that the wireless support structure, as designed,will fall within the wireless support structure site. 2. The applicant shall provide simulated photographic evidence of the proposed appearance of the wireless support structure and wireless facilities from four vantage points and a statement as to the potential visual and aesthetic impacts on all adjacent residential zoning districts. The simulation shall include overall height; configuration; physical location; mass and scale; materials and color (including proposals for steal structures);and illumination. 3. Concealed (stealth) or camouflaged facilities are encouraged when the method of concealment is appropriate to the proposed location. Attached stealth facilities may include but are not limited to: painted antenna and feed lines to match the color of a building or structure,faux windows, dormers, or other architectural features that blend with an 6 2020-08 Board of Commissioners Hearing Draft-Housekeeping Amendment-Telecommunications Legal Update existing or proposed building or structure. Freestanding stealth facilities typically have a secondary, obvious function such as a church steeple, windmill, silo, light standard,flagpole, bell/clock tower, water tower, or tree. 4. The proposed appearance of concealed or non-concealed facilities shall be evaluated for compatibility with the surrounding community prior to submission of the special use permit application. Applicants shall meet with Planning and Land Use staff for a preliminary review of proposed appearance in order to assure each facility will impose the least obtrusive visual impact. b. A landscaped buffer with a base width not less than 25 feet and providing 100 percent opacity shall be required within the wireless support structure site to screen the exterior of protective fencing or walls.The base station and equipment compound of the wireless support structure and each guy wire anchor must be surrounded by a fence or wall not less than eight feet in height. c.All wireless support structures shall be constructed to accommodate collocation. Structures over 150 feet in height shall be engineered to accommodate at a minimum two additional providers. Structures 150 feet or less in height shall be engineered to accommodate at a minimum one additional provider. d. Equipment compounds shall comply with the following standards: 1. Shall not be used for the storage of any equipment or hazardous waste (e.g., discarded batteries)or materials not needed for the operation. No outdoor storage yards shall be allowed in a tower equipment compound. 2.Shall not be used as a habitable space. e. The applicant shall submit Form 7460 to the Federal Aviation Administration (FAA) to assure compliance with all FAA standards and to resolve issues of concern, including required lighting, possible transmission interference or other conflicts when the proposed wireless support structure site is located within 10,000 feet of an airport or within any runway approach zone. 7. Nonconforming Wireless Support Structures. a. Any wireless support structure and associated equipment which was lawfully constructed under the terms of the Ordinance, which is now considered a nonconforming improvement,may continue or be reconstructed as a conforming improvement even though the wireless support structure and associated equipment may not conform with the provisions of this ordinance for the district in which it is located.Wireless support structures and associated equipment may only be enlarged and/or relocated if the enlarged or relocated wireless support structure: is considered an eligible facilities request, eliminates the need for an additional wireless support structure, provides additional collocation 7 2020-08 Board of Commissioners Hearing Draft-Housekeeping Amendment-Telecommunications Legal Update opportunities on the wireless support structure, or provides additional antenna space on the wireless support structure; and provided further that the enlargement and/or relocation shall be in conformance with the following regulations and design limitations: 1. Wireless support structure height may not be increased by more than 10 percent of the originally constructed structure height,except where either of the following is applicable: a. The district in which the wireless support structure is located would allow the increase by right, or; b. The wireless support structure was originally permitted as a special use permit and the applicant obtains a special use permit modification, as described in UDO Section 10.3.5 Special Use Permit. 2. A wireless support structure shall be allowed to be reconstructed and relocated within the boundaries of the property on which it is located so long as the decrease in the setbacks does not exceed 10 percent of the originally constructed structure height and the relocated structure is sited to minimize any increase in the existing nonconformity.Any request to reconstruct and relocate the structure where the resulting decrease in setback exceeds 10 percent of the originally constructed structure height shall require a special use permit or special use permit modification, as described in UDO Section 10.3.5 Special Use Permit. 8 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Boat Definition &Small Watercraft Storage 2.3 DEFINITIONS AND TERMS BOAT A vessel or watercraft of any type or size specifically designed to be self-propelled, whether by watef. engine or sail, including yachts, pontoon boats, sail boats, personal watercraft such as Jet-Skis®, and motorized inflatable boats such as Zodiacs®. For the purposes of this Ordinance, this definition does not include small watercraft, as herein defined. WATERCRAFT, SMALL A vessel or watercraft, generally smaller than boats as herein defined, that floats on or operates on the water, regardless of the means of propulsion, which is usually stored at a residence rather than a marina, is not permanently stored in the water, and is not generally launched from a trailer. Examples are canoes, kayaks, rowboats, paddleboards, rowing sculls, and sailboats shorter than 14 ft. in lengths, such as Sunfish®. Excluded from this definition are rafts, surfboards, boogie boards, towable tubes, and the like, which are not regulated by this ordinance. 4.4.3 PERMISSIONS FOR SPECIFIED ACCESSORY USES AND STRUCTURES Table 4.4.3: Accessory Use Table Key: P = Permitted by Right S = Special Use Permit Required blank cell = not allowed - Zoning Districts 4 *4� '' _ es V 4$ Li- t x m N Small Watercraft Storage ElEIEIEIE1Q11Q11EIE1®11111111111©E1 P El P to 4.4.4 STANDARDS FOR SPECIFIED ACCESSORY USES AND STRUCTURES I. Small Watercraft Storage Structures, such as kayak racks,for the storage of small watercraft are allowed in all zoning districts as accessory uses, excepting that they shall only be allowed as accessory to Community Boating Facilities and Outdoor Recreational Establishments,provided that 1. Structures shall be reviewed for compliance with building code and applicable floodplain regulations. 2. When personal watercraft are not stored in an enclosed structure, all watercraft shall be required to be tied-down or removed during hurricane emergency events. 3. No structure, including stored watercraft,shall encroach into any required setbacks or easements. 4. For all Outdoor Recreational Establishments,and for Community Boating Facilities not directly abutting the residential lots or units served by the facility, one automobile parking space, in addition to existing approved spaces, shall be required for every 4 storage rack slots 1 2020-09 Board of Commissioners Hearing Draft-Housekeeping Amendment-Boat Definition &Small Watercraft Storage or fraction thereof. Bicycle parking spaces may be provided in lieu of up to two automobile parking spaces at the rate of 1 space for every storage slot. This requirement may be amended as part of an approved special use permit or subject to a parking study if authorized by Section 5.1 of this Ordinance when the principal use is permitted by-right. 5. The addition of a small watercraft storage structure to a nonconforming use shall require a special use permit. 2 • 2020-09 Board of Commissioners Hearing Draft-Height Modifications Amendment Section 2.1 Measurements BUILDING HEIGHT The vertical distance measured from the average elevation of the proposed finished grade at the front of the structure to one of the following (see Figure 2.1: Building Height Measurement) 1. The midpoint between eave and ridgeline on a simple sloped roof(e.g., gable or hip roof) or curved roof(e.g., barrel roof); 2. Where there are multiple roof planes (e.g., gambrel or mansard roof), the highest midpoint on a sloped or curved roof surface or the highest flat roof plane, whichever is highest;or 3. The highest roof plane on a flat roof(not including any parapet wall). Appurtenances usually required to be placed above the roof level and not intended for human occupancy(e.g., antennas, chimneys, solar panels) shall not count toward the building height (see Section 3.1.3.8, Structural Appurtenances). Figure 2.1: Building Height Measurement Gable Roof Gambrel Roof Flat Roof v , Ili ni ,r1 Itt - \ LE -- .,So ui R m i m ai [ME nli1 :LL I ' III m -- 5 I I litiiii!!!* —_ iII IIii1il; m `,';Ili?:IuI lliIIIIII'_ i 1 __ 1--I i �� -, I!!_ 1 2020-09 Board of Commissioners Hearing Draft-Height Modifications Amendment Section 3.2 Residential Zoning Districts 3.2.14. RESIDENTIAL MULTI-FAMILY MEDIUM-HIGH DENSITY(RMF-MH) DISTRICT D. District Dimensional Standards Single Multi- Standard Family Duplex Triplex Quadraplex Family Detached Lot area, minimum (square feet)* 4,000 7,500 12,500 17,500 20,000 1 Lot width, minimum (feet)* 40 90 2 Front setback(feet)* 15 30 3 Side setback, street(feet)* 10 30 4 Side setback, interior(feet)* 5 20 5 Rear setback(feet)* 15 25 Density, maximum (dwelling units/acre) 25 Required Open Space(%of project site) 20 Building height, maximum** 3 4 stories, with a maximum of 45 50 feet** * Does not apply to Performance Residential Developments(see Section 3.1.3.D). ** Heights over 35 feet subject to additional setback of 4 additional feet 3.2.15 RESIDENTIAL MULTI-FAMILY HIGH DENSITY(RMF-H) DISTRICT D. District Dimensional Standards Single Standard Family Duplex Triplex Quadraplex Multi- Detached Family Lot area, minimum (square feet)* 3,000 6,000 9,000 12,000 15,000 1 Lot width, minimum (feet)* 40 80 2 Front setback(feet)* 15 30 3 Side setback, street(feet)* 10 30 4 Side setback, interior(feet)* 5 20 5 Rear setback(feet)* 15 25 Density(maximum dwelling units/acre) 36 Required Open Space(%of project site) 20 Building height, maximum** 3 4 stories, with a maximum of 45 50 feet * Does not apply to Performance Residential Developments(see Section 3.1.3.D). ** Heights over 35 feet subject to additional setback of 4 additional feet 2 2020-09 Board of Commissioners Hearing Draft-Height Modifications Amendment Section 3.4 Commercial and Industrial Districts 3.4.6 OFFICE AND INSTITUTIONAL (O8J) DISTRICT District Dimensional Standards Nonresidential Standard All es Uses and Residential Uses Mixed Use Structures Lot area, minimum (square feet)* 15,000 1 Lot width, minimum (feet)* 90 2 Front setback(feet)* 25 3 Side setback, street(feet)* 25 Side setback, interior* ** Rear setback* ** Density, maximum (dwelling units/acre) 2.5*** Building height, maximum (feet) 40 52 * Does not apply to Performance Residential Developments(see Section 3.1.3.D). ** Determined in accordance with Section 3.1.3.C, Setback Requirements in Certain Commercial and Industrial Districts.. *** Applies only to Performance Residential Developments(see Section 3.1.3.D). 3.4.10 LIGHT INDUSTRIAL (I-1) DISTRICT D. District Dimensional Standards Standard All Uses Lot area, minimum (square feet) None 1 Lot width, minimum (feet) None 2 Front setback(feet) 50 3 Side setback, street(feet) 50 Side setback, interior * Rear setback Building height, maximum (feet) 44:145** * Determined in accordance with Section 3.1.3.C, Setback Requirements in Certain Commercial and Industrial Districts. ** Buildings located within the Employment Center or Commerce Zone place types and fronting along a Collector, Minor Arterial,or Principal Arterial as indicated on the Wilmington MPO Functional Classification Map,may exceed 40 45 feet in height provided their FAR does not exceed 1.0. 3 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions Section 1.7 Transitional Provisions 1.7.3 APPROVALS GRANTED BEFORE EFFECTIVE DATE A. Approved zoning permits, building permits, variances, special use permits, subdivision plans, and site plans that are valid on February 3, 2020 shall remain valid until their expiration date. Development may be completed in accordance with such approvals even if such building, development or structure does not fully comply with provisions of this Ordinance. If building is not commenced and diligently pursued in the time allowed under the original approval or any extension granted, then the building, development or structure shall be subject to the requirements of this Ordinance. B. To the extent a prior-approved application proposes development that does not comply with this Ordinance, the subsequent development, although permitted, shall be nonconforming and subject to the provisions of Article 11: Nonconforming Situations. C. Any re-application for an expired development approval or permit shall comply with the standards in effect at the time of re-application. D. All development and use of land in a PD District that was approved before September 8, 2020 shall comply with the standards approved for that district. The Planning Director may approve minor deviations from the PD District standards identified in Section 10.3.4.C.8.b, Minor Deviations, provided the deviations have no material effect on the character of the approved development. All other modifications of the PD District standards shall be considered major modifications and are subject to the procedures and standards in Section 10.3.4, Master Planned Development. 1.7.4 APPLICATIONS IN PROGRESS BEFORE EFFECTIVE DATE A. Applications for development approvals and permits that were submitted in complete form and are pending on February 3, 2020 shall be reviewed and decided in accordance with the regulations in effect when the application was accepted. B. Completed applications shall be processed in good faith and shall comply with any time frames for review, approval, and completion as established in the regulations in effect at the time of application acceptance. If the application fails to comply with the required time frames, it shall expire and future development shall be subject to the requirements of this Ordinance. C. An applicant with a pending application accepted before February 3, 2020 may opt to have the proposed development reviewed and decided under the standards of this Ordinance by withdrawing the pending application and submitting a new application in accordance with the standards of this Ordinance. The application submittal fees will be waived for this new application. D. An applicant with a pending application for a PD District that was accepted before September 8, 2020 may opt to have the proposed PD District reviewed and decided under either the zoning regulations in effect at the time the application was accepted, in whole, or the procedures and standards of this Ordinance, in whole. If 1 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions the applicant opts to have the proposed PD District reviewed under the procedures of this Ordinance, the applicant shall withdraw the pending application and submit a new application in accordance with the standards of this Ordinance. The application submittal fees will be waived for this new application. E. Except for a PD District approved in accordance with subsection D above, too the extent an application approved under this section proposes development that does not comply with this Ordinance, the development, although permitted, shall be nonconforming and subject to the provisions of Article 11: Nonconforming Situations. 