HomeMy WebLinkAbout9.24.24 Agenda Packet
September 24, 2024, 5:30 PM
I. Call Meeting to Order (Chair William Mitchell)
II. Adoption of August 27, 2024 Minutes
(Attendees at August Meeting – Chair William Mitchell, Vice Chair Michael Keenan, Will Daube,
Caleb Rash, Ed Trice, Jonathan Bridges)
III. Old Items of Business
IV. Regular Items of Business
Case BOA-992 – Jose A. Cruz Godinez, applicant, on behalf of Cruz Godinez Properties, property
owner, is requesting a variance from the withholding of permits penalty per Section 5.3.2.B of
the New Hanover County Unified Development Ordinance. The property is zoned I-1, Light
Industrial District and is located at 509 Hermitage Road.
Case BOA-993 – Douglas Brandon Paluck of P&P Enterprises, LLC, applicant and property owner,
is requesting variances from the 30’ minimum side yard setback requirement per Table 3.1.3.C.1
and from the 10’ required transitional landscape buffer requirement per Section 5.4.3,
Transitional Buffer Standards, of the New Hanover County Unified Development Ordinance. The
property is zoned R-15, Residential and is located at 5406 Castle Hayne Road.
Case BOA-994 – Cindee Wolf of Design Solutions, applicant, on behalf of B&P of Wilmington,
LLC, property owner, is requesting variances of 34’ from the 115’ minimum lot width and 5,540
square feet from the 30,000 square foot minimum lot area requirement required per Section
3.2.5.D of the New Hanover County Unified Development Ordinance. The property is zoned RA,
Rural Agricultural District and is located at 6502 Old Bridge Site Road.
V. Other Business
VI. Adjourn
MEMBERS OF THE BOARD
William Mitchell, Chair | Michael Keenan, Sr. Vice-Chair
Will Daube | Caleb Rash | Greg Uhl
BOARD ALTERNATES
Jonathan Bridges | 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
BOA-992 Page 1 of 5
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
CASE: BOA-992
PETITIONER: Jose A. Cruz Godinez, applicant, on behalf of Cruz Godinez Properties, owner.
REQUEST: Variance from withholding of permits per Section 5.3.2.B of the New Hanover
County Unified Development Ordinance (UDO).
LOCATION: 509 Hermitage Road
PID: R01817-003-002-000
ZONING: I-1, Light Industrial District
ACREAGE: 2.93 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
The applicant is requesting a variance from the 3-year period for withholding development approvals
prescribed for failure to obtain a tree removal permit prior to the removal of substantially all
documented trees from a property by New Hanover County’s Unified Development Ordinance (UDO).
The subject property is located in Castle Hayne near the eastern terminus of Hermitage Road, just over
one mile east from its’ intersection with Castle Hayne Road in front of the General Electric (GE) campus.
The adjacent parcel to the north is currently wooded with similar tree species and size to the subject
property, while the parcels to the west and south are developed with commercial uses. Properties to the
north, west and south are also zoned I-1, Light Industrial. To the east, there is a vacant property between
the subject property and a large area of wooded, vacant property. Across from a railroad easement to
the east is a large area zoned I-2, Heavy Industrial District.
On June 19, 2024, New Hanover County Zoning staff received an inquiry regarding unpermitted
clearing on Hermitage Road. An investigation on that date verified that the applicant had conducted
unauthorized tree removal on a majority of the 2.93 acres without first obtaining the required tree
removal permit or providing New Hanover County Planning staff with documentation exempting the
applicant from the tree removal permit. Section 5.3.5 of the UDO describes the requirements for tree
removal permits:
5.3.5 TREE REMOVAL PERMITS
A. Unless a waiver, exemption, or exception applies in accordance with Section 5.3.1, Applicability
or Section 10.3.9.B.2, Waivers, Exemptions, and Exceptions, no person, directly or indirectly,
shall remove any regulated tree identified in Section 5.3.4, Tree Retention Standards, from public
or private property without first obtaining a tree removal permit in accordance with Section
10.3.9, Tree Removal Permit.
B. Unless a waiver, exemption, or exception applies in accordance with Section 10.3.9.B.2,
BOA-992 Page 2 of 5
Waivers, Exemptions, and Exceptions, a tree removal permit authorizing removal is required
before any clearing, grading, or other authorizations may be issued, including building permits.
