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BOA_9-28-21_Agenda_Packet September 28, 2021, 5:30 PM I. Call Meeting to Order (Chairman Cameron Moore) II. Approval of July Minutes (currently in draft status) July Member Attendees: Cameron Moore, Kristin Freeman, Pete DeVita, Maverick Pate, Luke Waddell III. Old Items of Business IV. Regular Items of Business Case BOA-963 – Jason Akins, applicant, on behalf of James and Debora Pressley, property owners, is requesting a variance of 8’ from the 25’ minimum front yard setback requirement and 1’ from the 10’ minimum side yard setback requirement per Section 3.2.8.D of the New Hanover County Unified Development Ordinance. The property is zoned R-15, Residential District and is located at 1521 Marsh Cove Lane. V. Other Business VI. Adjourn 1 MINUTES BOARD OF ADJUSTMENT-DRAFT The New Hanover County Board of Adjustment held a regular and duly advertised meeting at 5:30 P.M. at the New Hanover County Government Center Complex, 230 Government Center Drive, in the Lucie Harrell Conference Room, Wilmington, NC, on Tuesday, July 27, 2021. Members Present Members Absent Cameron Moore, Chairman Hank Adams Kristin Freeman, Vice-Chair Michael Keenan Pete DeVita Richard Kern Maverick Pate Luke Waddell Ex Officio Members Present Ken Vafier, Executive Secretary Sharon Huffman, County Attorney Wendell Biddle, Zoning Compliance Official Andres Baena, Zoning Compliance Official Amy Doss, Current Planner The meeting was called to order at 5:30 P.M. by the Chairman, Mr. Cameron Moore. Mr. Moore stated the Board of Adjustment is a quasi-judicial board appointed by the Board of Commissioners to consider 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. Pete DeVita made a motion to adopt the minutes from the June 23, 2021, meeting. Mr. Luke Waddell second the motion. Following a motion by Mr. DeVita and seconded by Mr. Waddell the minutes from the June 23, 2021, minutes were unanimously approved. Ken Vafier introduced new Planning staff members to the board: Wendell Biddle, Andres Baena, and Amy Doss. Chairman Moore informed Board members that the case on today’s agenda is a continuance from the April 27, 2021, meeting. The applicant and his team will address the board’s itemized checklist requested to the applicant at the May 27, 2021, hearing. The Chairman swore in Ken Vafier, Andrew Jones, PLLC, Sean McDonough, Brett Tanner, and Robert and Karen Foster. 2 CONTINUANCE CASE BOA-958 Sean McDonough, applicant, on behalf of Brett and Christy Tanner, property owners, is requesting a variance of 8.8’ from the 15’ minimum side yard setback requirement per Section 3.2.6.D of the New Hanover County Unified Development Ordinance for an addition to an existing garage. The property is zoned R-20S, Residential District and is located at 8020 Bald Eagle Lane. PUBLIC HEARING At the previous hearing, the board requested information be provided by the applicant regarding current impervious coverage, allowance of water outfall to wetlands, CAMA permitting requirements, the distance of outfall to the adjacent septic system and the distance of the pipe’s discharge to the intracoastal waterway Andrew Jones, PLLC- Mr. Jones presented on behalf of the applicant with a revised site plan drafted by the applicant and engineer working on the proposed garage and improvements. Mr. Jones stated that the applicant revised the original site plan in consultation with Mr. Sedgwick and in consideration of adjacent neighbor concerns. The impervious surface of the site will be reduced from the initial 29.2 % to 24.2 %. The impervious will be increased however with improvement to the garage the overall total of impervious will be lessened per site plan revision. Mr. Jones stated the applicants team spoke to the NC DEQ CAMA representative regarding regulations as it pertains to outfall to the wetland area. Regulations require a minimum 30’ distance from the outfall to the normal high-water line; this distance is also displayed on the revised site plan. Mr. Jones stated there is a CAMA application proposed to submit to NC DEQ for the proposed scope of work. Mr. Jones stated that the existing stormwater issue was discovered when the applicant purchased the property, and the applicant is seeking to control the water to the proposed structure with the proposed addition of the accessory structure. Mr. Jones stated in speaking with the Environmental Health Department it was relayed that the sanitary septic system shall be located 25’ away from a drainage system. This distance is also indicated on the revised site plan. The Environmental Health Department has documents indicating the location of the applicant’s septic system and the adjacent property owner’s system on file. Chairman Moore asked if the site plan displays the drainage system. Mr. Jones stated the drainage system is outlined on the revised site plan as three lines. Brad Sedgwick, JBS Engineer Consulting- Mr. Sedgwick stated a surveyor