3.3.7 PLANNED DEVELOPMENT (PD) DISTRICT • F. Purpose The Planned Development (PD) District is established to encourage innovative integrated, and efficient land planning and site design concepts that support a high quality of life and achieve a high quality of development under an integrated development plan that would otherwise not be possible under general district requirements. Specifically, the intent of tho that achieve a high quality of development, environmental sensitivity, and adequate public facilities and services, and that provide community benefits, by: • Reducing the inflexibility of zoning district standards that sometimes result from strict application of the base district, and development standards; • Allowing greater flexibility in selecting: the form and design of development, the ways by which pedestrians and traffic circulate, how the development is located and designed to respect the natural features of the land and protect the environment, the location, and integration of open space and civic space into the development, and design amenities; • Encouraging a greater mix of land uses with the same development; • Allowing more efficient use of land, with smaller networks of streets and utilities; • Providing pedestrian connections within the site and to the public right-of-way; and • Promoting development forms and patterns that respect the character of established surrounding neighborhoods and other types of land uses. • Promote economical and efficient patterns of land use that are sensitive to natural features; between origins and destinations of persons living, working, or visiting in such development;and 2 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions • G. Concept /- !F a +eT r H. Use Standards Allowed uses and use-specific standards for principal, accessory, and temporary uses are identified ectabliched in Article 4: Uses and Use-Specific Standards. No more than 30 •. • . - . The allowed uses are only permitted for development if they are included in the MPD Master Plan that is approved as part of the PD district in accordance with Section 3.3.3.A, MPD Master Plan. I. District Dimensional sy Standards Standard Residential Uses Commercial Uses Industrial Uses Minimum district size, under common ownership or joint petition: 10 acres Building setback from PD District CB Setback I-1 Setback boundary(feet) 20 Requirements Requirements Building setback from pedestrian and bicycle paths (feet) 10 Front setback(feet) Established in MPD Master Plan in accordance with Section Side setback, street(feet) 3.3.3.A, MPD Master Plan Side setback, interior(feet) None 20 50 Rear setback (feet) None 20 50 None None* ** None 10* ** Density, maximum (du/acre) Intensity, maximum Established in MPD Master Plan in accordance with Section 3.3.3.A, MPD Master Plan Building height, maximum (feet) 40**" * Maximum density in Urban Mixed Use areas identified on the New Hanover County Future Land Use Map shall be established in the MPD Master Plan. Maximum Density in areas outside of the Urban Mixed Use areas shall also be established in the MPD Master Plan, but shall not exceed 17 dwelling units per acre. Setback is Dictriste. =There is no maximum building height for agricultural or industrial uses.The maximum building height is 80 feet for buildings located within the Urban Mixed Use, Community Mixed Use, or Employment Center place-types as-iadisated areas identifieu on the -e-- '- --: - --- -- •:- -: Vew Hanover County Future Land Use and fronting along a collector, minor arterial, or principal arterial as indicated on the Wilmington Urban Area MPO functional classification map. 3 2020-09 Board of Commissioners Hearing Draft-Planned Development (PD) District Revisions J. Other District Standards 1. Densitynnte.,sity Bon.ises - from the gross site area. The residontial density factor of the PD b. The maximum allowed density for residential units in the AE and VE• --- - -- - - - • • - -- • • -- - - - - - •- •• • - - -- •- - -- _ - - - accordanco with Table 3.3.7.E.1: Allowed Donsity Bonus Points: 1. A total score of 75 points or moro - an increase in density from 2. A total ecoro of 165 points or moro - an increase in density from 10.2 to 17 units per acre. Table 3.3.7.E.1: Allowed Density Bonus Points Feature Paints items, efiel-steFagc. - - 4 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions Table 3.3.7.E.1: Allowed-Density Bo-nus Points Feature s fer-New44aflevef-Get 1-5 g€441-wast-e-tr-a4=4-er--statien, 3-0 40 2-a = = s2-0 = 20 1. Compensating Community Benefits Compensating community benefits shall be identified in the MPD Master Plan. These benefits shall be in addition to what is otherwise required to meet the minimum standards of this UDO and other County, state, and federal regulations. They may include, but are not limited to: a. Improved Design The use of architectural design that exceeds any minimum standards established in this UDO or any other County regulation, or the use of site design incorporating principles of walkable urbanism and traditional neighborhood development, compatible with the comprehensive plan and other adopted County plans. b. Natural Preservation The preservation of sensitive lands such as natural habitats, natural features, or trees that exceed the requirements of this UDO, when they are located on the site. c. Improved Connectivity for Pedestrians and/or Vehicles Additional connections to existing roads, bicycle facilities, and pedestrian facilities that provide additional connectivity to and from the development and existing residential and commercial development in the County, beyond the requirements of Section 5.2, Traffic, Access, and Connectivity. 5 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions d. Mixed-Use Development The approval of a significant amount of mixed-use development on the site, by ensuring that a minimum of 35 percent of the total gross square feet in the development(and 25 percent of the land area) will be developed in an integrated mixed-use form (residential and nonresidential), with sidewalks on both sides of the street, and street trees spaced appropriately, along the street. e. Green Building Practices • The inclusion of green building practices, that may include but not be limited to: LEED buildings (or a comparable); the integration of low- impact development techniques; the use of alternative energy to generate power(solar or wind); energy conservation practices; water conservation practices;tree conservation (exceeding the requirements of this UDO);recycling;and similar practices. f. Dedication of Land or Facilities or In-Lieu Fee Contribution 1. Parks, Recreation, and Open Space The dedication of land, construction of facilities, or contribution of in-lieu fee for public parks, trails and trail linkages, greenways, waterfront access, recreation facilities, or open space identified in the comprehensive plan or other adopted County plans, beyond the requirements of Section 5.5, Open Space Set Aside Standards. 2. Transportation Facilities The dedication of land, construction of facilities, or contribution of in-lieu fees for off-site transportation facilities that exceed the mitigation requirements of Section 5.2.4, Traffic Impact Worksheet. 3. Community Facilities The dedication of land or construction of facilities for community facilities (e.g., cultural arts center, public plaza, and public art) identified in the comprehensive plan or other adopted County plans. 4. Workforce Housing The construction of workforce dwelling units. 5. Other Any other community benefit that would provide benefits to the development site and the citizens of the County, generally. 2. Development Standards Subject to Modification Except as required in subsections 3 through 5 below, development in a PD district shall comply with the standards in Article 5: General Development Standards, Article 6: Subdivision Design and 6 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions Improvements, Article 7: Stormwater Management, Article 8: Erosion and Sedimentation Control, and Article 9: Flood Damage Prevention, unless they are modified as allowed by Table 3.3.7.E.4: PD District Development Standards Subject to Modification, and accompanied by documentation providing a clear basis for why the change is needed, how it supports the purposes of the district, and how it supports high-quality development. �abl *-m(1^-rds Subject *-, A r 4 ...., Article 5: General Development Standards Section 5.1 Parking and Loading MPD Master Plan Section 52 Traffic,Access,and Connectivity MPD Master Plan Section 5.3 Tree Retention No modification Section 5.4 Landscaping and Buffering No modification Section 5.5 Exterior Lighting MPD Master Plan Section 5.6 Signs MPD Master Plan Section 5.7 Conservation Resources No modification Section 58 Open Space Requirements MPD Master Plan Section 5.9 Fire Hydrants- No modification Section 5.10 Airport Height Restriction No modification Article 6: Subdivision Design and Improvements Section 6.1 General Purpose ■o modification Section 6.2 Design Standards MPD Master Plan Section 6.3 Improvements MPD Master Plan Article 7: Stormwater Management (reserved) Article 8: Erosion and Sedimentation Control (reserved) Article 9: Flood Damage Prevention No modification 3. Minimum Infrastructure Improvements The following minimum improvements and public services shall be provided in accordance with all standards set by the County or appropriate local or State agency: a. Water supply and sewer facilities provided by the Cape Fear Public Utility Authority or an equivalent agency; b. Fire hydrant and water supply systems that meet the standards specified in the National Fire Protection Association Standard as amended; c. A drainage plan in accordance with pursuant to Section 6.3.3.E, Surface Water Drainage, and the County's Stormwater Management Ordinance. d. Street lights, at the rate of one fixture per 500 linear feet or less of roadway. 7 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions c. Tot lots and/or mini parks (adequacy of design and improvements to or more per 1,000 population and within 1 mile distanco of residential or pedestrian trails; f. Audible fire alarm systems connected directly to a central dispatch system for all structures except single-family and two-family (duplex residential. 4. Building Separations Standards a. The project shall be designed so as to avoid encroachment into the path of any proposed transportation project included in the Wilmington MPO's Metropolitan Transportation Plan. b. No part of a detached single family dwelling unit or its accessory structure shall wray be located closer than 10 feet to any part of any other detached single family dwelling or its accessory structure. c. No part of a multi-family or attached dwelling unit or its accessory structure shall be located closer than 20 feet to any part of another dwelling unit, accessory structure, or nonresidential building. 5. Pa ing Off street parking shall be provided in accordance with Section 5.1, Parking and Loading, except the design of parking lots or shared parking 6. Signs intersections within the PD District. Signs on public streets shall conform 7 nccess and Connectivity a. The PD district shall have direct access to and from an existing major .. A .. •e e. Classification Map. This direct access requirement will be satisfied if: 1. One or more property boundary lines is contiguous with and 2. The PD district accesses an existing major or minor arterial minimum standards for a collector road. b. All interior drives shall be designed so as to provide adequate access 8 2020-09 Board of Commissioners Hearing Draft-Planned Development (PD) District Revisions Article 64: a. The maximum allowed height for a continuing care retirement facility building is 55 feet; and b. The thoroughfare requirements in subsection 5 above, may be --: - - - -. - - - - - -- '- , - - - - =- - - -- - - - - -- - -- • 9. y Property Owner's Association A Comity property owner's association shall be established in accordance with Section 5.8.3, Open Space Provisions, and Section 3.1.3.D.7. Rights-of-way platted for public use shall fnay not be altered to private rights-of-way by any action of a community property owner's association unless approved by the TRC. Article 2: Section 5.8 ro Section 5.1 Packing nd L oading Section 5.9 €ire-#yes Section 5.2 - • , •--- - -- - - • • Article 6: ---- _• ': .e• _ --e - ----- Section 5.3 Tree Retention Article 7: Section 5.4 Article 8: Erosion and Sedimentation Control- Section 5.6 s Article 9: Section 5.7 Conservation Resource:, Article 11: 10.3.4 MASTER PLANNED DEVELOPMENT A. Purpose The purpose of this section is to provide a uniform means for amending the Official Zoning Map to establish a master planned development district. A master planned development (MPD) is a development under unified control with more flexible standards and procedures that are conducive to creating a more mixed-use, pedestrian-oriented development than could be achieved through general use zoning district regulations. B. Applicability The procedure in this section is required for any amendment of the Official Zoning Map that rezones land to a master planned development district, including the UMXZ, RFMU, EDZD, or PD districts, or for major modifications to an already approved master planned development district. Any modification to an approved master planned development district that is not a • 9 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions minor deviation as set forth in Section 10.3.4.C.8.b, Minor Deviations, is a major modification. C. Master Planned Development Procedure Figure 10.3.4.0 summarizes the requirements and procedures in Section 10.2, Standard Review Procedures, that apply to master planned developments. Subsections 1 through 8 below, specify the required procedure for a master planned development, including applicable additions or modifications to the standard review procedures. Figure 10.3.4.C: Summary of Planned Development Procedure IPublic Hearing Procedures 1 2 3 4 5 6 7 8 Pre-Application Community Application Planning Public Hearing Planning Board Board of Post-Decision Conference Information Submittal& Director Review Scheduling& Hearing& Commissioners Limitations and Meeting Acceptance &Staff Report Notification Recom- Hearing& Actions (TRC Optional) mendation Decision 1. Pre-Application Conference A pre-application conference in accordance with Section 10.2.2, Pre- Application Conference, is required. 2. Community Information Meeting The applicant shall conduct a community information meeting in accordance with Section 10.2.3, Community Information Meeting. 3. Application Submittal and Acceptance Applications shall be submitted in accordance with Section 10.2.4, Application Submittal and Acceptance. In addition to all other application requirements set forth in the Administrative Manual, the application shall include the following: a. An MPD Master Plan meeting the requirements of Section 3.3.3.A, MPD Master Plan, depicting the general configuration and relationship of the principal elements of the proposed development, including uses, general building types, density/intensity, resource protection, pedestrian and vehicular circulation, open space, public facilities, and phasing; b. An MPD Terms and Conditions document meeting the requirements of Section 3.3.3.B, MPD Terms and Conditions Document, specifying terms and conditions defining development parameters, providing for environmental mitigation, and outlining how public facilities will be provided to serve the master planned development; and c. To ensure unified control, a copy of the title to all land that is part of the proposed master planned development district or land that is 10 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD)District Revisions affected by a major modification to an existing master planned development district. 4. Staff Review and Action a. If requested by the applicant, the TRC shall review the application and provide any comments on the proposed master planned development to the Planning Director, who shall transmit any comments received from the TRC in writing to the applicant. b. The Planning Director shall review the application, prepare a staff report, and provide a recommendation in accordance with Section 10.2.5, Staff Review and Action. The Planning Director may recommend revisions to the proposed MPD Master Plan and MPD Terms and Conditions document. c. If the proposed master planned development involves a rezoning to or major modification of an the EDZD District, the staff report shall address each of the following: 1. The suitability of the proposal for the general type of function, the physical characteristics of the land, and relation of the proposed development to surrounding areas and existing and probable future development; 2. The sufficiency of supporting evidence in the application showing that the proposed location can meet the basic criteria for exceptional design; 3. The relation to major roads and mass transit facilities, utilities, and other facilities and services; 4. The adequacy of evidence of unified control and the suitability of any proposed agreements, contracts, deed restrictions, sureties, dedications, contributions, guarantees, or other instruments, or the need for such instruments, or for amendments in those proposed; 5. The suitability of plans proposed or the suggestion of conditions; and 6. The consistency with the Comprehensive Plan and other adopted plans for development in the vicinity, and how the EDZD district might be reasonable and in the public interest if approved. 