The portion of the tree removal permit approving the required mitigation plan shall not be
required until after construction plan approval.
During the investigation, staff observed that the majority of lot was cleared of trees, and logs remained
in piles on the property. Subsequent to the investigation a tree removal permit was applied for on June
20, 2024. This application included a tree inventory which indicated a quantity of approximately 35
pine trees, 11 sweet gum trees, and 30 4”-6” caliper wax myrtle trees. Sizes of the cleared pine trees
and sweet gum trees were not included on the inventory, but the leftover logs appeared to have been
approximately 8” or greater, for which they would be classified as documented trees per the UDO. The
application also included the required Tree Mitigation Worksheet, that contained information showing
that there were no Significant Trees on the site that were identified as being removed. However, during
the course of the staff investigation, no information was produced to demonstrate that the site did not
contain any other documented trees. Table 5.3.4.A provides description of New Hanover County’s
Regulated Trees:
Figure 1: Table of Regulated Trees
BOA-992 Page 3 of 5
Section 5.3 of the UDO describes actions to be taken in the event of unauthorized tree removal which
results in the removal of all or substantially all documented trees where no permit or exemption was
obtained:
5.3.2. FORESTRY AND PROPERTY CLEARING
B. While exempted forestry activities are not subject to the tree retention requirements of this
section, failure to obtain an exemption to a tree removal permit prior to any timber harvest or
other property clearing activity will result in the denial of a building permit, site plan approval,
or subdivision approval for a period of three years, regardless of any change in ownership, if the
harvest results in the removal of all or substantially all documented, significant, or specimen trees
from the tract. The denial period shall be increased to five years in situations where removal of
all or substantially all regulated trees was a willful violation of these County regulations.
After determining that the majority of documented trees appear to have been cleared, staff determined
that the language regarding withholding of permits was applicable to this site, and a letter informing the
applicant of this withholding was sent on July 1, 2024. This letter outlined the land use violation of
unpermitted land clearing and stipulated that for a period no less than three years, this parcel will be
denied all building permits, site plan approvals, and subdivision approvals regardless of ownership.
When notified of the land use violation, the applicant has decided to pursue a variance reducing the
amount of time that development permits would have to be withheld as he intends to develop the site to
locate a landscaping business. The application states that the application would request that he be
allowed to provide mitigation. Mitigation requirements are detailed in Section 5.3.7 of the UDO:
5.3.7 MITIGATION
A. When Significant Trees are authorized for removal by a tree removal permit or Specimen Trees
are authorized for removal by a variance, they shall be replaced at a rate of 2.0 times the
caliper inches at DBH removed, except as provided in subsections D and E below and Section
5.3.8, Optional Incentives for Retaining Trees.
B. Each replacement tree shall be a minimum of 2-inch caliper size at time of planting.
C. Replacement trees should reflect the type (e.g., hardwood, flowering, evergreen, deciduous,
canopy, understory, etc.) of tree being removed to the maximum extent practicable based on the
compatibility of the species with proposed buildings and infrastructure, existing environmental
conditions, and diversity of tree species.
D. If the Planning Director determines it is infeasible for a portion or all of the replacement tree(s)
to be accommodated on the site, the Planning Director may direct that an in-lieu fee be paid to
the County’s Tree Improvement Fund. The mitigation fee as set forth in the County’s fee schedule
shall be charged for every inch at DBH of Significant Tree removed and two times every inch at
DBH of Specimen Tree removed.
BOA-992 Page 4 of 5
Per the submitted tree mitigation worksheet, no significant trees were removed, and 100 total aggregate
inches at DBH of documented trees were retained on site. Were a tree removal permit obtained in
advance of the clearing, this would show that no mitigation would be required. However, due to the
removal of other documented trees on the site, the withholding of permits penalty still was enacted.
The applicant contends that he hired and relied upon a professional contractor to perform the work and
obtain all applicable entitlements, and additional information is provided in the submitted application.
When the site is ultimately developed, it would still be subject to the county’s landscaping standards,
which include a requirement that a minimum of 15 trees of at least two inches DBH or two caliper inches,
shall be retained or planted for each acre or proportionate area disturbed by the development. Trees
retained on the parcel count toward this replanting requirement, and street yard landscaping and
parking lot interior landscaping standards also apply.