was consulted for the house, garage and driveway and listed information regarding the built upon area on the site plan. Mr. Sedgwick stated due to CAMA regulations the applicant modified the site plan to include the BUA of 24.2%. The drain lines are clear in the permit and on the ground and visible on the revised site plan. Mr. Sedgwick stated that Mr. Foster allowed access to his property to identify and locate his drainfield. Mr. Sedgwick stated upon review there has been previous repair to the Mr. Foster’s drainfield. These repairs were done after the system was installed. Documents are on file with Environmental Health. Mr. Sedgwick stated they propose to add a french drain to assist the water flow drain to directly to the intracoastal area. 3 Mr. Sedgwick stated with the revisions to the proposed variance requested, the changes will make the run-off better. The bulkhead was listed as the normal high-water mark. Mr. Sedgwick stated he spoke with representative on regulations regarding storm water runoff. Mr. Sedgwick stated the lot was plotted many years ago and the county does not regulate stormwater run-off to this site. Mr. Sedgwick stated per NC DCM, the area has a 30ft setback from the high-water line. Mr. Sedgwick stated NC DEQ does not regulate stormwater on an individual residential lot. Mr. Jones asked the board if they had additional questions as it relates to the revised site plan. Mr. Waddell stated the applicant has addressed all previous concerns and altered the piping to be used to increase better waterflow from the proposed garage addition. Mr. DeVita asked if there is a preliminary drawing ready of the proposed garage. Mr. McDonough stated currently no drawing is available. However, the garage is an extension of the roof and existing second floor building. Chairman Moore stated the applicant will need a CAMA minor permit for activity to the site. Chairman Moore asked if the adjacent neighbors were informed of the proposed drainage plans. Karen Foster- (8024 Bald Eagle Lane) Ms. Foster asked if NC DEQ CAMA was satisfied with discharge of water flow being distributed to the bulkhead area. Ms. Foster asked if she could get copies of handouts pertaining to today’s hearing. Chairman Moore stated the applicant has presented satisfactory modifications to address concerns regarding stormwater flow. Chairman Moore stated NC DEQ CAMA will address concerns as the applicants pursue a CAMA permit. Chairman Moore stated NCDEQ CAMA would require approval on the applicant’s drainage proposal for permitting. The proposal will require a CAMA permit and impervious calculations must be provided to obtain a CAMA permit. Mr. DeVita stated the applicant has proposed a reversed piping that should assist with water flow to the bulkhead. PUBLIC HEARING CLOSED. Chairman Moore stated the applicant has provided a narrative for the variance request proposal. Chairman Moore stated that the board is tasked with adhering to the zoning element of the requested variance. Chairman Moore stated some of the narrative may have been altered as the site plan has been revised. Chairman Moore stated the applicant has provided enhancements to replace the garage and addressed the neighbors’ concerns of water run-off with no adverse effects the neighbors. 4 The Board discussed that the applicant addressed all concerns and is working with the neighbors’ concerns of stormwater run-off, impervious area, and CAMA regulations. Mr. Waddell stated the applicant has complied with all the board’s request on additional information. Mr. DeVita stated he commends the applicant on working with the neighbors on a mitigation plan to address their concerns. Mr. DeVita made a motion to approve the variance as requested by the applicant. Mr. Waddell second the motion. A condition was place on the variance the applicant will be required to obtain a CAMA Minor Permit for the requested scope of work, and that development shall be consistent with the site plan submitted as the Applicant’s “Exhibit B”. The variance request was GRANTED for 8020 BALD EAGLE LANE. The Board's decision was based on the following conclusions and findings of fact: 1. It is the Board's conclusion that, if the applicant complies with the literal terms of the ordinance, specifically a variance of 8.8’ from the 15’ minimum side yard setback requirement per Section 3.2.6.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: • The applicant proposes to extend the existing garage by 12’ and construct a 24” tall masonry foundation wall to help divert and control surface water coming from adjacent planter area and runoff from Bald Eagle Lane. • Failure to control runoff in this area could lead to further damage to the structure. • The existing garage was built 5’-6’ back as depicted in current survey. In order to serve the needs of Mr. And Mrs. Tanner and their family, the extension of the existing garage at the current setback of 5’-6’ would: 1. Mitigate water intrusion 2. Maintain the integrity of existing home’s architectural lines 3. Enhance and/or maintain the value of their home consistent with neighboring properties 4. Increase on-site protected parking 5. Increase storage for homeowners. 