5. Public Hearing Scheduling and Public Notification The Planning Director shall schedule public hearings and provide public notification in accordance with Section 10.2.6, Public Hearing Scheduling and Public Notification. 6. Planning Board Review and Action a. The Planning Board shall conduct a public hearing on the application and make a recommendation on the application in accordance with Section 10.2.8, Advisory Body Review and Action, and Section 10.3.4.D, Master Planned Development Review Standards. The Planning Board's recommendation shall address whether the 11 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions proposed master planned development is consistent with the Comprehensive Plan. b. If the Planning Board's decision is to recommend denial of the application, the applicant must submit written notice to the Planning Director of the applicant's intent to proceed with a hearing before the Board of Commissioners within 10 calendar days of the Planning Board's decision. If the applicant does not provide such notice within that time period, the application shall be deemed withdrawn and no further review of the application shall occur. 7. Board of Commissioners Review and Action a. If appropriate, the Board of Commissioners shall conduct a public hearing on the application and make a decision on the application in accordance with Section 10.2.9, Decision-Making Body Review and Action, and Section 10.3.4.D, Master Planned Development Review Standards. The decision of the Board of Commissioners shall be one of the following: 1. Approve the master planned development district subject to the MPD Master Plan and MPD Terms and Conditions document in the application; 2. Approve the master planned development district subject to additional or revised conditions related to the MPD Master Plan or MPD Terms and Conditions document; 3. Deny the master planned development district; or 4. Remand the master planned development application back to the Planning Board for further consideration. b. Prior to deciding to adopt or deny a master planned development, the Board of Commissioners shall adopt a statement that: 1. Addresses the consistency of the master planned development with the Comprehensive Plan by either: I. Describing the consistency or inconsistency of the master planned development with the Comprehensive Plan; or ii. If the master planned development is approved, declaring that the approval is also deemed an amendment to the Comprehensive Plan, and providing an explanation of the change in conditions Board of Commissioners took into account in approving the master planned development to meet the development needs of the community. No additional request or application for amendment to the Comprehensive Plan shall be required. 2. Explains why the decision is reasonable and in the public interest. 12 2020-09 Board of Commissioners Hearing Draft-Planned Development (PD) District Revisions c. Only conditions of approval mutually agreed to by both the applicant and the Board of Commissioners are allowed. 8. Post-Decision Limitations and Actions The post-decision limitations and actions in Section 10.2.10 apply, in addition to the provisions in subsections a through c below. a. Effect of Approval 1. Lands classified to master planned development district shall be subject to the approved MPD Master Plan and MPD Terms and Conditions document. Such approval does not itself authorize specific development activity, but allows the property owner to obtain subsequent development approvals and permits necessary to implement the MPD Master Plan and MPD Terms and Conditions document, in accordance with the applicable procedures and standards set forth in this Ordinance. Subsequent development approvals and permits shall comply with the MPD Master Plan and MPD Terms and Conditions document. 2. Approval of an MPD Master Plan shall establish a vested right in accordance with N.C.G.S. §§ 153A-344.1(c) and (d). b. Minor Deviations Subsequent applications for development within a master planned development district may include minor modifications from the approved MPD Master Plan and MPD Terms and Conditions document, provided such modifications have no material effect on the character of the approved development. Changes in the following constitute minor modifications that may be approved by the Planning Director: 1. Modifications in building placement, provided the placement does not decrease approved setbacks by more than 10 percent; 2. Increases to building size and height not to exceed 10 percent provided all other applicable standards of this Ordinance are met; 3. Modifications to structure floor plans; 4. Modifications to the driveway locations not exceeding 10 percent of the length of the subject property line, or as required by the North Carolina Department of Transportation; and 5. Modifications to the proportion of housing type not to exceed 10 percent. c. Expiration 1. If no building permit has been issued for the land approved as a master planned development district within two years of the date of approval, the Planning Director may, at the Planning Director's discretion, schedule a hearing for the Planning Board to consider whether active efforts are proceeding in accordance with the approved master planned development. If the Planning Board 13 2020-09 Board of Commissioners Hearing Draft-Planned Development(PD) District Revisions determines that such efforts are not proceeding, the Board may, at the Board's discretion, initiate a Zoning Map amendment in accordance with Section 10.3.2, Zoning Map Amendment, to rezone the master planned development district to its classification prior to approval, or to another zoning district the Board determines is appropriate. 2. A landowner may request, and the Planning Director may grant, one, one-year extension of the two-year time period established in subsection 1 above if the Planning Director determines that site conditions have not substantially changed since the approval of the master planned development district. The applicant must submit the request in writing prior to the expiration of the time period. 3. If site conditions have substantially changed since the approval of the master planned development district, a landowner may request and the Board of Commissioners may grant, at a regularly-scheduled public meeting, one extension not to exceed three years, of the two-year time period established in subsection 1 above. The applicant must submit the request in writing prior to the expiration of the time period. D. Master Planned Development Review Standards The advisability of establishing a master planned development district is a matter committed to the legislative discretion of the Board of Commissioners. In determining whether to approve a proposed master planned development district, the Board of Commissioners shall consider the review standards for Zoning Map amendments in Section 10.3.2.C, Zoning Map Amendment Review Standards. The Board of Commissioners shall not approve a master planned development district unless it complies with the requirements in Section 3.3.3, General Requirements for Mixed Use Zoning Districts, and the standards that apply to the specific master planned development district set forth in Section 3.3, Mixed Use Zoning Districts. 14 2020-09 Board of Commissioners Hearing Draft-Self-Storage Design Standards Section 2.3 Definitions and Terms M INI-WAREHOUSE/SE LF-STORAGE A facility in which storage space such as rooms, lockers, and/or containers (storage units) are rented to tenants, usually on a short-term basis (month-to-month), for profit. - - - - --- - - --= -- - - - - - -- - = - - - - . The facility may include outdoor storage areas for boats and recreational vehicles (RVs) that are licensed and in operable condition. 4.3.4 COMMERCIAL USES C. Commercial Services 2. Mini-Warehouse/Self Storage When located in the B-2 District or UMXZ District or when established on a lot having frontage on Market Street, Carolina Beach Road, College Road, or Castle Hayne Road, mini-warehouse/self-storage facilities shall comply with the following standards: a. Except as otherwise authorized in this subsection, all property stored on the site shall be enclosed entirely within enclosed buildings. b. A minimum of ten percent of the area of each building façade that faces a public or private street, a shared parking area, a pedestrianway, or designated open space shall consist of transparent windows or doors. For purposes of this requirement, portions of a façade that are screened from view at ground level from the street, parking area, pedestrianway, or open space, as applicable, shall not count toward the building facade area. c. The color of building exteriors visible from ground level view from the street or from abutting properties at ground level shall be natural tones found as predominant colors in the natural environment, such as muted tones of green, brown, beige, yellow, or tan. The use of colors on a building exterior that are significantly more intense, vibrant, or bright compared to nearby properties so as to call attention to the establishment is prohibited. c. The use of metal as a primary material is prohibited on perimeter or exterior walls that are visible from an arterial street or from a residential district or existing residential development. d. The only commercial uses permitted on-site shall be the rental of storage space, the pickup and deposit of goods or property in dead storage, and the sale or rental of goods incidental to on-site storage (e.g., boxes, tape, and labels). 1 2020-09 Board of Commissioners Hearing Draft-Self-Storage Design Standards e. Outdoor storage shall be limited to the storage of licensed and operational recreational vehicles and boats. Such storage shall: 1. Be located to the rear of a principal structure; 2. Be screened from all public rights-of-way and abutting properties by a fence or wall and vegetation that complies with the design requirements for a Combination Planted Buffer Strip and Fencing type of transitional buffer; 3. Limit the height of any boat or recreational vehicle located within 45 feet of a property line to a maximum of 12 feet and any other boat or recreational vehicle to a maximum of 14 feet; 3. Be limited to a specific delineated area which does not interfere with on-site vehicular circulation; 4. Not exceed 20 percent of the buildable area of the site; and 5. Not include any dry stacking of boats (dry stacking of boats is prohibited). 2 -.-qi II ttt, i.\' '....7 : • ' . • • mr„....ffiltilil..:4,..1 iz. _ • 1 12 I- ■ ID EICIPII • • ..q, -:., .1:: ..!1 tk"lii. i;': • *. • • .,. ..... .1;:. --: • -0. - '. . . : - :t''. f..1"1...re',,,tt-&-.4."1‘011.- •., . t a' 1"."4. ''''' 13Pliir l' ` ti 419 STATE OF NORTH C AROLINA COUNTY OF I IHANOVER I, Reba D.Johnson, a notary public in and for the State and county aforesaid, do hereby certify that personally appeared before me this day Elizabeth Gurgenous and Jesse Gurganoua her husband, and each acknowledged the due execution of the foregoing and annexed , Instrunnt, for the purposes therein expressed. •Stnsas sty hand and seal, this the 19 day of June, 1950 (notar141 seal) Reba D.Johnson My commission expires 6/24/50 Notary Public STATE OF NORTH CAROLINA NSW HANOVER COUNTY The foregoing certificate of Reba D. Johnson, notary public of New Hanover County is adjudged to be correct. £et the instrument with the certificates be recorded.This the 19 day of June, 1950 Margaret Vernell DeVane,Asst Received and recorded June 1 9, 1950 Clerk Superior Court at 5-00 and verified. Re inter of Deeds R.H. DAVIS ET AL STATE OF NORTH CAROLINA, NEW HANOVER COUNTY • DECLARATION OF RESTRICTIONS: G. Darden,den, C.McD..DavieRandNMildredtDa� Davis, Bontth , did on the • 16th day of July 1946 coney to George L. Uain, Trustee, the hereinafter described real property andndid authorise the said George L. wain, Trustee, to execute any instrument in writing, convey, mortgage or otherwise encumber said lands or premises or any of the sane provided that any two of the cestui qua truatents named in said instrument evidence their consent to said mortgage or other conveyance by joining in the execution of any such deed deed of trust, mortgage or other conveyance which deed is recorded in the Office of the Register of Deeds of New Hanover County in Book 390, at rage 31. That under and by virtue of the powers vested in George L. Cain by the deed herein- above referred to by and with the consent of any two of the grantors therein, the said George L. Cain, Trustee, Bessie C. Darden and R.B. Davis do hereby covenant and agree to and with all persons, firms and corporations now owning or hereafter acquiring lots in the development he:eio- after described, that all of the lots shown upon the map of that certain subdivision known and designated as Porter's Neck Plantation, Sections B. and C. which map was prepared by J.A. Loughlin C.E.•and dated August 1949 and which map is recorded in the Office of the Register of Deeds of New Hanover County in Map Book 5, at Page 23, and which lots are now owned by R.B. LavLs Bessie C. Darden, C.NeD Davis and Mildred D Adams are hereby subjected to the following restric. Lions as to the use thereof; running with said properties by whomsoever owned to-wit: 1. Haigh lot in the aforesaid subdivision is to be used for residential purposes only ano may not be used for commercial purposes and nomatructure shall be erected, placed or permitted to remain on any lot to be used for anypurpose other than residential purposes, except garages and necessary out buildings for the proper enjoyment of this property, for residential purposes. 2. No dwelling or any structure shall be located nearer any side line than ten percent of the width of said lot on which said dwelling or structure is located. / 3. No voxious and offensive trade or activity shall be camried on or maintained on any lo lot become part an annoyance any lot, not shall any use be made of any portion of said property which may be yance and nuisance to the neighborhood. 4. N No trailer or tent shall at any time be used as a residence on said property. 5. No'dwelling shall be erected on any of the lots contained on the map herein referred to which shall moat less than Six Thousand, Five Hundred ($6,600.00) Dollars at the tins of con- structipa_aOd_no dwelling can be constructed or erected on any of the Iota on the map herein referred tai.. I�11 the builder shall have submitted this plans to George L. Cain or the person then acts lrmetee under deed recorded in Book 390 at Pa igr by said must approve ns 31 or to some person designated Provided ' _Teem ppprove said pane and specifications before buiiditeg operations start ra that•this restriction may be changed of amended as hereinafter provided. k. 6. lf �imltil such time as municipal sewerage system is available sewerage disposal shall only be by W•pttic tanks which meets the approval of the North arolina State Board of Health. 