Loading...
MARCH 2021 APPROVED MinutesMINUTES BOARD OF ADIUSTMENT The New Ha nover County Zoning Boa rd of Adjustment held a regular and duly advertised meeting at 5:30 P. M. at the New Hanover County Government Center Complex,230 Government Center Drive, in the Lucie Harrell Conference Room, Wilmington, NC, on Tuesday, March 23,2021 Members Present Members Absent Cameron Moore, Chairma n Kristin Freeman, Vice-Chair Luke Waddell Maverick Pate Ha nk Adams Pete DeVita Michael Keena n Richard Kern Ex ffi io Members Present Ken Vafier, Executive Secretary Sharon Huffman, county Attorney Rebekah Roth, Planning & Land Use Director Marty Little, Long Range Planner Denise Brown, Zoning Admin Technician Mr. Moore stated the Board of Adjustment is a quasi-judicial board appointed by the Board of Commissioners to consider ordina nce variances from residents in New Hanover County where special conditions would create unnecessary hardships. The Board of Adjustment also hears appeals of the County's interpretation in enforcement of the Unified Development Ordinance, The appellants have thirty days in which to appeal any decision made by the Board to Superior Court. FIRST ORDER OF BUSINESS Mr. Maverick Pate made a motion to adopt the minutes from the February 23,2021 meeting. Vice-Chair Freeman second the motion. The motion passed unanimously. Sharon Huffman gave overview that four board members present at today's hearing is a quorum for decisions on the agenda's cases. However, all four members must agree to grant variances to be approved. The two applicants for the cases on the agenda agreed to move forward with the case hearings. cAsE zBA-956 Mr. Vafier presented an overview of the case stating the petitioner, Kenneth Haynes, applicant, on behalf of Jeffrey and Jeane Finucan, property owners, is requesting a variance of 8.33'from the 20' mjnimum rear yard setback requirement per Section 3.2.9. D of the New Hanover County Unified Development Ordinance. The property is zoned R-10, Residential District and is located at 4504 Barnards Landing Road. Mr. Vafier stated the applicant intends to construct a 7,r28-sl pool enclosure on the subject property. The subjectproperty is located on a o.27-acre lot, and currently contains an existing 384 sf shed adjacent to an in-ground pool. The 1, The meeting was called to order at 5:30 P.M. by the Chairman, Mr. Cameron Moore. The Chairman then swore in County staff Ken Vafier. 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. The subject site is in the Huntington Forest subdivision which was recorded in 1994. The site is listed as conventional development and subject to the required rear yard setback in the R-10 district of 20' as specified in Section 3.2.9 of the UDO. The new enclosure will be attached to the existing shed and will total 1,512 sf. The structure would require to meet the 20' rear yard setback. The applicant is requesting to locate the enclosure over the existing concrete pool deck, which would be set back 11' 8" from the rear property line for an encroachment of 8.33' into the required setback. Mr. Vafier stated the applicant contends 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. Mr. Vafier stated the applicants are requesting variance from the minimum rear yard setback requirement of 20' in order to construct a 1,128-sf pool enclosure on the site over the existing pool and deck. The applicant states this enclosure will provide security to the pool and protection from surrounding wildlife. Mr. Vafier presented an aerial photo of the subject site displaying the in-ground pool, the shed and the rear of the property line. Mr. Waddell asked what type of screening will be around the pool. Mr. Vafier stated the applicant provided a site plan displaying an aluminum type frame with exterior screen for the pool. Chairman Moore asked if anything over the 600 sf would require the rear 20 ft setback back. Mr. Vafier stated structures over 600 sf would require a 20 ft rear setback. Vice-Chair Freeman asked how close the shed to the property line is. Mr. Vafier stated the shed currently sits 5'from property line per initial site plan. The applicant submitted plans for permit approval however the plan was denied due to not meeting the required rear setback requirements. Mr. Pate asked why the setback changes with structures over 600 sf. Mr. Vafier stated with larger structures additional setbacks are needed. Chairman Moore asked if the shed was conforming. Mr. Vafier stated the shed would not be considered non-conforming; with a variance approval it would apply to the rear setback encroachment primarily. Chairman Moore then swore in Mr. Jeff Finucan and Mr. Kenneth Haynes. 