5 2. It is the Board's conclusion that the hardship of which the applicant complains results from unique circumstances related to the subject property, such as location, size, or topography. This conclusion is based on the following FINDINGS OF FACT: • As it relates to “hardship” and the rights of a property owner to enhance said property, the request for this variance is consistent with the existing structure setbacks, the continuity of the adjacent properties, and would have no adverse effects of adjacent property owners. Failure to grant the variance would deny the homeowners the right to both protect and enhance their property. 3. It is the Board's conclusion that the hardship of did not result from actions taken by the applicant or the property owner. This conclusion is based on the following FINDINGS OF FACT: • The home was purchased with the understanding that the home would need improvements, repairs, and enhancements, which could include additions that are consistent with existing structure setbacks. 4. It is the Board’s conclusion that, if granted, the variance will be consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT: • The proposed addition is consistent with both the spirit and of the rights of any property owner to preserve the value and integrity of their investment. There being no further business before the board, it was properly moved by Mr. DeVita and seconded by Mr. Waddell to adjourn the meeting. All ayes. MEETING ADJOURNED. Please note the minutes are not a verbatim record of the proceedings. _______________________________________ ______________________________ Executive Secretary Chairman Date: __________________________________ VARIANCE REQUEST BOARD OF ADJUSTMENT September 28, 2021 CASE: BOA-963 PETITIONER: Jason D. Akins, applicant, on behalf of James Pressley, property owner. REQUEST: Variance of 8’ from the 25’ minimum R-15 front yard setback (8’ encroachment) and variance of 1’ from the 10’ side yard setback (1’ encroachment) requirement per Section 3.2.8.D of the New Hanover County Unified Development Ordinance. LOCATION: 1521 Marsh Cove Lane PID: R07908-003-017-000 ZONING: R-15, Residential District ACREAGE: 0.23 Acres BACKGROUND AND ORDINANCE CONSIDERATIONS: Jason D. Akins, applicant, on behalf of James Pressley, property owner, is requesting a variance from the minimum R–15 front yard setback requirement of 25’ and a variance from the minimum side yard setback of 10’ in order to construct steps to the front of the house and allow for a 1’ intrusion into the side yard. 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 legally described in Deed Book 958 PG 139 as being part of a subdivision of land which was originally recorded in December 1965, before there was an option to utilize the standards of a performance development. Although not recorded specifically as a conventional development, the parcel is subject to the required 25’ front setback and 10’ side setback in the R-15 district as specified in the dimensional standards in Section 3.2.8 of the UDO: The UDO prescribes a minimum lot width of 80’ and size for the R-15 district of 15,000 sf. The subject property is a legal nonconforming 0.23-acre parcel recorded in 1965, and as a result the parcel contains dimensional non-conformities with respect to lot width and area, and is only 10,018 sf. As a result, the buildable area on the lot is reduced to approximately 1,200 sf. In a conventional development, the UDO requires that the dimensional standards for each zoning district be met. Please refer to the attached aerial map for context. The subject property is a vacant lot with the exception of a slab of concrete and a boardwalk leading to a dock. As it is, the lot is already non-conforming in size and width. Buildable land on the lot has been further reduced by wetlands located on three sides of the property. Flood zone standards require elevated piling construction of the house, which results in additional rise and run required for the front steps which create further encroachment into the front setback. As the parcel is adjacent to the Intracoastal Waterway, it is subject to standards set forth in the Coastal Area Management Act which requires a 20’ buffer from the mean high-water line at this site. The structure is proposed in the only buildable area on the lot with the exception of the front stairs, which are necessary for access and the small corner that juts into the side setback and ensures the safe architectural construction of the building. According to the applicant, imposing the side setback requires the structure to be out of square by 9”. In the absence of a variance for 1’ into the side setback at the right rear corner the home could have potential