The variance the applicant is requesting is that the Board of Adjustment waive or reduce the 3-year
period for withholding development permits for the subject parcel and allow the applicant to provide
mitigation as the board may determine appropriate. The applicant does intend to further landscape the
property in accordance with the required standards. Previous granted variance requests have allowed
applicants to provide mitigation or landscaping consistent with what the county’s regulations after the fact
if a variance is granted.
BOA-992 Page 5 of 5
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.
MEMBERS OF THE BOARD
William Mitchell, Chair | Michael Keenan, Sr. Vice-Chair
Will Daube | Caleb Rash | Greg Uhl
BOARD ALTERNATES
Jonathan Bridges | 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-992
The Board of Adjustment for New Hanover County, having held a public hearing on September 24, 2024,
to consider application number BOA-992, submitted by Jose A. Cruz Godinez, applicant, on behalf of Cruz
Godinez Properties, owner, a request for a variance from the withholding of permits per Section 5.3.2.B
of the New Hanover County Unified Development Ordinance (UDO) to use the property located at 509
Hermitage 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 withholding of permits per Section 5.3.2.B 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 variance from the withholding of permits
per Section 5.3.2.B 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 24th day of September, 2024
____________________________________
Chair
Attest:
________________________________
Kenneth Vafier, Executive Secretary to the Board
Specimen Trees Identified for Removal (Variance Required)
Live Oak 36" or larger
Pond Cypress 36" or larger
Bald Cypress 36" or larger
Required Mi*ga*on Inches
Na*ve Trees Iden*fied to be Retained On-Site
Na9ve unregulated trees a minimum of 2" DBH
Dogwoods, American Hollies 2-4" DBH
Long Leaf Pine, Pond Cypress, Bald Cypress, Na9ve Hardwoods 2-8" DBH
Other Na9ve Conifers 2-12" DBH
Na9ve Documented Trees
Dogwoods, American Hollies 4-8" DBH
Long Leaf Pine, Pond Cypress, Bald Cypress, Na9ve Hardwoods 8-18" DBH
Other Na9ve Conifers 12-24" DBH
Exis9ng Trees Growing in Mature Na9ve Forests
Exis9ng Trees Growing in Stands or Natural Clusters
TOTAL
Adjusted Mi*ga*on Inches
Significant Trees Identified for Removal
Dogwoods, Magnolias, Na9ve Flowering Trees, American Hollies 8" DBH or larger
Non-Specimen Long Leaf Pine, Pond Cypress, Bald Cypress, Hardwoods 18" DBH or larger
Other Conifers 24" or larger
Required Mi*ga*on Inches
Trees Iden*fied to be Retained On-Site
Na9ve unregulated trees a minimum of 2" DBH
Non-na9ve unregulated trees a minimum of 2" DBH
Documented Trees
Dogwoods, American Hollies 4-8" DBH
Long Leaf Pine, Pond Cypress, Bald Cypress, Na9ve Hardwoods 8-18" DBH
Non-Na9ve Hardwoods 8-18" DBH
Other Na9ve Conifers 12-24" DBH
Non-Na9ve Conifers 12-24" DBH
Exis*ng Trees Growing in Mature Na*ve Forests
Aggregate inches (Determina9on by Cer9fied Arborist or NC Licensed Forester Required)
Exis*ng Trees Growing in Stands or Natural Clusters
Stands or Clusters of primarily na9ve species (Determina9on by Cer9fied Arborist or NC Licensed Forester Required)
Stands or Clusters of primarily non-na9ve species (Determina9on by Cer9fied Arborist or NC Licensed Forester Required)
1
TOTAL NATIVE INCHES
TOTAL NON-NATIVE INCHES
TOTAL INCHES USED TO OFF-SET SPECIMEN TREE MITIGATION
Total Adjusted Mi*ga*on Inches
Replacement Inches that Cannot be Accommodated On-Site
Fee In-Lieu Required (based on mi*ga*on fee of $200 per inch in County Fee Schedule)
2
Aggregate Inches
at DBH
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
60
0
40
0
0
0
0
3
100
0
0
-150
$ -
4
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
BOA-993 Page 1 of 7
CASE: BOA-993
PETITIONER: Douglas Brandon Paluck
REQUEST: Variance Request A: Variance of 8’ from the 30’ side setback per Table 3.1.3.C.1
of the New Hanover County Unified Development Ordinance.
