BOA-968 Staff SummaryCASE: BOA-968
PETITIONER: Will Riddick, applicant, on behalf of D.R. Horton, Property Owner.
REQUEST: A variance request of 5’ from the 20’ minimum Performance Residential periphery setback requirement per Section 3.1.3.D of the New Hanover County Unified Development Ordinance
(UDO).
LOCATION: 6550 River Road, Wilmington
Parcel ID: R07800-005-013-000
ZONING: Residential District (R-15)
ACREAGE: 17.13 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
Will Riddick, applicant, on behalf of D. R. Horton, property owner, is requesting a variance from the 20’ peripheral rear setback for lots 49-61 of the Grand Bay at Beau Rivage residential
development. This request will allow both HVAC systems and decks per unit to encroach into the periphery setback. The preliminary plat is dated April of 2022 and has not recorded subdivided
lots of the 17.13-acre parcel. The approval of the Performance Residential Development is contingent upon the approval of this variance.
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.
Section 3.1.3.D of the UDO contains provisions governing Performance Subdivisions, which generally address design parameters and other approval requirements. Although the conventional
front, side, and rear yard requirements are not mandated on a performance residential lot, this section still requires a 20’ setback on the periphery of the subdivision:
3.1.3. SUPERSEDING DIMENSIONAL STANDARDS
D. Performance Residential Development
Performance Residential Developments are not subject to the minimum lot size, minimum lot width, and front, rear, and side setback requirements in the zoning district where they are
located. Performance Residential Developments shall comply with the standards in this section and with all other applicable standards in this Ordinance.
1. Setbacks and Spacing
a. Buildings on the periphery of a Performance Residential Development shall setback a minimum of 20 feet from the adjoining property line.
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Figure 1: Grand Bay at Beau Rivage Residential Development
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Figure 2: Lots 49-55
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Figure 3: Lots 56-61
The applicant contends that the variance is necessary as there is no alternative location for the HVAC systems, which would encroach less than 1 linear foot into the buffer. Also, due
to the design of each structure and the topography, potential residents do not have a place to step into the rear of their unit. The applicant proposes a deck per unit which would be
less impactful to the buffer than a patio slab. Each deck and stairs would encroach less than 5 linear feet into the peripheral rear buffer.
In summary, the applicant is requesting a variance from the 20’ Performance Subdivision periphery setback requirement of 5 feet for lots 49-61. This variance would allow the applicant
to place HVAC systems and provide a deck per unit which would give future residents the ability to step into the rear of their lot.
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:
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.
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.
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.
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)
Motion to table the item in order to receive additional information or documentation (Specify).
Motion to deny the variance request based on specific negative findings in any of the 4 categories above.