7. Sbomld:any portion of this property be taken into or incorporated in a municipal corporatj , governed by a governing body in which the residents take part in the exaction this governing body, then and in that event, said b,� power to l�the building restriction for said governing nonive ""sh shall residence the be erected' neon at a cost less than Six Thousand,rFivebHundrredo($6,500.00)1Dolllaarss. a. • Thee eobenante are to run with the land and shall be binding on y. persons ele4dg under than until June lat. 1975, at which time said co antomatioalty'estsmded for successive period, of tea Tars unless by vet t1 420 then owners of the lots is is agreed to change said cotenants in whole or in part. 9. If the parties hereunto or any of them or their heirs or assigns shall violate any I, of the covenants herein, it shall be lawful for anynother person or persons owning any real pn pertyysituated ins said development elopment or subdivision to prosecute any proceeding at law or and to prevent him or them from dordoing�iolating or atte(�pting to violate any such covenant 10. shall Invalidation of any of the other provision or thereof force andoeff ct IN TESTIMONY WHEREOF, the said George L. Cain Trustee have hereunto set their hands and affixed their seals, ea s,the 23rd�da.BofD June and Bessie C. Dar en, 7 June 1950. George L. Cain (SEAL) R.B. Davis SEA,) 1 STATE OF NORTH CAROLINA, Bessie C. Harden SEAL) (I COUNTY OF NEW HANOVER. I, P.W. Killian a Notary Public in add for the State and County aforesaid, do hereb, certify that George L. Bain, Trustee, personally appeared before am this day end acknowledge the due execution of the foregoing and annexed instrument for the purposes therein expressed Witness my hand and seal thus the 24th day of June 1950. (Notarial Seal) P.W. Killian, Notary Public. My com expires Feb 25, 1952. STATE OF NORTH CAROLINA, COUNTY OF NEW HANOVER. I. W D Hughes, Notary Public in and for the State and County aforesaid do hereby certify that Besse C. l' y arden, personally appeared before me this day and acknowledged the due execution of the foregoing and annexed instrument for the purposes therein expressed. Witness my hand and seal this the 29th day of June 1950. (Notarial seal) WTD. Hughes, Notary Public. My com expires 9-10-1950 STATE OF NORTH CAROLINA, COUNTY OF HALIFAX I, harold S. Vick a Notary Public in and for the State and County aforesaid, do hereby certify that R.B' Davis, personally appeared before se this day and acknowledged the 1 due execution of the foregoing and annexed instrument for the purposes therein expressed. Witness my hand and seal this the 23rd day of June 1950. (Notarial Seal) Harold S. Vick, Notary Public. My commission expires May 29 1952. STATE OF NORTH CAROLINA, NEW HANOVER COUNTY. The Foregoing Certificates of P.W. Killian and W.D. „ Hanover County and Hughes Notarise dged Public of co y trumen S. Vick the Notary Public be ecor ed County are adJidged to be sorts Let the instrument with the Certificates be re corded. This the 29th day of June 1950. Elms C. Gore, Deputy Received and recorded the 29th day of Clerk of Superior Court, June 1950 as 3-15 P.M. and verified. Reg stet o Deeds. H. E. PHILLIPS, TR , at al s STATE OF NORTH CAROLINA TO : COUNTY OF NEW HANOVER • JOSEPH E. JOHNSON,ET DX THIS DOD MADE this June 10, 1950 by and RELEASE DEED s between H.E. Phillips, Trustee, and B. E. Bryan,both of the County of Wayne, State of North Carolina, parts s of the first part, and Joseph E.Johnson and wife, Annie L. Johnson, of the County ofNew Rano er State of NorthCarolina, parties of the second part; W I T N E S S E T Hs WHEREAS, wife, Annie L Joohnso n executed anddeliveredntoaN.EE. Phillips, Trustee, aedeed�ofotrust which is recorded in book 424 page 485, of New HanoverCount Re istr { premises in said deed of trust conveyed and described, including among othe the lands and premises hereinafter described and conveyed; and WHEREAS, H.B. Phillips, Trustee, and B. E. Bryan execute these for the Y presents onl purpose of releasing and discharging the lands and premises herein described and cony ysd from the lien of said Deed of Trust but in all other respects said Deed of Trust and the not! and indebtedness shall continue in full force and effect. it • STATE OF NORTH CAROLINA = . , THE 8'ENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF NEW HANOVER � y! FILE NO. 16-CVS-3791 � i t ,*-1, eti vL PORTERS NECK QUALITY OFf, #:• ASSOCIATION, CARL SAMET and .)' wife, LESLIE SAMET, BY ) Petitioners ) ) v. ) ORDER NEW HANOVER COUNTY and ) ) PORTERS NECK HOMEOWNERS ) ASSOCIATION, INC., RUE COP' Respondents ) ` HANOVER r: j'1fiCUfe w (0 "�� puty Cleric of Supec;UM t_i:;; . This cause coming to be heard and being heard by the undersigned Superior Court Judge presiding at the May 1, 2017, session of Civil Superior Court in New Hanover County, upon Petitioners'Appeal pursuant to N.C. Gen. Stat. § 160A-393. Petitioner Petitions this Court to reverse an August 23, 2016, Order of the New Hanover County Board of Adjustment in case number ZBA-910. The Court has reviewed the entire Record and the transcripts of the hearings before the New Hanover County Board of Adjustment. The Court held a hearing in New Hanover Superior Court on May 3, 2017, and heard from Kurt Fryar, Counsel for Petitioner; Eric Remington, Counsel for Respondent Porters Neck Homeowners Association, Inc. ("POA"); and, Sharon Huffman, Counsel for Respondent New Hanover County("County"). The Court has also reviewed the briefs, case law and other legal authority. Based on that review, for the reasons set forth below,the Court hereby makes the following FINDINGS OF FACT: 1. POA owns two waterfront lots which are located at 8344 and 8540 Bald Eagle Lane, New Hanover County, North Carolina(the "Lots"). POA uses the Lots as Community Boating Facilities. 2. The Lots were recorded in Section 13 of Porters Neck Plantation in Map Book 5, Page 23 of the New Hanover County Register of Deeds in June 1950. The Lots have been historically used for pedestrian and boat access to the water by holders of easements of ingress and egress to the Lots. 3. Title to the Lots was retained by Champion McDowell Davis, one of the four original owners of Porters Neck Plantation, until his death and then was conveyed to the trustees of the Champion McDowell Davis Charitable Foundation. 4. In 1988,the Porters Neck Company, Inc., acquired the Lots subject to existing easements of ingress and egress. Porters Neck Company also acquired additional real estate of approximately 800 acres with the intention to develop a golf course community whose residents would be permitted to utilize the Lots for boating related activities. A Master Plan for Porters Neck Plantation was approved in May 1989 by the New Hanover County Planning Board, and included the Lots as common open space areas to serve the Porters Neck Plantation community. 5. POA was created in connection with the golf course community development and took ownership of the Lots from Porters Neck Company in November 1992 through a deed recorded at Book 1629, Page 1359. The right to use the Lots was conveyed to residents of Porters Neck Plantation through the Protective Covenants of Porters Neck Plantation, dated June 13, 1991 and recorded at Book 1555, Page 0957. 6. Easements to use the Lots were conveyed to residents of Porters Neck Creekside Homeowners Association, Inc., in November 2000(Book 2854, Page 450)and to Porters Neck Bishops Park Home Owners Association, Inc., in September 2002 (Book 3430, Page 706). Both Creekside and Bishops Park were developed by Porters Neck Company. Additionally, some property owners along the west side of Bald Eagle Lane in Porters Neck Plantation Section E also have easements to use the subject properties. 7. PNQLA is an association organized to protect and foster the interest of the area subject to this case in and around Bald Eagle Lane and certain areas of Futch Creek Road. Petitioners Carl Samet and wife, Leslie Samet are the owners of Lot 10, 2 Section E.Porters Neck Plantation. That piece of real property has a street address of 8337 Bald Eagle Lane, Wilmington, NC 28411. 8. The Samets own an easement over lot 8344 Bald Eagle Lane. 9. The Samets are members of PNQLA. 10. The Samets and other lot owners on bald Eagle Lane have an interest in 8344 and 8540 Bald Eagle Lane by virtue of the Declarations and Restrictions recorded in Book 464, Page 419, of the New Hanover County Registry. 11. Lot 11-A and 35-A of Section B Porter's Neck Plantation are shown and delineated on a Map entitled"Sections B &C Porter's Neck Plantation"recorded in 1950 Map Book 5 at Page 23 of the New Hanover County Registry. Those lots bear the addresses of 8344 and 8540 Bald Eagle Lane, respectively. 12. The lots depicted in Map book 5 at Page 23 of the New Hanover County Registry are within an R-20S Residential District. 13. In August 1992, POA was issued a CAMA major development permit for improvements to the subject properties, including a driveway, small parking area, fixed dock, and a floating dock on 8344 Bald Eagle Lane, and all of the above improvements plus a boat ramp and gazebo at 8540 Bald Eagle Lane. 14. The definition for Community Boating Facility was originally added to County's Zoning Ordinance in July 1980 (Case A-37). In July 1992, County's Planning Board first heard options presented by staff for revisions to the Zoning Ordinance pertaining to boating facilities(Case A-239). Three options were presented, and in August 1992 the Planning Board recommended "Option B" be approved by the Board of Commissioners. The item was scheduled to be heard by County's Board of Commissioners at its September 1992 meeting, but postponed until its October 1992 meeting at which time the Board approved the "Option B" text amendment. 15. The text amendment changed County's Zoning Ordinance definition for Community Boating Facility to include service to "five or more" residential lots and now required a special use permit for such facilities, whereas before the amendment, they were permitted by right. 3 16. A new section, Section 72-37, was added to the Zoning Ordinance and set forth five supplemental regulations for Community Boating Facilities. The amendment also added a definition for Private Residential Boating Facility, defining the use similarly to a Community Boating Facility but to serve less than five residential lots. Private Residential Boating Facilities would now be allowed as a use by right in certain zoning districts. Additional supplemental regulations were also added to the Zoning Ordinance for commercial marinas by the approved text amendment. 17. The amendment did not change the requirement that that "the right to use such facility must be conferred by easement appurtenant to the residential lot it is intended to serve." 18. Rights to use the subject properties were transferred to members of Porters Neck Plantation through its June 1991 Protective Covenants recorded in Book 1555, Page 957 (Amended 2016 in Book 5951,Pages 235-239) declaring each property owner a member of the Porters Neck Plantation Homeowners Association and entitling them to use the streets, utilities, and common areas of Porters Neck Plantation. Rights to use the Lots were conveyed by recorded easements to members of Porters Neck Bishops Park and Creekside homeowners associations. 19. In 1995, Petitioner Porters Neck Quality of Life Association ("QLA") filed a lawsuit against POA to contest POA's use of the Lots as Community Boating Facilities. The case was decided in favor of POA and against QLA, but did not address the issues presently before the court. 20. In 2015, POA submitted an application to the North Carolina Division of Coastal Management for authorization to improve the Lots by adding landscaping, kayak storage racks, and parking space lines to the Lots. County Local Permit Officer, Linda E. Painter, informed the Division of Coastal Management that the County had no objection to the project as proposed by POA, and on October 16, 2015, the Division of Coastal Management issued CAMA permit No. 117-15 to the POA. 21. On November 5,2015, QLA's President, Julia S. Worth, submitted a request for a third party contested case hearing to the Coastal Resources Commission. 4 The request for a third party contested case hearing regarding CAMA Permit No. 117-15 was denied. 22. On December 15, 2015, POA submitted a Building Permit Application to County for Lots 8344 and 8540. Attached to the application was a"NHC Landscaping Plan"which included drawings of the kayak racks that POA proposed to build on the Lots. The Application,Plan and drawings called for two kayak racks on each Lot, each rack with the capacity to hold 9 kayaks. 23. In total, POA sought to build and did build on the Lots kayak racks with the capacity of at least 36 kayaks. The kayaks are available for the use and enjoyment of the approximately 600 residents of homes located in POA. The kayaks are stored on the racks vertically in three layers according to the drawings and photographs in the record. 24. Petitioners argue that the kayaks now located on the dry stack storage racks have attracted additional use of Lots 8344 and 8540 by the approximately 600 residents of homes located in POA, which has increased traffic on Bald Eagle Lane creating hazardous conditions to Pedestrians and vehicles traveling on Bald Eagle Lane. 25. On February 12, 2016, County approved POA's application and issued a building permit. 26. On May 16, 2016, QLA sent a letter to Chris O'Keefe, County's Director of Planning and Inspections("O'Keefe"), regarding "Zoning Violations at 8344 and 8540 Bald Eagle Lane." In this letter, QLA raised issues with respect to CAMA permitting, but also raised additional issues with respect to the County's Zoning Ordinance as applied to 8344 and 8540 Bald Eagle Lane, dry stack storage of boats, landscaping, buffers and commercial activity. 27. The New Hanover County Zoning Ordinances ("County Zoning Ordinances") define certain terms. 28. "Dry Stack Storage"is defined by the County's Zoning Ordinance as: "Vertical storage of boats in a rack system,providing for storage of at least 2 layers of boats." 5 29. `Boat"is defined by the County's Zoning Ordinance as: "A vessel or watercraft of any type or size specifically designed to be self-propelled, whether by engine, sail, oar, or paddle or other means, which is used to travel from place to place by water." 30. "Community Boating Facility" is defined in County's Zoning Ordinance, as: "A private, non-profit boating facility including a dock, pier and/or launching ramp on property having water frontage; the use of which is intended to serve five or more residential lots or residential units. The right to use such a facility must be conferred by an easement appurtenant to the residential lot it is intended to serve. No commercial activities of any kind shall be allowed within the confines of the facility." 31. The language "no commercial activities of any kind shall be allowed within the confines of the facility"was added with the original defmition of Community Boating Facility in 1980,with the same amendment that added a definition for Commercial Marina in County's Zoning Ordinance. The definition of Commercial Marina included language describing commercial activities as "providing marine services, including, but not limited to, retail sales for fuel, repairs, convenient food stuffs, boats, engines, and accessory equipment." 32. In determining whether the rental of the kayak storage spaces is considered a commercial use or not, County's Zoning Staff considered the fact that the opportunity to rent a storage space is limited to residents of the neighborhoods that have rights to use the subject properties, including Porters Neck Plantation, Creekside, and Bishops Park. Secondly, County's Zoning Staff compared the storage space rental to similar noncommercial rental activities in residential settings, such as the rental of a boat slip by residents of a neighborhood that has a community boating facility. Additional similar noncommercial storage rental situations include renting a storage locker at a community pool, or the rental of a banquet room in a community clubhouse. 33. Section 62.1-4 of County's Zoning Ordinance states that the purposes of buffer strips are to buffer adjoining and competing land uses. As such, a 6 non-residential use of land is required to provide a buffer strip along the perimeter of a site that is adjacent to a residential use. However, this section does not require buffers between similar land uses, such as non-residential abutting non-residential, or residential abutting residential. 34. County's Zoning Staff historically considered neighborhood amenities such as pools, club houses, sports facilities, and other recreational or open space amenities that serve a neighborhood to be ancillary residential uses, rather than commercial uses. As such, buffering requirements per Section 62 have not been applied to these types of facilities, including the Lots 8344 and 8540 of Bald Eagle Lane. 35. Other landscaping requirements do apply to the facility at 8540 Bald Eagle Lane, because the Lot has a parking lot. Parking lot perimeter landscaping and streetyard landscaping is required per Section 62.1-5 of County's Zoning Ordinance. County's Zoning Staff requested that an updated landscaping plan be submitted with the building permit application for the landscaping and kayak racks which was submitted in December 2015. 36. County's Zoning Staff approved a waiver request for the parking lot landscaping requirement pursuant to authority granted in Section 62-1-5(3)of County's Zoning Ordinance, and approved the remainder of the landscaping plan as compliant with the applicable landscaping requirements. 