Variance Request B: Variance of 4’ from the required transitional landscape buffer
to the southern R-15 zoned property per Section 5.4.3, Transitional Buffer
Standards, of the New Hanover County Unified Development Ordinance.
Variance Request C: Variance of 3’ from the required transitional landscape buffer
to the northern R-15 zoned property per Section 5.4.3, Transitional Buffer
Standards, of the New Hanover County Unified Development Ordinance.
LOCATION: 5406 Castle Hayne Rd
PID: R01113-008-002-000
ZONING: R-15, Residential District
ACREAGE: 0.82 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
The applicant is requesting a variance related to the interior side setback and transitional buffer with the
eventual goal to rezone the existing residential structure into a commercial Bar/Nightclub, or “bottle shop”
and Outdoor Recreation Establishment defined by the Unified Development Ordinance (UDO):
Bar/Nightclub
A non-restaurant establishment that generates more than 49 percent of its quarterly gross receipts from
the sale of alcoholic beverages for on-premises consumption. Bars and nightclubs may provide live
music (bands) and other music, dancing, and games of skill such as pool or darts for use by the patrons
of the establishment.
And
Outdoor Recreation Establishment
Uses that provide commercial recreation or amusement outdoors (except adult entertainment), including
but not limited to: drive-in movie theater, amusement park or theme park, fairgrounds, miniature golf
establishments, golf driving ranges, water slides, and batting cages.
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
BOA-993 Page 2 of 7
This transition to the proposed use is contingent upon the successful rezoning of the property from an R-15,
Residential District to a B-2, Regional Business District. Per the UDO’s Principal Use Table, the proposed
uses will be permitted by right in the B-2 district.
This set of variance requests stems from the applicant’s desire to rezone the property from R-15 to B-2.
The existing building on the property predates zoning. A rezoning to B-2 would render the building
nonconforming due to required setbacks and transitional buffers where B-2 properties abut residential
properties, in this case the R-15 zoning to the north and south. See below for an overview of the
applicant’s eventual rezoning request:
Figure 1: Table 4.2.1 Figure 1: Table 4.2.1
Figure 2: Proposed portion of property
anticipated to be requested for rezoning
to B-2.
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
BOA-993 Page 3 of 7
Subject to successfully rezoning the subject property to B-2, the existing structure will be remodeled with
the intent to serve as the bottle shop. Properties zoned B-2 require a minimum 30’ side setback from
residentially zoned properties, and under the proposed rezoning, the B-2 zoned structure would only be
22’ from the residential zoning boundary to the south, which has been determined should be considered
the same as a parcel boundary to avoid future nonconformities. The B-2 district also requires a minimum
15’ transitional landscaping buffer (50% of required setback) with fence to any adjacent residentially
zoned property. The applicant has already applied for and received a variance to the side setback on
the northern property line, reducing that setback from 30’ to 12.3’, through Variance case BOA-976. After
further consideration of the site design after the initial variance request, the applicant and staff determined
that additional variances were necessary to accommodate this transition subsequent to the potential
approval of the rezoning request.
Variance Request C: 3’
from the 10’
Transitional Buffer
Variance Request B: 4’
from the 15’
Transitional Buffer N
Variance Request A:
22’ distance from R-15
property to the South, 30’
of side setback is required.
Figure 3: Applicant's Site Plan with Staff Markups Showing
Requested Variances
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
BOA-993 Page 4 of 7
Variance Request A: The applicant is proposing a variance to Table 3.1.3.C.1 of the UDO which would apply to
the site should it be zoned B-2:
Figure 4: Table 3.1.3.C.1
With a rezoning of the property to B-2, the setback between the proposed bottle shop and the residential
zoning boundary to the south will be required to be no less than 30’. Thus, the applicant is requesting a
variance of 8’ from the required side setback. If the variance is approved, the side setback would be 22’.
Variance Requests B & C: The applicant is also requesting variances to the requirements for transitional
landscaping buffers. All commercial development is required to install transitional buffers where the
commercial parcel abuts a residential use. This can be a minimum of 15’ (50% of the required 30’ setback)
provided that the applicant installs a fence and at least one row of vegetation.
