November BOA Agenda Packet
November 14, 2023, 5:30 PM
I. Open Meeting (Deputy Attorney Karen Richards)
II. Election of Officers (Deputy Attorney Karen Richards)
III. Approval of August 22, 2023 Minutes
(Attendees at August Meeting – Vice Chair William Mitchell, Michael J. Keenan Sr., Richard Kern,
Michael Sanclimenti, Ed Trice)
IV. Old Items of Business
V. Regular Items of Business
Case BOA-984 – Cindee Wolf, applicant, on behalf of Glenn & Janet Weaver Nester, property
owners, is requesting a variance of 15’ from the 30’ minimum required interior side yard setback
from residential properties per Table 3.1.3.C.1 of the New Hanover County Unified Development
Ordinance. This property is zoned R-20, Residential District and is located at 4224 Castle Hayne
Road.
VI. Other Business
VII. Adjourn
MEMBERS OF THE BOARD
William Mitchell, Vice Chair
Will Daube | Michael Keenan, Sr. | Caleb Rash | Greg Uhl
BOARD ALTERNATES
Richard Kern | Michael Sanclimenti | Ed Trice
Rebekah Roth, Director of Planning & Land Use | Karen Richards, Deputy County Attorney
NEW HANOVER COUNTY
BOARD OF ADJUSTMENT
230 GOVERNMENT CENTER DRIVE, CONFERENCE ROOM 139 WILMINGTON, NC 28403
MINUTES
BOARD OF ADJUSTMENT
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, August 22nd, 2023.
Members Present Members Absent
William Mitchell, Vice-Chair
Michael Keenan
Richard Kern
Michael Sanclimenti
Ed Trice
Caleb Rash
Greg Uhl
Ex Officio Members Present
Ken Vafier, Planning Manager
Karen Richards, Deputy County Attorney
Wendell Biddle, Current Planner
Jeiny Tisbert, Administrative Specialist
The meeting was called to order at 5:30 P.M. by the Vice-Chair, Mr. William Mitchell.
FIRST ORDER OF BUSINESS
Vice-Chair William Mitchell explained that the Board of Adjustment is a quasi-judicial Board appointed by the
Board of Commissioners to consider ordinance variances from residents in New Hanover County where special
conditions would create unnecessary hardships. He said the Board 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.
Mr. Mitchell asked for a motion to adopt the June 27th minutes. Mr. Keenan made a motion to approve the
minutes, and Mr. Trice seconded the motion.
The Board unanimously adopted the minutes.
Mr. Mitchell swore in Ken Vafier, Planning Manager, and Wendell Biddle, Current Planner.
CASE BOA-983
Mr. Wendell Biddle presented the case, stating that the request for the variance is to reduce 3 out of the 4
property setbacks established in New Hanover County Unified Development Ordinance (UDO), in particular
Section 3.4.1.1.D and Table 3.1.3.C.1. The request is to reduce the front yard setback from 50 feet to 20 feet,
the rear yard setback from 45 feet to 25 feet, and the interior side yard setback from 20 feet to 10 feet. The
applicant, Cindee Wolf of Design Solutions, is representing the property owner, Save Dog Project Inc. The site
is located in Castle Hayne at 4503 North College Rd. It is approximately 3 quarters of a mile west of Interstate
40, and one mile north of Interstate 140 bypass. The property is just over one-half acre and is zoned I-2, Heavy
Industrial district. The northwest adjacent lot is zoned I-2. The southeast adjacent lot is zoned R-15 but it is
used for religious assembly which is a nonresidential land use. The remaining adjacent lots are also zoned R-15.
The proposed use is for an animal shelter that would serve as temporary habitat for animals being transported
from one shelter to another. Animal Shelter is defined as a nonresidential facility used to house or contain
animals and is owned, operated, and maintained for the purpose of providing temporary kenneling and care for
the animals and finding permanent adoptive homes for them. The proposed use is permitted by right within the
I-2 districts. If the adjacent lot is not a residential use, but is residentially zoned, the interior side set back
between I-2 district and that nonresidential lot is 20 feet. The applicant is requesting a reduction of this setback
to 10 feet. The applicant is requesting a reduction of this rear set back to 25 feet.
Mr. Biddle concluded his presentation by stating that the concept plan illustrates what the building would look
like with the prescribed I-2 district setbacks. The applicant is proposing an 8-foot privacy fence and a 12.5-foot
Type-A opaque buffer yard between the lots and the adjacent residential lots to the southwest. The applicant
requests reductions and setbacks to accommodate a 40 by 60-foot animal shelter in a 45 by 60-foot garage.