37. Accessory structures fall under the definition of"Accessory Building or Use" in County's Zoning Ordinance, as follows: "A use or structure of a 4 nature customarily incidental and subordinate to the principal use or structure." 38. "Buildings and/or structures"are also defined in County's Zoning Ordinance, as follows: "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." 39. The Table of Permitted Uses in County's Zoning Ordinance allows the use by right in B-1, I-1, and I-2 zoning districts if the dry stack storage is a stand- alone warehouse use, and if the dry stack storage is accessory to a marina, the use is permitted by right in the 8-2, I-1, 1-2, PD, and RFMU zoning districts, and by special use permit in the residential districts and the B-1 district. 40. On June 10, 2016, the County issued a final determination letter in response to QLA's May 16, 2016, letter. The County's June 10, 2016, letter specifically stated, "Please consider the clarification provided in this letter as a final determination that can be formally appealed to the County's Zoning Board of Adjustment." 41. In the June 10, 2016, final determination letter, the County determined that: (1) The facilities at 8344 and 8540 Bald Eagle Lane are legal nonconforming Community Boating Facilities as they were established prior to the requirement of obtaining a Special Use Permit; (2) The conveyance of the right to use each facility in the Protective Covenants of Porters Neck Plantation suffices the spirit and intent of the New Hanover County Zoning Ordinance; (3)Each site is considered a residential use for the purposes of landscaping and buffering requirements; (4)The kayak racks on each site are considered accessory structures and not "dry stack storage of boats;" and, (5) The rental of the kayak racks by members of POA is not considered a commercial use. 42. Section 121 of County's Zoning Ordinance states that an appeal from interpretation of the Ordinance may be taken to the Board of Adjustment and the appeal must be filed with the zoning administrator within thirty (30) days of receipt of the decision. 43. On June 30, 2016, QLA filed an appeal of County's determinations and the appeal was heard by the County's Board of Adjustment on August 23, 2016. 44. County's Board of Adjustment issued an Order dated August 23, 2016 denying QLA's appeal and affirming the determinations made by O'Keefe. 8 45. QLA appealed the County Board of Adjustment's Order to this Court. Based on the foregoing facts,the Court makes the following CONCLUSIONS: 1. All parties are properly before the Court. The appeal of the determination(s) of County's Board of Adjustment dated August 23, 2016 is timely, is properly before this Court, and this Court has jurisdiction to consider the Petitioners' Petition. 2. Because Local Permit Officer Painter's June 10, 2015, correspondence with the Coastal Management Division was not a final determination from which Petitioner could have appealed, failure to "appeal" such correspondence does not bar Petitioner's Petition under Section 121 of the County's Zoning Ordinance. 3. The North Carolina Coastal Resources Commission issued a November 16, 2015, Decision that Petitioner is not entitled to a third party hearing for issuance of CAMA permits. While Petitioner's claims are tangentially related to CAMA permitting, the issues before this court center on issues of New Hanover County Zoning Ordinance interpretation as applied to dry stack storage of boats, landscaping, buffers and commercial activity. Consistent with Section 121 of the County's Zoning Ordinance, N.C. Gen. Stat. § 150B and N.C. Gen. Stat. § 160A-393, Petitioners have pursued this contested case in Superior Court after exhausting all administrative remedies, including timely appeal of the County Planning and Inspection Department's June 10, 2016 final determination letter and timely appeal of the New Hanover County Board of Adjustment's August 23,2016 Order in Case/BA-910. Petitioners' claims are not barred due to any alleged failure to exhaust administrative remedies. 4. Petitioners have standing pursuant to N.C. Gen. Stat. § 160A- 393(dX1) and (3). Therefore, Petitioner is not required to establish standing through 4 evidence that they will suffer special damages pursuant to N.C. Gen. Stat. § 160A- 393(dX2). 9 5. Porters Neck Quality of Life Association, Inc. et al challenged the POA's development and use of the Lots as Community Boating Facilities in a 1995 Superior Court case that was resolved in favor of the Porters Neck Homeowners Association, Inc. and Porters Neck Company, Inc. However, the 1995 case did not address the specific issues raised in Petitioner's Petition. Accordingly, Petitioners' claims are not barred by the doctrine of collateral estoppel. 6. When reviewing the decision of such a board,the superior court should: (1) review the record for errors of law; (2) ensure that procedures specified by law in both statute and ordinance are followed; (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4)ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5)ensure that the decision is not arbitrary and capricious. Whiteco Outdoor Adver. v. Johnston County Bd. of Adjustment, 132 N.C. App.465,468(1999). Based on the aforementioned standard,the County's August 23, 2016, Conclusions 1, 2, 3, 4, 5 and 7 are proper. 7. The evidence is sufficient to support the Boards of Adjustment's decision that the Lots in question are legal nonconforming Community Boating Facilities as they were established prior to the requirement of obtaining a Special Use Permit. 8. The evidence is sufficient to support the Boards of Adjustment's decision that rights to use the subject properties were transferred to members of Porters Neck Plantation, Bishops Park, and Creekside homeowners' associations and a few others through the recorded Homeowner's Association covenants and various easements. 9. The evidence is sufficient to support the Board of Adjustment's decision that the uses on the Lots are ancillary residential uses of property for Porters Neck Plantation and, therefore, do not require the buffering which would be required for a non-residential use. 10. The evidence is sufficient to support the Board of Adjustment's decision that the rental of kayaks by members of POA is not a commercial activity regulated in County's Zoning Ordinance definition of a Community Boating Facility. 10 11. In light of the conclusion that evidence is sufficient to support the Board of Adjustment's decisions discussed in the above paragraphs, the undersigned further concludes that the Board of Adjustment's decisions as discussed in the above paragraphs were neither arbitrary nor capricious. 12. Petitioner contends that the Board of Adjustment's decision with respect to storage of kayaks in racks was affected by error of law. Specifically, Petitioner asserts the Board of Adjustment erroneously interpreted the term "boat"such that the kayaks at issue do not meet the definition of"boat"and further that they erroneously interpreted "dry stack storage"such that the storage of kayaks in the racks at issue do not meet the definition of"dry stack storage." 13. Where the petitioner alleges that a board decision is based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been determined. However, one of the functions of a Board of Adjustment is to interpret local zoning ordinances, and this Court's duty is to decide if the board "acted arbitrarily, oppressively, manifestly abused y d its authority, or committed an error of law in interpreting the ordinance. Taylor Home v. City of Charlotte, 116 N.C. App. 188, 193. 447 S.E.2d 438, 442, disc. review denied, 338 N.C. 524 (1994). Whiteco Outdoor Adver. v. Johnston County Bd. of Adjustment, 132 N.C. App. 465, 470 (1999). 14. In construing zoning ordinances, the court is obligated to adhere to fundamental principles of statutory construction. Id. Statutory interpretation begins with the plain meaning of the words of the statute. Where the plain meaning is unclear, legislative intent controls. Sharpe v. Worland, 137 N.C. App. 82, 85 (2000). 15. In Whiteco, the ordinance at issue created an ambiguity because two provisions specifically referred to "initial value"while a third provision referred only to "value" and did not specify either "initial value"or"present value." Because the plain meaning of the provision was unclear and ambiguous, the Whiteco court could not rely solely on plain meaning. Instead, the Whiteco court was forced to look beyond the words of the provision and in so doing gave deference to the county board's interpretation of its own ordinances. The court agreed with the county's interpretation which was arrived at 11 by reading the ambiguous terms in part materia and inferring meaning that was not readily available from a plain reading of the language of the ordinance. 16. Where the plain meaning of the statute is clear, however, no further analysis is required. Sharpe, at 85. The case at bar is distinguishable from Whiteco in that the plain meaning of the ordinance at issue before this Court is clear. Therefore, adhering to the fundamentals of statutory interpretation, this Court need not look outside the plain meaning of the County's ordinance and need not rely on the County's interpretation of the ordinance. 17. Turning to the words of the ordinance, the definition of the term "boat" is very inclusive as to the types of vessels or watercraft that qualify as "boats." The ordinance defines a"boat"as: "A vessel or watercraft of any type or size specifically designed to be self-propelled, whether by engine, sail, oar or paddle or other means, which is used to travel from place to place by water."(Emphasis added.) Respondents argue that a kayak does not qualify as a "boat" because it is "human-propelled"and not "self-propelled". However, nothing in the wording of the ordinance's definition of "boat"disqualifies human propulsion as the means of a kayak's self-propulsion. Quite the opposite, the ordinance's definition of"boat"specifically includes propulsion by oar or paddle. Since oars and paddles are customarily powered by humans, the language of the ordinance logically includes human-propelled watercraft within the ordinance's definition of"boat." 18. Likewise, nothing in the common dictionary definitions of"Self- Propelled" or"Self-Propulsion"(as found in the New Webster's Collegiate Dictionary supplied by Respondent)disqualifies human propulsion as a means of self-propulsion. "Self-Propelled" is defined as: "Containing within itself the means for its own propulsion; and"Self-Propulsion" is defined as: "Propulsion by one's own power." A kayaker sits within a kayak and propels the craft across the water with her own power via a paddle. 19. The operative distinction is not whether a boat is "human- propelled." Instead, the operative distinction is whether there is a means of propulsion 12 contained within the vessel or craft. The means of the kayak's propulsion(the human paddler) is contained within the kayak,just as the means of a row boat's propulsion(the human rower)is contained within the row boat, and the means of a ski boat's propulsion (the engine) is contained within the ski boat and the means of a sail boat's propulsion(the sail)is contained within the sail boat. These are all examples of self-propelled watercraft, and all examples of watercraft that meet the ordinance's definition of"boat." Watercraft that are not self-propelled, on the other hand, are not"boats"under the ordinance. A barge, for example, is a vessel that does not have a means of propulsion. Barges require an external source of propulsion(usually a tugboat or similar craft)to propel them from place to place across the water. A barge is not designed to be "self-propelled"and, therefore, does not fall within the ordinance's definition of"boat." Therefore, for the reasons set forth above and by the plain meaning of the ordinance, a kayak qualifies as a "boat"under the ordinance. 20. "Dry Stack Storage" is defined by the County's Zoning Ordinance as: "Vertical storage of boats in a rack system,providing for storage of at least 2 layers of boats." As demonstrated by photographs and drawings of the racks, the kayak racks on the subject property vertically store kayaks, which are boats, in three layers. There is capacity for at least 36 kayaks to be stored on these racks. Accordingly, by the plain meaning of the ordinance, POA's storage of the kayaks on the racks on the subject property meets the definition of"dry stack storage", and said racks are not allowed on the subject Lots under the ordinance. 21. This Court concludes that the County committed an error of law in concluding that the kayak racks on the subject properties are not"the dry stack storage of boats"under the ordinance. Accordingly, the County's August 23, 2016, Conclusion 6 is reversed. Based on the foregoing, it is HEREBY ORDERED,ADJUDGED and DECREED that the decision of the New Hanover County Board of Adjustment is affirmed in part and reversed in part, and this matter is remanded to the Board of 13 Adjustment with instructions that the Board enter a decision denying Respondent's December 15, 2015 Application as it pertains to kayak storage racks. This the 3 day of August,2017. 641-%(//*/ The Honorable Andrew Heath Superior Court Judge 14 • NEW HANOVER COUNTY 00014�! • 41`7 .4'' INSPECTION SERVICES COUNTY ADMINISTRATION BUILDING ANNEX • 414 Chestnut Street, Room 203 fir; Wilmington, North Carolina 28401 Phone(919)341-7118 Zoning Division ",.. January 26, 1993 Mr. Richard Donaldson Porters Neck Company, Inc. 202 Lafayette Street Wilmington, N.C. 28405 RE: Porters Neck Plantation, Building Permits 4 B-41188 and B-41189, Issued August 18, 1992 Dear Richard: This will confirm and supplement our recent conversation concerning the two community boating facility sites on Bald Eagle Lane. We discussed the fact that construction has not yet started on either pier, and that a gravel parking lot and boat ramp have been constructed at the northern site. We also discussed the need for County-required landscaping to be installed as soon as practicable, but recognized the fact that several issues need to be resolved before this can happen - notably, changes in a drainage swale, possible removal of an adjacent house through one of these properties, and possible lengthening of the boat ramp. I reminded you that the building permits for the piers need to be in an active status when construction is started. What I did not touch on is the fact that the Zoning Ordinance was changed in October 1992, and that these two rojects became non-co fo ng ro ec (Ordinance ction -1 . Eac is sidered a ommunity Boating Facility, "intended to serve five or more residential lots or residential units" (Ordinance Section 23-62) . The significant change is the fact that such facilities nc�o require a pecial usg permit, �--�- - / V I 000147 Mr. Richard Donaldson January 26, 1993 Page Two For your two non-conforming projects, this means that your two building permits must be kept in an active status, as they cannot be renewed or extended without a special use permit. - -. _ __wor _nn_. bulk _viers must coamacnoe within c,v months of the permits' issuance, that --1993-. -Some work- - - must then take place within every twelve-month period to keep the permits in force. I refer you to Ordinance Section 103 for the precise language concerning expiration of permits. Please let me know if you have any questions. Very truly yours, (LA, Ann S. Hines Chief Zoning Enforcement Officer ASH:sb-h Enclosures: cited ordinance sections cc: S.D. Conklin, Inspection Director AgWitAaveir, Assistant County Manager • (45 (2) The existing or proposed water and sewage disposal system is approved by the New Hanover County Environmental Health Department or the Cape Fear Public Utility Authority,whichever applies. (5/4/09) 42-2: Non-Conforming Vacant Contiguous Lots of Record—This section applies when two or more adjoining lots of record(one of which is vacant)containing less than 100 feet in total width and less than 20,000 square feet in total area held in identical ownership at any time after the adoption of this ordinance,such lots shall be deemed to be combined into a lot or lots which meet the minimum requirements of this ordinance for the zoning district in which such lots are located. (5/4/09) Section 43:Completion of Non-Conforming Projects 43-1: The construction or erection of any non-conforming project may be completed provided: (1) All construction is done pursuant to a validly issued building permit. (9/7/76) Section 44:Extension or Enlargement of Non-Conforming Situations 44-1: Except as specifically provided in this section,it shall be unlawful for any person to engage in any activity that causes an increase in the extent of non-conformity of a non- conforming situation. 