Figure 5: Table 5.4.3.B.1
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
BOA-993 Page 5 of 7
Figure 6: Table 5.4.3.B.2
Because there is already a variance granted to the side setback on the northern property line, the
transitional buffer calculations for the northern side are calculated differently. The requirement for a
combination fencing and vegetation buffer is 50% of the minimum required setback or 10 feet, whichever
is greater. See Figure 7 below for calculations:
Northern Side Southern Side w/o
Variance
Southern Side w/
Variance
Required setback 12.3’ (BOA-976) 30’ 22’
50% of minimum required
setback
6’ 15’ 11’
Greater than 10’? No Yes Yes
Resultant transitional
buffer width
10’ 15’ 11’
Figure 7: Table of Transitional Buffer Calculations
The applicant is asking for the transitional buffer width to be a maximum of 7’ in order to accommodate
his HVAC equipment on the northern side and a pedestrian path on the southern side. This equates to a
variance of 3’ on the northern side and 4’ on the southern side, if the variance to setbacks is approved.
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.
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
BOA-993 Page 6 of 7
The subject property consists of 0.82 acres located on the eastern side of Castle Hayne Road and is
currently zoned R-15 Residential District. To the north, the adjacent parcel is zoned R-15. To the south, the
parcel is dual zoned B-2 and R-15. West, across Castle Hayne Rd., the parcels are B-2 and to the east
across Blossom St., the parcels are zoned R-15.
Figure 8: Zoning Map
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
BOA-993 Page 7 of 7
In summary, the applicant is requesting a variance of 8’ to the side setback on the southern side of the
building to accommodate the rezoning of the parcel from R-15 to B-2. The applicant is also requesting
variances from the minimum width of the required transitional landscape buffers as outlined above. The
applicant contends that the variances are 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.
Perry Rd
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Case: BOA-993
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Vicinity Map Address: 5406 Castle Hayne Road
Request of variances from the 30’ minimum side yard setback requirement per Table 3.1.3.C.1 and
from the 10’ required transitional landscape buffer requirement per Section 5.4.3, Transitional Buffer
Standards, of the New Hanover County Unified Development Ordinance.
New Hanover County Zoning Board of Adjustment September 24, 2024
Case: BOA-993 Zoning Map
Address: 5406 Castle Hayne Road
Request of variances from the 30’ minimum side yard setback requirement per Table 3.1.3.C.1 and
from the 10’ required transitional landscape buffer requirement per Section 5.4.3, Transitional Buffer
Standards, of the New Hanover County Unified Development Ordinance.
New Hanover County Zoning Board of Adjustment September 24, 2024
Case: BOA-993 Aerial Map Address: 5406 Castle Hayne Road
Request of variances from the 30’ minimum side yard setback requirement per Table 3.1.3.C.1 and
from the 10’ required transitional landscape buffer requirement per Section 5.4.3, Transitional Buffer
Standards, of the New Hanover County Unified Development Ordinance.
New Hanover County Zoning Board of Adjustment September 24, 2024
MEMBERS OF THE BOARD
William Mitchell, Chair | Michael Keenan, Sr. Vice-Chair
Will Daube | Caleb Rash | Greg Uhl
BOARD ALTERNATES
Jonathan Bridges | 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-993
The Board of Adjustment for New Hanover County, having held a public hearing on September 24, 2024
to consider application number BOA-993, submitted by Douglas Brandon Paluck, applicant and property
owner, a request for a variance from the 30’ interior side yard setback requirement per Table 3.1.3.C.1,
and the 10-15’ transitional landscaping buffer requirements per table 5.4.3.B.1 of the New Hanover
County Unified Development Ordinance (UDO) to use the property located at 5406 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 yard setback requirement per Table 3.1.3.C.1 and the 10-15’
transitional landscaping buffer requirements per table 5.4.3.B.1, 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 the
New Hanover County Unified Development Ordinance to allow an 8’ variance from the 30’ interior side
yard setback required per Table 3.1.3.C.1, a variance of 3’ in the transitional landscape buffer to the
northern residential property per table 5.4.3.B.1, and a variance of 4’ in the transitional landscape buffer
to the southern residential zoning boundary per table 5.4.3.B.1 of the New Hanover County Unified
Development Ordinance be GRANTED/DENIED, subject to the following conditions, if any:
• Approval of the accompanying Conditional Use Request consisting of a rezoning of the
property from an R-15 Residential District to a B-2, Regional Business District.