2 The UDO defines an accessory structure subordinate to a principal structure and use, the use of which is customarily fou nd in association with and is clea rly incidental to the use of the principa I structure of the la nd a nd which is not attached by any part of a common wall or roof to the principle structure. The UDO allows for two different types of subdivision designs, Performance Residential and Conventional Residential Developments. Mr. Jeffrey Finucan - Mr. Finucan presented as owner of the subject site and requested that Mr. Kenneth Haynes speak on behalf of the variance request. Mr. Kenneth Haynes- Mr. Haynes stated that the applicant reached out to him requesting a pool enclosure to comply with fencing requirements in having a pool, in addition wanted to keep younger members out of the pool unless they were supervised. Mr. Haynes stated the applicant has family members with allergies and requested the pool enclosure to have a screen. Mr. Haynes stated the enclosure is totally aluminum with screen walls and roof. Mr. Haynes stated he was told the setback was 5' by the property owner. As they were applying for permits with a structure over 600 sf the setback was informed to be 20 ft from the rear. Mr. Haynes stated the hardship a shed was previously constructed to the rear of the pool. The piping for the pool has been placed in the ground with concrete outlining it. Mr. Haynes stated the pool and concrete cannot be removed. Mr. Haynes stated he was not aware of the setback requirements. Vice-Chair Freeman asked about the framing, particularly how far past the pool the structure is to be placed Mr. Haynes stated the enclosure will be around the structure. The height will be about 10 ft tall. Mr. Pate asked about the safety of the enclosure. M r. Haynes stated the screened is see th ru and does not block adjacent neighbor views. ln addition, the enclosu res provide a safety net for sma ller mem bers of the household in entering the pool unsupervised. The enclosu re is free standing from the primary residence. chairman Moore asked if there is a limit on accessory structures Mr. Waddell asked if there is an HOA in the community. Mr. Haynes stated the residence is not associated with an HOA. There is a fence surrounding the residence, however it does not comply with pool requirements. Mr. Vafier stated per the county Building Safety department permitted the pool site plan as submitted PUBTIC HEARING CTOSEO BOARD OISCUSSION The Board discussed the applicant's proposal of constructing a pool enclosure to provide safety and security in addition to the plans as submitted. The Board agreed the applicant presents with an unnecessary hardship as the pool has been placed in the ground and with concrete surrounding it, and that the applicant was not clear of the regulated rear setback prior to pool placement. The Board talked about the shed to the rear of the property already being in place. The Board generally discussed the building code, setbacks, and hardship this circumstance presents for the applicant. BOARD DECISION on a motion by Mr. Maverick Pate and seconded by Mr. Luke Waddell, the board voted 4-0 to grant the variance at 4504Barnards Landing Road, Wilmington NC. 3 The installation of the enclosure is a method that will comply with fencing requirements per the NC Building Code. 2. lt is the Board's conclusion that the hardship of which the applicant complains results from unique circumstances related to the subject property, such as location, size, or topography. This conclusion is based on the following FINDINGS OF FACT: With the existing shed, the size ofthe lot provides limitations on the room to place the enclosure on an R-10 lot. 3. lt is the Board's conclusion that the hardship did not result from actions taken by the applicant or the property owner. This conclusion is based on the following FINDINGS OF FACT: o The UDO does allow for accessory structures and pools, with a requirement that fencing be placed around a poo L . The property owner did not take any action to cause the hardship. 4. lt is the Board's conclusion that, if granted, the variance will be consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT: The installation of the enclosure will enhance public safety, is required to satisfy NC Building Code requirements regarding pool security fencing. As a screened in enclosure, the enclosure will still be "see-through" and will not provide a large visual barrier. cAsE zBA-957 Mr. Vafier presented an overview of the case stating the petitioner, Martha Estela Vicente Andrade, applicant and property owner, is requesting a variance of 1.2 ft from the 20 ft minimum side yard setback requirement per Section 3.2.5.D of the New Hanover County Unified Development Ordinance. The property is zoned AR, Airport Residential District and is located at 151.4 Roane Drive. The subject parcel is a part of the Glynwood Subdivision, which was recorded in 1974 as a conventional development. The required side yard setbacks in the AR district are 20 ft as specified in the dimensional standards in Section 3.2.5 of the U DO. Mr. Vafier stated that Ms. Andrade is a requesting a variance from the side yard setback to place a 1,792-sf mobile home on the subject property The applicant is proposing to relocate the 64'x 28'mobile home on the parcel, which consists of 0.34 acres and has width of 101.62'. The placement of the home would result in both side yards having an 1g.8 ft setback. Mr. vafier stated the applicate contends the variance is necessary in order to place the mobile home on the lot wjth theaccommodation of the required septlc system location, and that it is a replacement of a previous home with similar sideyard dimensions. 