44-1.1: The standards outlined in Sections 53.2 and 53.3 of this ordinance and any requirement for a special use permit shall apply to all new proposals in I-1 and 1-2 districts as shown on the Table of Permitted Uses.Any existing industrial uses which did not require a special use permit as of the day prior to the date of adoption of this section would be considered a conforming use and shall not require a special use permit in order to continue operations. The term"existing industrial uses"shall mean industries in active operation and open for business on a tax parcel zoned I-1 or 1-2 and developed for that particular use as of the day prior to the date of adoption of this section. 44-1.1.1: Modifications and/or Expansions of Existing Industrial Uses: For modifications and/or expansions of existing industrial uses whose site conditions were in conformity with the requirements of this ordinance as of the day prior to the date of adoption, the following conditions must be met. If these conditions are not met, or if the existing industrial use is classified within the Intensive Manufacturing category, and the modification and/or expansion change the particular use within that category, a special use permit will be required for the modification and/or expansion. A. Modifications and/or Expansions on the Same Parcel: Modifications and/or expansions of existing industrial uses shall be allowed if fully contained on the tax parcel currently developed for and operating as such use and provided the following: 1. If the expansion and/or modification is for the same existing industrial use that was in active operation and open for business as of the day prior to the date of adoption of this section. 4 New Hanover County Zoning Ordinance Page 28 44-5: Physical alteration of structures or the placement of new structures on open land are unlawful if they result in: (1) An increase in the total amount of space devoted to a non-conforming use;or (2) Greater non-conformity with respect to dimensional restrictions such as yard requirements, height limitations,or density requirements. 44-6: Minor repairs to and routine maintenance of property where non-conforming situations exist are permitted and encouraged. 44-7: Notwithstanding paragraph 44-5,any structure used for single family residential purposes and maintained as a non-conforming use or structure may be enlarged or replaced with a similar structure of a larger size, so long as the enlargement or replacement does not create new non-conformities or increase the extent of existing non-conformities with respect to yard size and setback requirements. In particular, a mobile home may be replaced with a larger mobile home, and a "single-wide" mobile home may be replaced with a "double-wide". This paragraph is subject to the limitations stated in Section 46 - Abandonment and Discontinuance of Non-Conforming Situations. 44-8: A structure that is non-conforming in any respect or a structure that is used in a non- conforming manner may be reconstructed or replaced if partially or totally destroyed, subject to the following restrictions: (1) A letter of intent is received by the Director of Planning and Land Use within six (6) months from the time of such destruction. (2) A building permit is obtained from the Building Safety Department within one(1) year from the time the damage or destruction took place. (3) The total amount of space devoted to a non-conforming use may not be increased, except that a larger, single family residential structure may be constructed in place of a smaller one and a larger mobile home intended for residential use may replace a smaller one. (4) The reconstructed building may not be more non-conforming with respect to dimensional restrictions such as yard requirements, height limitations or density requirements,and such dimensional non-conformities must be eliminated if that can reasonably be accomplished without unduly burdening the reconstruction process or limiting the right to continue the non-conforming use of such building. (9/7/76) Section 45:Change in Kind of Non-Conforming Use 45-1: A non-conforming use may be changed to a conforming use.Thereafter,the property may not revert to a non-conforming use. 45-2: A non-conforming use may be changed to another non-conforming use only in accordance with approval issued by the Board of Adjustment.The Board shall issue such approval if it finds that the proposed use will be more compatible with the surrounding New Hanover County Zoning Ordinance Page 30 KURT B.FRYAR._ATTORNEY AT LAW 106 N.WATER STREET,SUITE 110 WILMINGTON,NC 28401 TELEPHONE:(910)763-8350 FACSIMILE:(910)763-8351 fryarlaw @bellsouth.net August 31, 2020 The Honorable New Hanover County Commissioners c/o Kym Crowell, Clerk to the Board 230 Government Center Drive, Suite 175 Wilmington, NC 28403 Re: Proposed Text Amendment to Zoning Ordinance TA 20-01 Dear Commissioners: I write to you as attorney for Porters Neck Quality of Life Association, a non-profit corporation created to protect the interests of the residential community located on Bald Eagle Lane. Porters Neck Quality of Life Association(hereinafter, "PNQLA") opposes the proposed amendment to the definition of"Boat"and the addition of the provision for"Small Watercraft Storage." In 2017, PNQLA was successful in a court case that involved the placement and subsequent removal of kayak storage racks on two lots located on Bald Eagle Lane. The two lots are designated as Lot 11-A and Lot 35-A on the plat recorded in Map Book 5, Page 23, of the New Hanover County Registry, and have the street addresses of 8344 and 8540 Bald Eagle Lane. Those two lots were originally platted and have residential restrictions to benefit the community on Bald Eagle Lane. However, those two lots are owned by and are being used as common area for a completely different neighborhood, a Golf-Course Community to the Northwest of Bald Eagle Lane. Those two lots are non-conforming R-20S. In 2016, the Golf-Course Community placed kayak storage racks on the two lots, but as stated earlier, PNQLA was successful having the Court Order that the placement of the storage racks violated New Hanover County's Zoning Ordinance. This purpose of this zoning amendment (TA 20-01) is to overturn the 2017 Court Order. That is not a proper purpose for a zoning amendment because it does not affect the community as a whole. The County, if it adopts these two text amendments, will not be acting in a legislative capacity. The County will be acting in a quasi-judicial capacity. And, that is not lawful. The County lacks the authority to amend the Zoning Ordinance for a quasi-judicial purpose. 4 These amendments deal with boat storage. New Hanover County's Comprehensive Plan does not mention boat storage. The Comprehensive Plan does mention public access to water. However, these two amendments only deal with boat storage. The two amendments do not improve the public's access to water. These two amendments call for the placement of kayak storage racks on private property to benefit a private gated community. And, as explained earlier, the two lots are not located within the gated community. The lots are located on Bald Eagle Lane. 1 Furthermore, the Planning Board told the Planning Staff to find a way to preserve the protections won in the 2017 court case. If that is the case, dry-stack storage of boats, including chops should not be allowed at the two lots. PNQLA does not believe this amendment will preserve ka20ks, Court Order. p e the 2017 If this amendment is passed, PNQLA certainly would like a requirement that "The addition of a small watercraft storage structure to a nonconforming use shall require a special use permit." But sentence of the proposed amendment is in direct conflict with other sections of the Ordinance, specifically Article IV, §§ 44-1 and 44-5. Sections 44-1 and 44-5 would prohibit the addition of small watercraft storage to non-conforming lots because it would increase the total amount of space devoted to non-conforming uses and would increase the extent of non-conforming situations. The proposed Amendments are also troubling because although the 2017 Order says that Lot 11- A(8344 Bald Eagle Lane)is a non-conforming boating facility, that is not the case. Lot 11-A has been used as a boating facility. A permit was granted to construct a boating facility on that lot in 1992, but it was never acted upon and that permit expired over 20 years ago. in 1992, The following documents are attached: 1. Map Book 5, Page 23; 2. Restrictions recorded in Book 464, Page 419; 3. The Superior Court Order Entered August 9, 2017; and 4. January 26, 1993 Letter to Porters Neck Company. Lots 11-A and 35-A are used by approximately 600 homes in the Golf Course Communit y and their guests. Those residents travel on Bald Eagle Lane to access the lots. Currently the usage of the lots increases noise pollution on Bald Eagle Lane,increases vehicular traffic on Bald Eagle Lane o land on Bald Eagle Lane, and unduly congests Bald Eagle Lane. If kayak storage racks are allowed ed on either of these lots,it will exacerbate these problems. llow on PNQLA requests that you leave the definition of the term boat as it is currently written and you do not add the provision for Small Watercraft Storage in the text amendment. Overturning that 017 L Court Order is not a proper reason to amend the Zoning Ordinance. In the alternative PN the 2017 the following: QA requests a. In Table 4.4.3, Change P to S in the R-20S column in the row for "Small and Watercraft Storage"; b. Change Section 4.4.4 I as follows: I. Structures, such as kayak racks, for the storage of small watercraft are allowed in all zoni ng districts, except in R-20S where they are required to have a special use permit. In all zoning districts, said structures shall only be allowed as accessory uses. In Community Boating Facilities and Outdoor Recreational Establishments, said structures shall only be allowed uses provided that d as as 1. Structures shall be reviewed for compliance with building code and applicable regulations. pp able floodplain 2 A S 2. 'When personal watercraft are not stored in an enclosed structure, all watercraft shall be required to be tied-down or removed during hurricane emergency events. 3. No structure, including stored watercraft, shall encroach into any required setbacks or easements. 4. For all Outdoor Recreational Establishments, and for Community Boating Facilities not directly abutting the residential lots or units served by the facility,one automobile parking space, in addition to existing approved spaces, shall be required for every 4 storage rack slots or fraction thereof. Bicycle parking spaces may be provided in lieu of up to two automobile parking spaces at the rate of 1 space for every storage slot. This requirement may be amended as part of an approved special use permit or subject to a parking study if authorized by Section 5.1 of this Ordinance when the principal use is permitted by- right. 5. The addition of a small watercraft storage structure to a nonconforming use shall require a special use permit to cover all nonconforming aspects of the use. Yours Truly, /4/0i4<fli; Kurt B ryar cc: Sharon Huffman, New Hanover County Attorney 3 R:Y'J`3�..a - eWSk,4` r'a_" '1 s.ra.xb. .,c.- - mow, ^.-.a-.-.� .. :i.„ T�•!.• f 5 I. y1['' t• 5 R,i� S f n.Yti . yji s�.,,„-1..p*- f 4]-' Tt .,r.:i-a� S•• « �X' y.*� �y��..yy r�' � �� Ct„ � f � �s /r • � ?�alj2 r �ty :f.y.'�'� �:, �}, N ; R E ..fas. _ / r - - 7 I�i i Qt - - V sf1..fir• •; . • , 1 J � � •:�O x11 �:'. �3. 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B ' � 1,..... ya S?:• si-Z ' s , b j I - S t t S I r✓J . II 419----------- -_ _.___-_. .___ STATE OF NORTH C AROLINA __-- -- _— COUNTY OF NEWHANOVER L41' I Reba D.Johnson a notary public in and for the State and county aforesaid, do hereby asrtlfy that personally appeared before me this day Elisabeth Gurganous and Jesse Gurganous her husband, and each acknowledged the due execution of the foregoing and annexed Instrumnt, for the purposes therein expressed. Witness my hand and seal, this the 19 day of June, 1950 Reba D.Johnson (notarial seal) Notary Public My commission expires 6/24/50 STATE OF NORTH CAROLINA NEW HANOVER COUNTY The foregoing certificate of Reba D. Johnson, notary public of New Hanover County is adjudged to be correct. Let the instrument with the certificates be recorded.This the 19 day of June, 1950 Margaret Yarnell DeVane,Asst Clerk Superior Court Received and recorded June 19, 1950 at 5-0 0/d0 and lv/e . �rified Register of Deeds j R.B. DAVIS ET AL STATE OF NORTH CAROLINA, NEW HANOVER COUNTY • KNOW ALL MEN BY THESE PRESENTS That R.B. Davis, Bessie DECLARATION OF RESTRICTIONS: G. Darden, C.McD. Davis and Mildred D. Adamq, did on the 16th day of July 1946 convey to George L. Gain, Trustee, u the hereinafter described real property andndid authorise the said George L. ain, Trustee, to execute any instrument in writing, convey, mortga otherwise encumber said lands or premises or any of the same provided that any two of th or the cestui qua truetents named in said instrument evidence their consent to said mortgage or other conveyance by joining in the execution of any such deed deed of trust, mortgage or other conveyance which deed is recorded in the Office of the Register of Deeds of New Hanover County in Book 390, at Page 31. That under and by virtue of the powers vested in George L. Cain by the deed herein- above referred to by and with the consent of any two of the grantors therein, the said George L. Cain, Trustee, Bessie C. Darden and R.B. Davis do hereby covenant and agree to and with all persona, firms and corporations now owning or hereafter acquiring iota in the development hereto- after described, that all of the lots shown upon the map of that certain subdivision known and designated as Porter's Neck Plantation, Sections B. and C. which map was prepared by J.A. Loughlin C.E..and dated August 1949 and which map is recorded in the Office of the Register of I/ % Deeds of New Hanover County in Map Book 5, at Page 23, and which lots are now owned by R.B. Levis Bessie C. Darden, C.McD Davie and Mildred D Adams are hereby subjected to the following restric- tions as to the use thereof; running with said properties by whomsoever owned to-wit: 1. Eaih lot in the aforesaid subdivision is to be used for residential purposes only and may not be used for commercial purposes and nomstructure shall be erected, placed or permitted to remain on any lot to be used for anypurpose other than residential purposes, except garageaaenecessary out buildings for the proper enjoyment of this property, for residential • 2. No dwelling or any structure shall be located nearer any side line than ten percent i of the width of said lot on which said dwelling or structure is located. 3. No•ooxious and offensive trade or activity shall be carried on or maintained on any ' lo lot boroa annoyance part an f any lot, not shall any use be made of any portion of said property which may be yance and nuisance to the neighborhood. 4. N No trailer or tent shall at any time be used as a residence on said property. 5. • No:dwelling shall be erected on any of the lots contained on the map herein referred to which shall cost less than Six Thousand, Five Hundred (56,500.00) Dollars at the time of con- etructioa_apd_no dwelling can be constructed or erected on any of the lots on the map herein referred tai..; .1.1 the builder shall have submitted this plane to George L. Cain or the than act tee under deed recorded in Book 390 at Page person by said must approve ge before or to some person designated Provided' ",,'. ppprove said puns and spscificatioas before building operations start. • - r, that,thia restriction may be changed of amended as hereinafter provided. h" 6. cal be latil such time as municipal sewerage system is available sewerage disposal shall 7 byfptic tanks which meets the approval of the North arolina State Beard of Health. 