There will also be a 12 and a half by 60-foot walk/relief pen for the animals.
Mr. Mitchell asked the Board if there were any questions for staff.
Mr. Sanclimenti what the adjacent properties are. Mr. Biddle stated that one was a single-family residence and
the other was a church.
Mr. Keenan asked if the property behind has a privacy fence. Mr. Biddle stated that he was not sure if there was
a fence, however, it is a thick wooded area.
Mr. Mitchell asked if that wooded area could be removed during construction. Mr. Biddle stated that it could
however that would be a question for TRC since they would be handling the tree removal permits. Mr. Vafier
stated that if the vegetation for it to be removed or what vegetation must be removed to accommodate the
development of the site there is still a requirement to have vegetative buffer yard. Mr. Biddle added that there
are multiple options for vegetative buffer, but the applicant is proposing the most stringent option which is the
Type-A opaque buffer yard.
Mr. Mitchell asked if there were any further questions for staff.
Mr. Mitchell swore in Cindee Wolf and John Thomas.
John Thomas stated that he is the founder and president of Save Dog Project. Save Dog Project is a dog welfare
organization nonprofit 501(c)(3). They have been operating since 2017 virtually. They do not have a physical
location. In the rescue relocation they transport dogs from areas where there is a high supply and low demand,
such as North Carolina, South Carolina, Tennessee, Alabama, and Georgia, and they relocate and transport dogs
to areas in the country where there is a shortage such as New England and Canada. Since 2017, they have
rescued or relocated over 5,000 dogs. They are making an impact to help dogs that are homeless that have no
chance of survival in overcrowded shelters. Right now, they maintain a 2-vehicle fleet so the purpose for this
property is primarily to house their transport vehicles and to incorporate a future short-term shelter “pit stop”
for dogs on transports that are longer 1,500-2,000 miles. They would house them for a night to destress them
and make sure they are healthy until they complete the rest of the transport.
Mr. Keenan asked if there would be dogs there all the time. Mr. Thomas stated there will not be. A quarter of
the month, there would be dogs housed in that facility which would be soundproofed inside, but it would not be
full time. It is not intended to be a full-time shelter but just a stopping point along the transport route.
Mr. Sanclimenti asked how the dogs would be kept inside the shelter when there. Mr. Thomas stated that their
current vehicle is a retrofitted Mercedes Sprinter van. with 24 cages in it. Each cage is air conditioned and has a
drainage system, so each dog has its own dedicated cage. The vehicle that they are building now is a vehicle
that costs twice as much and has twice the capacity (48 cages) to allow them to move more dogs with larger
transport, longer distances. The proposed shelter would be equipped with a cage system so the shelter would
have cages built in. They would unload the dogs, make sure they are okay and walk them and house them in
cages located within the shelter. Then a day or two later, they resume the remainder of the transport.
Mr. Keenan asked if there would be a chance to disturb the neighbors with dogs barking. Mr. Thomas said there
would be a very low chance of disturbance. The facility will be soundproofed and there will not be any outdoor
kennels.
Mr. Sanclimenti asked where the food would be stored. Mr. Thomas stated that storage will be built inside the
garage that houses the fleet vehicles.
Mr. Mitchell if there were any other questions.
Ms. Wolf stated that she has been working with Mr. Thomas through this process and would like to go through
their request and the justification. It is zoned I-2. It is a very small lot, but a big part of it was that Mr. Thomas
got the surveyors to go ahead and do the topography and the first thing that jumped out was that there was a
major culvert under N College Rd and there is a ditch coming from the southeast up to the northwest and into a
swale, so it transports off site drainage water through the site. Once the proposal gets to TRC then that is
something that is going to have to be dedicated for public drainage easement. Setbacks for I-2 from the side and
from the back are 100 feet. By adhering to this, there would not be any place to build whatsoever, however with
transitional buffers they do allow it to be reduced to 45 in the back and 20 on the side. Ms. Wolf stated that
what was the most important to the animal shelter was that it is permitted in the I-2 district but to utilize the
setbacks that are allowed in the CB, Community Business district.
Ms. Wolf showed an image of the conceptual site plan.
Ms. Wolf continued by stating that they are asking for the 20-foot setback which is as CB setback for
development in the CB district from the 50-foot front. The CB is also 20 but, in this case, as Mr. Biddle pointed
out, it is adjacent to a church. They are a pretty good distance from the church. There is an accessory building to
that side that still would be required to have a transitional buffer between. At the rear yard, where the required
45 foot I-2 setback is, they are requesting a 25-foot setback, consistent with the Community Business district.