ORDERED this 24th day of September, 2024.
____________________________________
Chair
Attest:
________________________________
Kenneth Vafier, Executive Secretary to the Board
Per email in file dated 8/29/24, applicant is also asking for a variance of 3' for the northern
and southern transitional buffers to the adjacent R-15 lots. The required transitional buffer
would be 15' in width- the 8' variance would result in 7' wide transitional buffers.
BLOSSOM STREET
AREA
17,945 SQ. FT.
50' PUBLIC R/W
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
CASE: BOA-994
PETITIONER: Cindee Wolf of Design Solutions, applicant, on behalf of B&P of Wilmington, LLC,
property owner.
REQUEST: Variances of 34’ from the 115’ minimum lot width and 5,540 square feet from the
30,000 square foot minimum lot area requirement required per Section 3.2.5.D of
the New Hanover County Unified Development Ordinance.
LOCATION: 6502 Old Bridge Site Road
PID: R01100-003-008-000
ZONING: RA, Rural Agricultural District
ACREAGE: 0.39 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
The applicant is requesting a variance from the minimum lot width and area requirements for a lot in the
RA district in order to record a map of recombination with 6506 Old Bridge Site Road, which is a .85-acre
lot adjacent to this property. The properties are located in the far northern portion of the county between
Old Bridge Site Road and Castle Hayne Road, just south of the Northeast Cape Fear River.
Figure 1: 6506 and 6502 Old Bridge Site Road
6506 Old Bridge
Site Road
6502 Old Bridge
Site Road
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
6502 Old Bridge Site Road is currently non-conforming in both total lot area and lot width. The RA
District standards require a minimum lot size of 30,000 square feet and 115’ in lot width. The current lot
is 16,988 square feet and approximately 40’ in lot width.
The property owner proposes to record a map of recombination with 6506 Old Bridge Site Road, which
is the lot to the north. 6506 Old Bridge Site Road contains 37,026 square feet and exceeds the minimum
lot width, making it conforming with the minimum lot standards for the RA District. Property recombination
is a process for combining portions of previously recorded lots without increasing the total number of
lots. A map of recombination is an exemption to a subdivision of land in both state statute and within the
UDO, provided that total number of lots is not increased and the resultant lots are equal to or exceed the
standards for subdivision design in the local regulations. The definition of Subdivision in the UDO defines
this exemption in subsection (1):
SUBDIVISION
A "subdivision" shall include all divisions of a tract or parcel of land into two or more lots, building
sites, or other divisions when any one or more of those divisions are created for the purpose,
whether immediate or future, of sale or building development, and shall include all divisions of
land involving the dedication of a new street or a change in existing streets; provided, however,
that the following shall not be included within this definition nor be subject to the regulations
authorized by this UDO:
(1)the combination or recombination of portions of previously subdivided and recorded lots
where the total number of lots is not increased and the resultant lots are equal to or exceed
the standards of the County as shown in Article 6: Subdivision Design and Improvements;
(2) the division of land into parcels greater than ten acres where no street right-of-way
dedication is involved;
(3) the public acquisition by purchase of strips of land for the widening or opening of streets
or for public transportation system corridors; or
(4) the division of a tract in single ownership whose entire area is no greater than two (2)
acres into not more than three (3) lots, where no street right-of-way dedication is involved
and where the resultant lots are equal to or exceed the standards of the County as shown in
Article 6: Subdivision Design and Improvements.
(5) the division of a tract into parcels in accordance with the terms of a probated will or in
accordance with intestate succession under Chapter 29 of the General Statutes. [05-03-
2021]
The proposed recombination will result in a lot area of 30,034 square feet and a width of 156’ for
6506 Old Bridge Site Road, maintaining conformity with the district regulations. A lot area of 24,450
square feet and a lot width of 81’ will be the resultant dimensions for 6502 Old Bridge Site Road.
While these dimensions lessen the degree of non-conformity, they still do not meet the resultant minimum
lot standards of 30,000 square feet and 115’ of minimum lot width.
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
Figure 2: Proposed Map of Recombination
Section 3.2.5.D of the UDO prescribes the minimum lot standards for a lot in the RA district with the
minimum lot width being 115’ and the minimum lot area being 30,000 square feet. As the proposed
recombination does not result in both resultant lots meeting the prescribed standards, the recombination
would not be eligible to be recorded as an exemption to the subdivision standards and a variance would
be necessary.