7. corporati d i� portion of this property be taken into or incorporated in a municipal governed by a governing body in which the residents take part in the exaction tbi governing body, then and in that event, said power to tea building restriction for said w governing body shall have the be erected. reon at a cost less than Six Thousand rFivebHun edo($6,500.000)lDollars. • 8. - T e a banante are to run with the land and shall be binding on persons el coder them until June lat. 1975, at which time said co eo automatioalty extended for successive periods of ben years unless by vo 420 then owners of the lots is is agreed to change, said cotenants in whole or in part. 9. If the parties hereunto or any of them or their heirs or assigns shall violate any of the covenants herein, it shall be lawful for anynother person or persons owning any real property situated in said development or subdivision to prosecute any proceeding at law or in equity against the person or persons violating or attefpting to violate any such covenant and to prevent him or them from do doing. 10. Invalidation of any one of these covenants or shall in no wise affect any of the other provisions whi ht shall aremain'infull force and oeff ct IN TESTIMONY WHEREOF, the said George L. Cain, Trustee, R.B. Davis and Bessie C. Dar en, have hereunto set their hands and affixed their seals the 23rd day of June 1950. George L. Bain SEAL) R.B. Davis SEAL) II STATE OF NORTH CAROLINA, Bessie C. harden SEAL) COUNTY OF NEW HANOVER. I, P.W. Killian a Notary Public in add for the State and County aforesaid, do hereb' certify that George L. Lain, Trustee, personally appeared before me this day and acknowledge, the due execution of the foregoing and annexed instrument for the purposes therein expressed Witness my hand and seal thus the 24th day of June 1950. i (Notarial Seal) P.W. Killian, Notary Public. My con expires Feb 25, 1952. STATE OF NORTH CAROLINA, COUNTY OF NEW HANOVER. I. W D Hughes, a Notary Public in and for the State and County aforesaid do hereby i certify that Bessie C. arden, personally appeared before me this day and acknowledged the 1 due execution of the foregoing and annexed instrument for the purposes therein expressed. Witness my hand and seal this the 29th day of June 1950. I. ry (Notarial seal) W2D. Hughes, Notary Public. ++� My com expires 9-10-1950 I STATE OF NORTH CAROLINA, COUNTY OF HALIFAI I, harold S. Vick a Notary Public in and for the State and County aforesaid, do hereby certify that R.H' Davis, personally appeared before me this day and acknowledged the 1 due execution of the foregoing and annexed instrument for the purposes therein expressed. Witness my hand and seal this the 23rd day of June 1950. (Notarial Seal) Harold S. Vick, Notary Public. R • My commission expires May 29 1952. STATE OF NORTH CAROLINA, NEW HANOVER COUNTY. II The Foregoing Certificates of P.W. Killian and W.D. I Hanover County and Harold S. Vick a Notary Public of Halifax Co ntyNare djidged ito obe�r corre ew Let the instrument with the Certificates be recorded. This the 29th day of June 1950. Elora C. Gore, Deputy hh? Received and recorded the 29th day of June Clerk of Superior Court. 1950 at 3-15 P.M. and verified.. xeg star o weeds. H. E. PHILLIPS, TR , et al : STATE OF NORTH CAROLINA TO s COUNTY OF NEW HANOVER JOSEPH E. JOHNSON,ET UX : THIS DEED MADE this June 10, 1950 by and RELEASE DEED s between H.E. Phillips, Trustee, and B. E. Bryan,both of the first of the County of Wayne, State of North Carolina, parti a part, and Joseph E.Johnson and wife, Annie L. Johnson, of the County of New Hano er State of NorthCarolina, parties of the second part; :: W I T N E S S E T Hs I. WHEREAS, to secure an indebtedness due to B. E. Bryan, Joseph E. Johnson and wife, Annie L Johnson, executed and delivered to H.E. Phillips, Trustee, a deed of trust which is recorded in book 424 page 485, of New HanoverCounty,Registry, upon the lands and premises in said deed of trust conveyed and described, including among othe lands, the lands and premises hereinafter described and conveyed; and WHEREAS, H.E. Phillips, Trustee, and B. E. Bryan execute these presents onl for the purpose of releasing and discharging the lands and premises herein described and cony yed from the lien of said Deed of Trust but in all other respects said Deed of Trust and the not and indebtedness shall continue in full forde and effect. M !1 STATE OF NORTH CAROLINA Fit l` THE ENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF NEW HANOVER ,, FILE NO. 16-CVS-3791 PORTERS NECK QUALITY 0.R_ : �;,F).*:? , ASSOCIATION, CARL SAMET and r� �; wife,LESLIE SAMET, Petitioners ) v. ) ORDER NEW HANOVER COUNTY and ) ) PORTERS NECK HOMEOWNERS )ASSOCIATION, INC., ) Respondents ) k Kt:;atty: �GeirSci UUo�'f t5R j C?u OtCFG'ai�;##44 rCS s r This cause coming to be heard and being heard by the undersigned Superior Court Judge presiding at the May 1, 2017, session of Civil Superior Court in New Hanover County,upon Petitioners'Appeal pursuant to N.C. Gen. Stat. § 160A-393. Petitioner Petitions this Court to reverse an August 23, 2016, Order of the New Hanover County Board of Adjustment in case number ZBA-910. The Court has reviewed the entire Record and the transcripts of the hearings before the New Hanover County Board of Adjustment. The Court held a hearing in New Hanover Superior Court on May 3, 2017, and heard from Kurt Fryar, Counsel for Petitioner; Eric Remington, Counsel for Respondent Porters Neck Homeowners Association, Inc. ("POA"); and, Sharon Huffman, Counsel for Respondent New Hanover County("County"). The Court has also reviewed the briefs, case law and other legal authority. Based on that review, for the reasons set forth below, the Court hereby makes the following FINDINGS OF FACT: 1. POA owns two waterfront lots which are located at 8344 and 8540 Bald Eagle Lane, New Hanover County, North Carolina(the "Lots"). POA uses the Lots as Community Boating Facilities. 2. The Lots were recorded in Section B of Porters Neck Plantation in Map Book 5, Page 23 of the New Hanover County Register of Deeds in June 1950. The Lots have been historically used for pedestrian and boat access to the water by holders of easements of ingress and egress to the Lots. 3. Title to the Lots was retained by Champion McDowell Davis, one of the four original owners of Porters Neck Plantation, until his death and then was conveyed to the trustees of the Champion McDowell Davis Charitable Foundation. 4. In 1988, the Porters Neck Company, Inc., acquired the Lots subject to existing easements of ingress and egress. Porters Neck Company also acquired additional real estate of approximately 800 acres with the intention to develop a golf course community whose residents would be permitted to utilize the Lots for boating related activities. A Master Plan for Porters Neck Plantation was approved in May 1989 by the New Hanover County Planning Board, and included the Lots as common open space areas to serve the Porters Neck Plantation community. 5. POA was created in connection with the golf course community development and took ownership of the Lots from Porters Neck Company in November 1992 through a deed recorded at Book 1629, Page 1359. The right to use the Lots was conveyed to residents of Porters Neck Plantation through the Protective Covenants of Porters Neck Plantation, dated June 13, 1991 and recorded at Book 1555, Page 0957. 6. Easements to use the Lots were conveyed to residents of Porters Neck Creekside Homeowners Association, Inc., in November 2000(Book 2854, Page 450)and to Porters Neck Bishops Park Home Owners Association, Inc., in September 2002 (Book 3430, Page 706). Both Creekside and Bishops Park were developed by Porters Neck Company. Additionally, some property owners along the west side of Bald Eagle Lane in Porters Neck Plantation Section E also have easements to use the subject properties. 7. PNQLA is an association organized to protect and foster the interest of the area subject to this case in and around Bald Eagle Lane and certain areas of Futch Creek Road. Petitioners Carl Samet and wife,Leslie Samet are the owners of Lot 10, 2 Section E.Porters Neck Plantation. That piece of real property has a street address of 8337 Bald Eagle Lane, Wilmington, NC 28411. 8. The Samets own an easement over lot 8344 Bald Eagle Lane. 9. The Samets are members of PNQLA. 10. The Samets and other lot owners on bald Eagle Lane have an interest in 8344 and 8540 Bald Eagle Lane by virtue of the Declarations and Restrictions recorded in Book 464, Page 419, of the New Hanover County Registry. 11. Lot 11-A and 35-A of Section B Porter's Neck Plantation are shown and delineated on a Map entitled"Sections B &C Porter's Neck Plantation"recorded in 1950 Map Book 5 at Page 23 of the New Hanover County Registry. Those lots bear the addresses of 8344 and 8540 Bald Eagle Lane, respectively. 12. The lots depicted in Map book 5 at Page 23 of the New Hanover County Registry are within an R-20S Residential District. 13. In August 1992, POA was issued a CAMA major development permit for improvements to the subject properties, including a driveway, small parking area, fixed dock, and a floating dock on 8344 Bald Eagle Lane, and all of the above improvements plus a boat ramp and gazebo at 8540 Bald Eagle Lane. 14. The definition for Community Boating Facility was originally added to County's Zoning Ordinance in July 1980 (Case A-37). In July 1992, County's Planning Board first heard options presented by staff for revisions to the Zoning Ordinance pertaining to boating facilities(Case A-239). Three options were presented, and in August 1992 the Planning Board recommended "Option B" be approved by the Board of Commissioners. The item was scheduled to be heard by County's Board of Commissioners at its September 1992 meeting, but postponed until its October 1992 meeting at which time the Board approved the "Option B" text amendment. 15. The text amendment changed County's Zoning Ordinance definition for Community Boating Facility to include service to "five or more" residential lots and now required a special use permit for such facilities,whereas before the amendment, they were permitted by right. 3 16. A new section, Section 72-37, was added to the Zoning Ordinance and set forth five supplemental regulations for Community Boating Facilities. The amendment also added a definition for Private Residential Boating Facility, defining the use similarly to a Community Boating Facility but to serve less than five residential lots. Private Residential Boating Facilities would now be allowed as a use by right in certain zoning districts. Additional supplemental regulations were also added to the Zoning Ordinance for commercial marinas by the approved text amendment. 17. The amendment did not change the requirement that that "the right to use such facility must be conferred by easement appurtenant to the residential lot it is intended to serve." 18. Rights to use the subject properties were transferred to members of Porters Neck Plantation through its June 1991 Protective Covenants recorded in Book 1555, Page 957(Amended 2016 in Book 5951, Pages 235-239) declaring each property owner a member of the Porters Neck Plantation Homeowners Association and entitling them to use the streets, utilities, and common areas of Porters Neck Plantation. Rights to use the Lots were conveyed by recorded easements to members of Porters Neck Bishops Park and Creekside homeowners associations. 19. In 1995, Petitioner Porters Neck Quality of Life Association ("QLA")filed a lawsuit against POA to contest POA's use of the Lots as Community Boating Facilities. The case was decided in favor of POA and against QLA, but did not address the issues presently before the court. 20. In 2015, POA submitted an application to the North Carolina Division of Coastal Management for authorization to improve the Lots by adding landscaping, kayak storage racks, and parking space lines to the Lots. County Local Permit Officer,Linda E. Painter,informed the Division of Coastal Management that the County had no objection to the project as proposed by POA, and on October 16, 2015, the Division of Coastal Management issued CAMA permit No. 117-15 to the POA. 21. On November 5,2015, QLA's President, Julia S. Worth, submitted a request for a third party contested case hearing to the Coastal Resources Commission. 4 The request for a third party contested case hearing regarding CAMA Permit No. 117-15 was denied. 22. On December 15, 2015,POA submitted a Building Permit Application to County for Lots 8344 and 8540. Attached to the application was a"NHC Landscaping Plan"which included drawings of the kayak racks that POA proposed to build on the Lots. The Application,Plan and drawings called for two kayak racks on each Lot, each rack with the capacity to hold 9 kayaks. 23. In total,POA sought to build and did build on the Lots kayak racks with the capacity of at least 36 kayaks. The kayaks are available for the use and enjoyment of the approximately 600 residents of homes located in POA. The kayaks are stored on the racks vertically in three layers according to the drawings and photographs in the record. 24. Petitioners argue that the kayaks now located on the dry stack storage racks have attracted additional use of Lots 8344 and 8540 by the approximately 600 residents of homes located in POA, which has increased traffic on Bald Eagle Lane creating hazardous conditions to Pedestrians and vehicles traveling on Bald Eagle Lane. 25. On February 12, 2016, County approved POA's application and issued a building permit. 26. On May 16, 2016, QLA sent a letter to Chris O'Keefe, County's Director of Planning and Inspections("O'Keefe"), regarding "Zoning Violations at 8344 and 8540 Bald Eagle Lane." In this letter, QLA raised issues with respect to CAMA permitting, but also raised additional issues with respect to the County's Zoning Ordinance as applied to 8344 and 8540 Bald Eagle Lane, dry stack storage of boats, landscaping, buffers and commercial activity. 27. The New Hanover County Zoning Ordinances ("County Zoning Ordinances") define certain terms. 28. "Dry Stack Storage"is defined by the County's Zoning Ordinance as: "Vertical storage of boats in a rack system,providing for storage of at least 2 layers of boats." 5 29. `Boat"is defined by the County's Zoning Ordinance as: "A vessel or watercraft of any type or size specifically designed to be self-propelled, whether by engine, sail, oar, or paddle or other means, which is used to travel from place to place by water." 30. "Community Boating Facility" is defined in County's Zoning Ordinance, as: "A private, non-profit boating facility including a dock,pier and/or launching ramp on property having water frontage; the use of which is intended to serve five or more residential lots or residential units. The right to use such a facility must be conferred by an easement appurtenant to the residential lot it is intended to serve. No commercial activities of any kind shall be allowed within the confines of the facility." 31. The language "no commercial activities of any kind shall be allowed within the confines of the facility" was added with the original definition of Community Boating Facility in 1980,with the same amendment that added a definition for Commercial Marina in County's Zoning Ordinance. The definition of Commercial Marina included language describing commercial activities as "providing marine services, including, but not limited to, retail sales for fuel, repairs, convenient food stuffs, boats, engines, and accessory equipment." 32. In determining whether the rental of the kayak storage spaces is considered a commercial use or not, County's Zoning Staff considered the fact that the opportunity to rent a storage space is limited to residents of the neighborhoods that have rights to use the subject properties, including Porters Neck Plantation, Creekside, and Bishops Park. Secondly, County's Zoning Staff compared the storage space rental to similar noncommercial rental activities in residential settings, such as the rental of a boat slip by residents of a neighborhood that has a community boating facility. Additional similar noncommercial storage rental situations include renting a storage locker at a community pool, or the rental of a banquet room in a community clubhouse. 33. Section 62.1-4 of County's Zoning Ordinance states that the purposes of buffer strips are to buffer adjoining and competing land uses. As such, a 6 non-residential use of land is required to provide a buffer strip along the perimeter of a site that is adjacent to a residential use. However, this section does not require buffers between similar land uses, such as non-residential abutting non-residential, or residential abutting residential. 