structural issues. Figure 2: Proposed Site Plan with Staff Markups The applicant contends that the variance is necessary to permit safe access to the front of the house and safe construction of the home which the property owners intended to pursue when they purchased the lot. Since purchasing the lot and development of the first layout, the normal high- water line has moved further inland forcing the structure to be located even closer to the front setback. Construction standards in the VE flood zone require elevated piling construction, which in turn means the structure must have more rise/run thus the steps encroach further into the front setback. Buildable area on the lot has been reduced since purchasing the lot which the applicant contends has created a hardship. Proposed 1’ Encroachment into Side Yard Proposed 8’ Encroachment into Front Yard In summary, the applicants are requesting a variance from the 25’ R-15 front yard setback requirement to construct stairs 8’ into the front setback to the existing single-family dwelling on the subject property, which will be set back 17’ from the Right-of-Way Marsh Cove Lane. In addition, the applicant is requesting a 1’ variance from the 10’ side setback. 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. MYRTLE GROVE RD Site New Hanover County Board of Adjustment Address: 1521 Marsh Cove Lane Variance from R-15 front setback and side setback requirements per Section 3.2.8.D of the New Hanover County Unified Development Ordinance. Applicant: Jason D. Akins Case: BOA-963 Vicinity Map September 28, 2021 R 340 Feet Marsh C o v e L a n e Win d y H i l l s D r i v e R-15 New Hanover County Board of Adjustment Address: 1521 Marsh Cove Lane Variance from R-15 front setback and side setback requirements per Section 3.2.8.D of the New Hanover County Unified Development Ordinance. Applicant: Jason D. Akins Case: BOA-963 Zoning Map September 28, 2021 R 340 Feet Marsh C o v e L a n e Win d y H i l l s D r i v e New Hanover County Board of Adjustment Address: 1521 Marsh Cove Lane Variance from R-15 front setback and side setback requirements per Section 3.2.8.D of the New Hanover County Unified Development Ordinance. Applicant: Jason D. Akins Case: BOA-963 Aerial Map September 28, 2021 R 340 Feet ORDER TO GRANT A VARIANCE – Case BOA-963 The Board of Adjustment for New Hanover County, having held a public hearing on September 28, 2021 to consider application number BOA-963, submitted by Jason Akins, applicant, on behalf of James Pressley, property owner, a request for a variance of 8’ from the 25’ minimum R-15 front yard setback and a variance of 1’ from the minimum 10’ side yard setback requirements per Section 3.2.8.D of the New Hanover County Unified Development Ordinance to use the property located at 1521 Marsh Cove Lane in a manner not permissible under the literal terms of the ordinance and having heard all the evidence and arguments presented at the hearing, makes the following FINDINGS OF FACT and draws the following CONCLUSIONS: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 25’ minimum R -15 front yard setback and the 10’ minimum side yard setback requirements per Section 3.2.8.D of the New Hanover County Unified Development Ordinance, that an unnecessary hardship would/would not result. (It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.) This conclusion is based on the following FINDINGS OF FACT: • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. 2. It is the Board’s conclusion that the hardship of which the applicant complains results/does not result from unique circumstances related to the subject property, such as location, size, or topography. (Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.) This conclusion is based on the following FINDINGS OF FACT: • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. 3. It is the Board’s conclusion that the hardship did/did not result from actions taken by the applicant or the property owner. (The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self- created hardship.) This conclusion is based on the following FINDINGS OF FACT: • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. 4. It is the Board’s conclusion that, if granted, the variance will/will not be consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT: • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. THEREFORE, on the basis of all the foregoing, IT IS ORDERED that the application for a VARIANCE from New Hanover County Unified Development Ordinance to allow a variance of 8 from the 25’ minimum R- 15 front yard setback and a variance of 1’ from the side yard setback requirements per Section 3.2.8.D of the UDO be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 28th day of September, 2021. ____________________________________ Cameron Moore, Chairman Attest: ________________________________ Kenneth Vafier, Executive Secretary to the Board NOT FOR REAL ESTATE SALES OR CONVEYANCE PRELIMINARY