4 The Board's decision was based on the following conclusions and findings of fact: L. lt is the Board's conclusion that, if the applicant complies with the literal terms of the ordinance, specifically a 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, that an unnecessary hardship would result. This conclusion is based on the following FINDINGS OF FACT: Mr. Vafier presented photos of the lot from various angles. Currently there is not a home on the site Mr, Vafier concluded that the applicate is requesting the variance to place the mobile home on the property utilizing the dimension of 18.8 ft. on each side. Chairman Moore asked if the subject site is non-conforming Mr. Vafier stated the site is non-conforming due to the lot size Vice-Chair asked if the previous home had a similar dimension Mr. Vafier stated that the previous home per the applicant had a side yard set of 14 ft from the southern property line. Chairman Moore then swore in Martha Andrade and Stella Azamar Ms. Azamar stated that the applicant requests the variance to place the home at the requested dimensions to obtain septic and well services on the lot. Ms. Azamar stated there is a nearby mobile home that has a home placed with dimension of 11 sf to the side yard setback. PUBI.IC HEARING CLOSED BOARD DECISION The Board stated that without the relief to the required dimensions the applicant would not be able to place the mobile home at the subject site. The Board stated that the lot requirements are challenging, the lot is less than an acre size. The Board stated the subject site is a non-conforming use. The Board discussed the hardship that presents in placing a home on the lot. The Board discussed the property's size and location and that the current status of the property was not created by the owner. The applicant purchased the property as is without knowledge of prior restrictions to setback regulations due to previous structures were at dimensions prior to current zoning. The Board agreed that granting the variance approval would be consistent and substantialjustice is achieved. On a motion by Mr. Luke Waddell and seconded by Mr. Maverick Pate, the board voted 4-0 to grant the variance at 1514 Roane Drive, Wilmington NC. The Board's decision was based on the following conclusions and findings of fact 1. lt is the Board's conclusion that, if the applicant complies with the literal terms of the ordinance, specifically a variance of l.Z' lrcm the 20' minimum side yard setback requirement per Section 3.2.5.0 New Hanover County Unified Development Ordinance, that an unnecessary hardship would result. This conclusion is based on the following FINDINGS OF FACT: Without issuance of the variance, the applica nt would not be able to locate the mobile home on the property as the lot is non-conforming with respect to the minimum lot area requirements for the AR district. 5 Mr. Vafier stated a previous home existed on the lot with an approximate 14 ft side yard setback on the southern property line and would have been considered a legal non-conforming situation as the AR district requirements were adopted in 1976. The previous home was removed in 2019 and continued utilization of this side yard dimension is not permitted as the situation has been discontinued for over 180 days. 2. lt is the Board's conclusion that the hardship of which the applicant complains results from unique circumstances related to the subject property, such as location, size, or topography. This conclusion is based on the following FINDINGS OF FACT: The property is on an older lot with a smaller lot size than currently required in zoning The septic location restricts relocation options. 3. lt is the Board's conclusion that the hardship of which the applicant complains results from unique circumstances related to the subject property, such as location, size, or topography. This conclusion is based on the following FINDINGS OF FACT: The owner of the property bought the lot as is without the knowledge of current restrictive setbacks due to the previous structure not meeting them prior to zoning. 4. lt is the Board's conclusion that, if granted, the variance will be consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial iustice is achieved. This conclusion is based on the following FINDINGS OF FACT: The Board finds that the requested variance is consistent with the spirit and intent of the UDO OTHER BUSINESS Mr, Marty Little, tong Range Planner- Mr. Little presented the Development Code Update to the Board members regarding State Law updates and Ongoing Maintenance. Mr. Little stated that a proposed amendment to align the UDO with NC General Statues Chapter 1600, a new state law for planning and development regulations, will be moving forward to the Planning Board and Board of Commissioners in the coming months. o BOA to hear decided variances to subdivision regulations . Ordinance to clarify current practice of requiring 4/5 majority vote for Reasonable Accommodations . Applicant must provide written consent to all conditions of approval placed on variances o New Rules for Permit Choice o Update BOA rules of procedure to reflect new conflict of interest standards There being no further business before the board, it was properly moved by Mr. Luke Waddell and seconded by Vice- Chair Freeman to adjourn the meeting. All ayes. 6 These changes will take effect on July L,2027. Mr. Little then overviewed f ive ways the amendment impacts the Board of Adjustment, which include: MEETING ADJOURNED. Please note the minutes are not a verbatim record of the proceedings. Executive Secretary Chairman Date:7 \ 7