34. County's Zoning Staff historically considered neighborhood amenities such as pools,club houses, sports facilities, and other recreational or open space amenities that serve a neighborhood to be ancillary residential uses, rather than commercial uses. As such, buffering requirements per Section 62 have not been applied to these types of facilities, including the Lots 8344 and 8540 of Bald Eagle Lane. 35. Other landscaping requirements do apply to the facility at 8540 Bald Eagle Lane, because the Lot has a parking lot. Parking lot perimeter landscaping and streetyard landscaping is required per Section 62.1-5 of County's Zoning Ordinance. County's Zoning Staff requested that an updated landscaping plan be submitted with the building permit application for the landscaping and kayak racks which was submitted in December 2015. 36. County's Zoning Staff approved a waiver request for the parking lot landscaping requirement pursuant to authority granted in Section 62-1-5(3)of County's Zoning Ordinance, and approved the remainder of the landscaping plan as compliant with the applicable landscaping requirements. 37. Accessory structures fall under the definition of"Accessory Building or Use" in County's Zoning Ordinance, as follows: "A use or structure of a nature customarily incidental and subordinate to the principal use or structure." 38. "Buildings and/or structures"are also defined in County's Zoning Ordinance, as follows: "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." 39. The Table of Permitted Uses in County's Zoning Ordinance allows the use by right in B-1, I-1, and I-2 zoning districts if the dry stack storage is a stand- alone warehouse use, and if the dry stack storage is accessory to a marina, the use is permitted by right in the B-2, I-1, I-2, PD, and RFMU zoning districts, and by special use permit in the residential districts and the B-1 district. 40. On June 10, 2016, the County issued a final determination letter in response to QLA's May 16, 2016, letter. The County's June 10, 2016, letter specifically stated, "Please consider the clarification provided in this letter as a final determination that can be formally appealed to the County's Zoning Board of Adjustment." 41. In the June 10, 2016, final determination letter, the County determined that: (1) The facilities at 8344 and 8540 Bald Eagle Lane are legal nonconforming Community Boating Facilities as they were established prior to the requirement of obtaining a Special Use Permit; (2) The conveyance of the right to use each facility in the Protective Covenants of Porters Neck Plantation suffices the spirit and intent of the New Hanover County Zoning Ordinance; (3)Each site is considered a residential use for the purposes of landscaping and buffering requirements; (4) The kayak racks on each site are considered accessory structures and not "dry stack storage of boats;"and, (5) The rental of the kayak racks by members of POA is not considered a commercial use. 42. Section 121 of County's Zoning Ordinance states that an appeal from interpretation of the Ordinance may be taken to the Board of Adjustment and the appeal must be filed with the zoning administrator within thirty(30)days of receipt of the decision. 43. On June 30, 2016, QLA filed an appeal of County's determinations and the appeal was heard by the County's Board of Adjustment on August 23, 2016. 44. County's Board of Adjustment issued an Order dated August 23, 2016 denying QLA's appeal and affirming the determinations made by O'Keefe. 8 45. QLA appealed the County Board of Adjustment's Order to this Court. Based on the foregoing facts, the Court makes the following CONCLUSIONS: 1. All parties are properly before the Court. The appeal of the determination(s) of County's Board of Adjustment dated August 23, 2016 is timely, is properly before this Court, and this Court has jurisdiction to consider the Petitioners' Petition. 2. Because Local Permit Officer Painter's June 10, 2015, correspondence with the Coastal Management Division was not a final determination from which Petitioner could have appealed, failure to"appeal" such correspondence does not bar Petitioner's Petition under Section 121 of the County's Zoning Ordinance. 3. The North Carolina Coastal Resources Commission issued a November 16,2015,Decision that Petitioner is not entitled to a third party hearing for issuance of CAMA permits. While Petitioner's claims are tangentially related to CAMA permitting, the issues before this court center on issues of New Hanover County Zoning Ordinance interpretation as applied to dry stack storage of boats, landscaping, buffers and commercial activity. Consistent with Section 121 of the County's Zoning Ordinance, N.C. Gen. Stat. § 150B and N.C. Gen. Stat. § 160A-393, Petitioners have pursued this contested case in Superior Court after exhausting all administrative remedies, including timely appeal of the County Planning and Inspection Department's June 10, 2016 final determination letter and timely appeal of the New Hanover County Board of Adjustment's August 23,2016 Order in Case ZBA-910. Petitioners' claims are not barred due to any alleged failure to exhaust administrative remedies. 4. Petitioners have standing pursuant to N.C. Gen. Stat. § 160A- 393(d)(1) and(3). Therefore, Petitioner is not required to establish standing through evidence that they will suffer special damages pursuant to N.C. Gen. Stat. § 160A- 393(d)(2). 9 5. Porters Neck Quality of Life Association, Inc. et al challenged the POA's development and use of the Lots as Community Boating Facilities in a 1995 Superior Court case that was resolved in favor of the Porters Neck Homeowners Association, Inc. and Porters Neck Company, Inc. However,the 1995 case did not address the specific issues raised in Petitioner's Petition. Accordingly, Petitioners' claims are not barred by the doctrine of collateral estoppel. 6. When reviewing the decision of such a board,the superior court should: (1)review the record for errors of law; (2)ensure that procedures specified by law in both statute and ordinance are followed; (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4)ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and(5)ensure that the decision is not arbitrary and capricious. Whiteco Outdoor Adver. v. Johnston County Bd. of Adjustment, 132 N.C. App.465,468 (1999). Based on the aforementioned standard,the County's August 23, 2016, Conclusions 1, 2, 3, 4, 5 and 7 are proper. 7. The evidence is sufficient to support the Boards of Adjustment's decision that the Lots in question are legal nonconforming Community Boating Facilities as they were established prior to the requirement of obtaining a Special Use Permit. 8. The evidence is sufficient to support the Boards of Adjustment's decision that rights to use the subject properties were transferred to members of Porters Neck Plantation, Bishops Park, and Creekside homeowners' associations and a few others through the recorded Homeowner's Association covenants and various easements. 9. The evidence is sufficient to support the Board of Adjustment's decision that the uses on the Lots are ancillary residential uses of property for Porters Neck Plantation and, therefore, do not require the buffering which would be required for a non-residential use. 10. The evidence is sufficient to support the Board of Adjustment's decision that the rental of kayaks by members of POA is not a commercial activity regulated in County's Zoning Ordinance definition of a Community Boating Facility. io 11. In light of the conclusion that evidence is sufficient to support the Board of Adjustment's decisions discussed in the above paragraphs, the undersigned further concludes that the Board of Adjustment's decisions as discussed in the above paragraphs were neither arbitrary nor capricious. 12. Petitioner contends that the Board of Adjustment's decision with respect to storage of kayaks in racks was affected by error of law. Specifically, Petitioner asserts the Board of Adjustment erroneously interpreted the term "boat"such that the kayaks at issue do not meet the definition of"boat"and further that they erroneously interpreted "dry stack storage" such that the storage of kayaks in the racks at issue do not meet the definition of"dry stack storage." 13. Where the petitioner alleges that a board decision is based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been determined. However, one of the functions of a Board of Adjustment is to interpret local zoning ordinances, and this Court's duty is to decide if the board "acted arbitrarily, oppressively, manifestly abused its authority, or committed an error of law in interpreting the ordinance. Taylor Home v. City of Charlotte, 116 N.C. App. 188, 193. 447 S.E.2d 438, 442, disc. review denied, 338 N.C. 524 (1994). Whiteco Outdoor Adver. v. Johnston County Bd. of Adjustment, 132 N.C.App. 465, 470 (1999). 14. In construing zoning ordinances, the court is obligated to adhere to fundamental principles of statutory construction. Id. Statutory interpretation begins with the plain meaning of the words of the statute. Where the plain meaning is unclear, legislative intent controls. Sharpe v. Worland, 137 N.C. App. 82, 85 (2000). 15. In Whiteco, the ordinance at issue created an ambiguity because two provisions specifically referred to "initial value"while a third provision referred only to "value"and did not specify either"initial value"or"present value." Because the plain meaning of the provision was unclear and ambiguous,the Whiteco court could not rely solely on plain meaning. Instead, the Whiteco court was forced to look beyond the words of the provision and in so doing gave deference to the county board's interpretation of its own ordinances. The court agreed with the county's interpretation which was arrived at it • by reading the ambiguous terms in pari materia and inferring meaning that was not readily available from a plain reading of the language of the ordinance. 16. Where the plain meaning of the statute is clear, however, no further analysis is required. Sharpe, at 85. The case at bar is distinguishable from Whiteco in that the plain meaning of the ordinance at issue before this Court is clear. Therefore, adhering to the fundamentals of statutory interpretation, this Court need not look outside the plain meaning of the County's ordinance and need not rely on the County's interpretation of the ordinance. 17. Turning to the words of the ordinance, the definition of the term "boat"is very inclusive as to the types of vessels or watercraft that qualify as "boats." The ordinance defines a"boat"as: "A vessel or watercraft of any type or size specifically designed to be self-propelled, whether by engine, sail, oar or paddle or other means, which is used to travel from place to place by water."(Emphasis added.) Respondents argue that a kayak does not qualify as a "boat"because it is "human-propelled"and not "self-propelled". However,nothing in the wording of the ordinance's definition of "boat"disqualifies human propulsion as the means of a kayak's self-propulsion. Quite the opposite, the ordinance's definition of"boat"specifically includes propulsion by oar or paddle. Since oars and paddles are customarily powered by humans, the language of the ordinance logically includes human-propelled watercraft within the ordinance's definition of"boat." 18. Likewise, nothing in the common dictionary definitions of"Self- Propelled"or"Self-Propulsion"(as found in the New Webster's Collegiate Dictionary supplied by Respondent)disqualifies human propulsion as a means of self-propulsion. "Self-Propelled" is defined as: "Containing within itself the means for its own propulsion; and"Self-Propulsion" is defined as: "Propulsion by one's own power." A kayaker sits within a kayak and propels the craft across the water with her own power via a paddle. 19. The operative distinction is not whether a boat is "human- propelled." Instead, the operative distinction is whether there is a means of propulsion 12 contained within the vessel or craft. The means of the kayak's propulsion(the human paddler) is contained within the kayak,just as the means of a row boat's propulsion (the human rower)is contained within the row boat, and the means of a ski boat's propulsion (the engine) is contained within the ski boat and the means of a sail boat's propulsion(the sail) is contained within the sail boat. These are all examples of self-propelled watercraft, and all examples of watercraft that meet the ordinance's definition of"boat." Watercraft that are not self-propelled, on the other hand,are not"boats"under the ordinance. A barge, for example, is a vessel that does not have a means of propulsion. Barges require an external source of propulsion(usually a tugboat or similar craft)to propel them from place to place across the water. A barge is not designed to be "self-propelled" and, therefore, does not fall within the ordinance's definition of"boat" Therefore, for the reasons set forth above and by the plain meaning of the ordinance, a kayak qualifies as a "boat"under the ordinance. 20. "Dry Stack Storage" is defined by the County's Zoning Ordinance as: "Vertical storage of boats in a rack system,providing for storage of at least 2 layers of boats." As demonstrated by photographs and drawings of the racks, the kayak racks on the subject property vertically store kayaks, which are boats, in three layers. There is capacity for at least 36 kayaks to be stored on these racks. Accordingly, by the plain meaning of the ordinance, POA's storage of the kayaks on the racks on the subject property meets the definition of"dry stack storage", and said racks are not allowed on the subject Lots under the ordinance. 21. This Court concludes that the County committed an error of law in concluding that the kayak racks on the subject properties are not "the dry stack storage of boats"under the ordinance. Accordingly, the County's August 23, 2016, Conclusion 6 is reversed. Based on the foregoing, it is HEREBY ORDERED,ADJUDGED and DECREED that the decision of the New Hanover County Board of Adjustment is affirmed in part and reversed in part, and this matter is remanded to the Board of 13 A Adjustment with instructions that the Board enter a decision denying Respondent's December 15, 2015 Application as it pertains to kayak storage racks. This the 3 day of August, 2017. The Honorable Andrew Heath Superior Court Judge 14 „ . NEW HANOVER COUNTY a©O 14 G sa+f`'=,�� INSPECTION SERVICES '`4` COUNTY ADMINISTRATION BUILDING ANNEX 414 Chestnut Street, Room 203 Wilmington,North Carolina 28401 - Phone(919)341-7118 Zoning Division Y.. January 26, 1993 Mr. Richard Donaldson Porters Neck Company, Inc. 202 Lafayette Street Wilmington, N.C. 28405 RE: Porters Neck Plantation, Building Permits # B-41188 and B-41189, Issued August 18, 1992 Dear Richard: This will confirm and supplement our recent conversation concerning the two community boating facility sites on Bald Eagle Lane. We discussed the fact that construction has not yet started on either pier, and that a gravel parking lot and boat ramp have been constructed at the northern site. We also discussed the need for County-required landscaping to be installed as soon as practicable, but recognized the fact that several issues need to be resolved before this can happen - notably, changes in a drainage swale, possible removal of an adjacent house through one of these properties, and possible lengthening of the boat ramp. I reminded you that the building permits for the piers need to be in an active status when construction is started. What I did not touch on is the fact that the Zoning Ordinance was changed in October 1992, and that these two rojects became non f -co o 'ng ro'ec s (Ordinance ction -1 . Eac is nszdered a ommunity Boating Facility, "intended to serve five or more residential lots or residential units” (Ordinance Section 23-62) . The significant change is the fact that such facilities ncco requlire_ special use permit. '---�-^-- J ° 000147 Mr. Richard Donaldson January 26, 1993 Page Two For your two non-conforming projects, this means that your two building permits must be kept in an active status, as they cannot be renewed or extended without a special use permit. _. _ __warlt _on_ h_ Cis must commcnoo within Sly months of the permits' issuance, that is, before akirary IB, "-T993-. Some work- - - - must then take place within every twelve-month period to keep the permits in force. I refer you to Ordinance Section 103 for the precise language concerning expiration of permits. Please let me know if you have any questions. Very truly yours, gcl.„) Ann S. Hines Chief Zoning Enforcement Officer ASH:sb-h Enclosures: cited ordinance sections cc: S.D. Conklin, Inspection Director 1RwoofontF, Assistant County Manager