Along that boundary, because it is a residential use, they have proposed the transitional buffer with an 8-foot
fence.
Ms. Wolf concluded by stating they believe they have met the findings of fact and the I-2 setback requirements
would render this site undevelopable altogether. With the required transitional buffers the site would have, the
buildable area of the lot would be very limited. The hardships are the conditions of location and topography and
size. Ms. Wolf stated that the team also looked at rezoning which would be subject to the public process. This
is an industrial zoned property so rather than zone it down to a community business, staff felt that the remedy to
this was best served by the variance process. Ms. Wolf stated that she believes that the requested variances
would allow reasonable development of the site, and it is use specific. If this use were to change the variance
would be null and void and there are other UDO criteria for the buffering for the landscaping for the noise
abatement so all those things will be covered regardless of these setbacks.
Mr. Mitchell asked if the Board had any questions.
Mr. Sanclimenti asked if the applicant looked at other properties in the area. Ms. Wolf stated that he did.
Mr. Mitchell requested a motion and close the public hearing and move into deliberation.
PUBLIC HEARING CLOSED
BOARD DELIBERATION
Mr. Keenan motioned to approve the request and accept the findings of fact provided by the applicant. Mr.
Trice seconded the motion.
All ayes.
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 the side interior and rear setbacks per Section 3.1.3.C.1, and the front yard setback per
Section 3.4.11.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:
• If the setbacks prescribed for the Heavy Industrial (I-2) district are applied at fifty feet (50’) from
the N. College Road right-of-way, and forty-five (45’) from the rear boundary, an extremely
limited area for any use would be created. The usable building envelope would result in only
24.2% of the total lot area.
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:
• The subject property, at just 0.61 acres, is extremely small for any non-residential use. Also,
there is a ditch along the northwestern property boundary, conveying off-site public drainage
across the site. Dedication of a public utility easement will be required during construction
authorization, and further limits the usable building envelope.
3. It 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:
• The existing lot has been zoned industrial since before 1994. One means of remedy could be a
rezoning to a district that has reduced setbacks, but the issue can also be addressed by the
requested variances. Strategies of the County’s Comprehensive Plan promote retention of already
industrial-zoned properties to provide for a good mixture of uses in the future.
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 use as a temporary animal shelter, with a garage for maintenance of the transfer
vehicles is also permitted in zoning districts with reduced setbacks. Approval of the variances
would be conditional upon the attached plan. The attached exhibit includes mitigation for any
impacts that might affect surrounding properties.
• Allowing some latitude to the prescribed setbacks for this particular use would not adversely
affect the spirit, purpose, or intent of the Ordinance, nor pose a public safety issue. The reduced
setbacks would provide substantial justice for the property owner to pursue reasonable use of the
small tract.
THEREFORE, on the basis of all the foregoing, IT IS ORDERED that the application for a
VARIANCE from the New Hanover County Unified Development Ordinance to allow the side interior
and rear setbacks per Section 3.1.3.C.1, and a variance from the front yard setback per Section 3.4.11.D
of the New Hanover County Unified Development Ordinance be GRANTED, subject to the following
conditions, if any:
There being no further business before the Board, it was properly moved by Mr. Keenan and Mr. Kern
seconded to adjourn. All ayes.
MEETING ADJOURNED.
Please note the minutes are not a verbatim record of the proceedings.
Executive Secretary
Vice Chair Date
VARIANCE REQUEST
BOARD OF ADJUSTMENT
November 14, 2023
BOA-984 Page 1 of 4
CASE: BOA-984
PETITIONER: Cindee Wolf with Design Solutions, applicant, on behalf of Glenn and Janet Nester,
property owners.
REQUEST: Variance of 15’ from the 30’ minimum required interior side yard setback from
residential properties per Table 3.1.3.C.1 of the New Hanover County Unified
Development Ordinance (UDO).
LOCATION: 4224 Castle Hayne Road
PID: R01700-004-033-000
ZONING: R-20, Residential District
ACREAGE: 7.83 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
The applicant is requesting a variance related to the interior side setback to allow for an adaptive re-use
of the existing structure by converting it into a facility to operate a Contractor Office for a landscaping
company, defined by the UDO as:
An establishment primarily engaged in the day-to-day administrative and clerical services for businesses
providing contracted services, such as building contractors, heating and air conditioning (HVAC)
repair, landscaping and janitorial services, etc., that require outside and/or fleet storage. The use may
include some on-site repair and material preparation work.
