BOA-956 Staff SummaryBOA-956 Page 1 of 5
VARIANCE REQUEST
BOARD OF ADJUSTMENT
March 23, 2021
CASE: BOA-956
PETITIONER: Kenneth Haynes, applicant, on behalf of Jeffrey and Jeane Finucan, property owners.
REQUEST: Variance of 8.33’ from the 20’ minimum rear yard setback requirement per Section 3.2.9.D
of the New Hanover County Unified Development Ordinance.
LOCATION: 4504 Barnards Landing Road
PID: R07015-004-009-000
ZONING: R-10, Residential District
ACREAGE: 0.27 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
Kenneth Haynes, on behalf of Jeffrey and Jeane Finucan, property owners, are requesting a variance from
the minimum rear yard setback requirement of 20’ in order to construct a 1,128 sf pool enclosure on the
subject property.
The subject property is located on a 0.27-acre lot, and currently contains an existing 384 sf shed adjacent
to an in-ground pool. The applicant applied for a screened-in enclosure to cover the in-ground pool, but
a re-submittal was required as the total area of the accessory structure would require that it meets the
principal setbacks for the R-10 district (see attached staff Exhibit 1)
The UDO defines an accessory structure as follows:
ACCESSORY STRUCTURE - A structure subordinate to a principal structure and use, the use of which is
customarily found in association with and is clearly incidental to the use of the principal structure of the
land and which is not attached by any part of a common wall or roof to the principal structure. (When
a specific structure is identified in this Ordinance as accessory to another use or structure, the structure
need not be customarily incidental to, or ordinarily found in association with, the principal use to qualify
as an accessory structure.)
Section 4.4.4 of the UDO requires that accessory structures in excess of 600 sf meet the minimum required
setbacks for a principal structure in their respective zoning district:
4.4.4 STANDARDS FOR SPECIFIED ACCESSORY USES AND STRUCTURES
B. Accessory Structure
Accessory structures shall comply with the following standards:
1. No accessory structure shall be erected in any required yard nor within five feet
of any other building, except that accessory buildings not exceeding 600
square feet may be permitted in the required side and rear yards provided such
accessory buildings are at least five feet from the property line and do not
encroach into any required easements.
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The UDO allows for two different types of subdivision design: Performance Residential Developments and
Conventional Residential Developments. In a performance development, individual lots are not subject to
the specific yard requirements of a zoning district provided that the density for the zoning district is not
exceeded. In a conventional development, the UDO requires that the dimensional standards for each
zoning district be met. The subject parcel is a part of Huntington Forest, which was recorded in 1994 as a
conventional development. The required rear yard setback in the R-10 district is 20’ as specified in the
dimensional standards in Section 3.2.9 of the UDO:
The proposed enclosure will be attached to the existing shed and will total 1,512 sf. Applying the language
from Section 4.4.4.B.1 would require that the structure meet the 20’ rear yard setback. The applicant is
proposing to locate the enclosure over the existing concrete pool deck, which would lie 11’8” from the rear
property line, for an encroachment of 8.33’ into the required setback.
BOA-956 Page 3 of 5
Figure 2: Proposed Site Plan with Staff Markups
The applicant contends that the variance is necessary in order to provide additional security for the pool
in addition to protection of the applicant’s young family members from insects. In addition, they contend
that they began the project under the impression the enclosure could encroach up to 5’ from the property
line, and the pool and surrounding deck has already been installed and cannot be altered at this time.
In summary, the applicants are requesting a variance from the minimum rear yard setback requirement of
20’ in order to construct a 1,128 sf pool enclosure on the subject property over the existing pool and deck.
Barnards Landing Road
4508
Barnards
Landing
4500
Barnards
Landing
Proposed 1,128
SF Enclosure,
11’8” from Rear
Property Line
Existing 384 SF Shed
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BOARD OF ADJUSTMENT POWER AND DUTY:
The Board of Adjustment has the authority to authorize variances from the terms of the Unified Development
Ordinance where, due to special conditions, a literal enforcement of the regulations would result in
unnecessary hardship. In granting any variance, the Board may prescribe appropriate conditions and
safeguards in conformity with the Unified Development Ordinance. A concurring vote of four-fifths (4/5)
of the voting members of the Board shall be necessary to grant a variance. A variance shall not be granted
by the Board unless and until the following findings are made:
1. Unnecessary hardship would result from the strict application of the ordinance. It shall not be
necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of
the property.
2. The hardship results from conditions that are peculiar to the property, such as location, size, or
topography. Hardships resulting from personal circumstances, as well as hardships resulting from
conditions that are common to the neighborhood or the general public, may not be the basis for
granting a variance.
3. The hardship did not result from actions taken by the applicant or the property owner. The act of
purchasing property with knowledge that circumstances exist that may justify the granting of a
variance shall not be regarded as a self-created hardship.
4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that
public safety is secured, and substantial justice is achieved.
ACTION NEEDED (Choose one):
1. Motion to approve the variance request based on the findings of fact (with or without
conditions)
2. Motion to table the item in order to receive additional information or documentation
(Specify).
3. Motion to deny the variance request based on specific negative findings in any of the 4
categories above.
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Staff Exhibit 1: 2020 Aerial Photo with Approximate Locations of Existing Shed and Proposed Pool Enclosure
Existing 384 SF Shed
Proposed 1,128 SF Enclosure,
11’8” from Rear
Property Line