This transition to the proposed use is contingent upon the successful rezoning of the property from an R-20,
Residential District to a (CZD) B-2, Regional Business District. Per the UDO’s Principal Use Table, the
proposed use will be permitted by right in the B-2 zone.
Figure 1: Table 4.2.1
VARIANCE REQUEST
BOARD OF ADJUSTMENT
November 14, 2023
BOA-984 Page 2 of 4
Figure 2: Applicant's Site Plan with Staff Markups
Upon successfully rezoning the subject property, the existing structure will be used for commercial purposes.
However, at 15 feet from the neighboring southern lot line, the existing structure would not meet the
required interior side setback of 30 feet from the adjacent parcel to the south, zoned as R-20, which is
prescribed by Table 3.1.3.C.1 of the UDO:
Figure 3: Table 3.1.3.C.1
20 ft.
N
15’ Interior Side
Setback
Existing 5,000 Sq. Ft.
Structure 30’ Required
Interior Side
Setback
Setback
Single-Family Residence
and Accessory structures
Proposed
Stormwater Pond
VARIANCE REQUEST
BOARD OF ADJUSTMENT
November 14, 2023
BOA-984 Page 3 of 4
With a rezoning of the property to B-2, the setback between the proposed commercial structure and the
residentially zoned adjacent parcel to the south will be required to be no less than 30 feet. Thus, the
applicant is requesting a variance of 15 feet from the required side yard setback on the northern property
line.
The applicant contends that if the lot is commercially rezoned, difficulties will arise in adequately
developing the property due to the location of the existing structure and the residentially zoned adjacent
parcel to the south, requiring a buildable envelope that is not possible with the current UDO’s guidance on
interior side and rear setbacks from residential properties.
The subject property consists of 5.90 acres. Located along Castle Hayne Road, this parcel is currently zoned
R-20, Residential District. The properties directly adjacent and along the same side of Castle Hayne Road
are also all zoned R-20. Directly across the road lie two parcels zoned Office and Institutional, (CZD) O&I
district. Adjacent to the O&I district are parcels zoned as being a part of the Rural Agriculture district.
Figure 3: Zoning Map
VARIANCE REQUEST
BOARD OF ADJUSTMENT
November 14, 2023
BOA-984 Page 4 of 4
In summary, the applicant is requesting a variance of 15 feet to accommodate the rezoning of the parcel
from R-20 to (CZD) B-2. The applicant contends that the variance is necessary due to factors including
limited buildable area to develop the site with a commercial use and the presence of an existing structure
that does not meet the necessary 30-foot side (interior) setback required of the B-2 zoning district when
adjacent to a residential platted lot.
BOARD OF ADJUSTMENT POWER AND DUTY:
The Board of Adjustment has the authority to authorize variances from the terms of the Zoning 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
Zoning 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.
MEMBERS OF THE BOARD
William Mitchell, Vice Chair
Will Daube | Michael Keenan, Sr. | Caleb Rash | Greg Uhl
BOARD ALTERNATES
Richard Kern | Michael Sanclimenti | Ed Trice
Rebekah Roth, Director of Planning & Land Use | Karen Richards, Deputy County Attorney
NEW HANOVER COUNTY
BOARD OF ADJUSTMENT
230 GOVERNMENT CENTER DRIVE, CONFERENCE ROOM 139 WILMINGTON NC 28403
ORDER TO GRANT A VARIANCE – Case BOA-984
The Board of Adjustment for New Hanover County, having held a public hearing on November 14, 2023,
to consider application number BOA-984, submitted by Cindee Wolf with Design Solutions, applicant, on
behalf of Glenn & Janet Weaver Nester, property owners, is requesting a variance of 15’ from the 30’
minimum required interior side yard setback from residential properties per Table 3.1.3.C.1 of the New
Hanover County Unified Development Ordinance (UDO) to use the property located at 4224 Castle Hayne
Road in a manner not permissible under the literal terms of the UDO, 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 30’ interior side setback requirement per Table 3.1.3.C.1, of the New Hanover
County Unified Development Ordinance, that an unnecessary hardship would/would not result.
(It shall 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 the
New Hanover County Unified Development Ordinance to allow a 15’ variance from the 30’ interior side
yard setback required per Table 3.1.3.C.1 of the New Hanover County Unified Development Ordinance be
GRANTED/DENIED. Approval is subject to applicant within 7 days signing a document acknowledging
applicant’s consent to all of the following conditions, if any:
If the applicant does not sign a document acknowledging consent to all listed conditions, then this
approval is null and void.
ORDERED this 14th day of November 2023.
____________________________________
Chair
Attest:
________________________________
Kenneth Vafier, Executive Secretary to the Board