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
Figure 3: RA Dimensional Standards, UDO Section 3.2.5.D
The applicant contends that the variance is necessary to provide an adequate building envelope in order
to develop 6502 Old Bridge Site Road, and to lessen the degrees of non-conformity with respect to the
lot width and area via a map of recombination. Additional information is provided in the submitted
application. In summary, the applicant is requesting variances of 34’ from the 115’ minimum lot width
and 5,540 square feet from the 30,000 square foot minimum lot area requirement in order to record a
map of recombination between the two lots.
VARIANCE REQUEST
BOARD OF ADJUSTMENT
September 24, 2024
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 the 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
four (4) categories above.
MEMBERS OF THE BOARD
William Mitchell, Chair | Michael Keenan, Sr. Vice-Chair
Will Daube | Caleb Rash | Greg Uhl
BOARD ALTERNATES
Jonathan Bridges | 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-994
The Board of Adjustment for New Hanover County, having held a public hearing on September 24, 2024,
to consider application number BOA-994, submitted by Cindee Wolf of Design Solutions, applicant, on
behalf of B&P of Wilmington, LLC, property owner, a request for a variance of 34’ from the 115’ minimum
lot width and 5,540 square feet from the 30,000 square foot minimum lot area requirement required per
Section 3.2.5.D of the New Hanover County Unified Development Ordinance (UDO) to use the property
located at 6502 Old Bridge Site 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 115’ minimum lot width and 5,540 square feet from the 30,000 square foot
minimum lot area requirement required per Section 3.2.5.D 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 variance of 34’ from the 115’ minimum
lot width and 5,540 square feet from the 30,000 square foot minimum lot area requirement required per
Section 3.2.5.D 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 24th day of September, 2024
____________________________________
Chair
Attest:
________________________________
Kenneth Vafier, Executive Secretary to the Board
Page 1 of 5
Variance Application – Updated 05-2021
NEW HANOVER COUNTY_____________________
DEPARTMENT OF PLANNING & LAND USE
230 Government Center Drive, Suite 110
Wilmington, North Carolina 28403
Telephone (910) 798-7165
FAX (910) 798-7053
planningdevelopment.nhcgov.com
ZONING & SUBDIVISION VARIANCE APPLICATION
This application form must be completed as part of a request for a zoning and/or subdivision variance. The application
submitted through the county’s online COAST portal. The main procedural steps in the submittal and review of
applications for a variance are outlined in the flowchart below. More specific submittal and review requirements, as
well as the standards to be applied in reviewing the application, are set out in Section 10.3.11 of the Unified
Development Ordinance.
Public
Hearing
Procedures
(Optional)
Pre-Application
Conference
(Optional)
Community
Information
Meeting
1
Application
Submittal &
Acceptance
2
Planning
Director Review
& Staff Report
3
Public Hearing
Scheduling &
Notification
Advisory Body Review & Action
4
Board of
Adjustment
Hearing &
Decision
5
Post-Decision
Limitations and
Actions
1. Applicant and Property Owner Information
Applicant/Agent Name Owner Name (if different from Applicant/Agent)
Company Company/Owner Name 2
Address Address
City, State, Zip City, State, Zip
Phone Phone
Email Email
Cindee Wolf
Design Solutions
P.O. Box 7221
Wilmington, NC 28406
910-620-2374
cwolf@lobodemar.biz
B & P of Wilmiington, L.L.C.
P.O. Box 764
Castle Hayne, NC 28429
910-777-5078
b.benford@evergreenclearing.com
David B. Benford - President
Page 2 of 5
Variance Application – Updated 05-2021
2. Subject Property Information
Address/Location Parcel Identification Number(s)
Total Parcel(s) Acreage Existing Zoning and Use(s)
3. Proposed Variance Narrative
Subject Zoning Regulation, Chapter and Section
In the space below, please provide a narrative of the application (attach additional pages if necessary).
6502 Old Bridge Site Road 323213.24.3931 [R01100-003-008-000]
Section 11.5 - Change in Kind of Nonconforming Use
0.40 ac. / 17,245 s.f.+/-RA / Vacant
Page 3 of 5
Variance Application – Updated 05-2021
CRITERIA REQUIRED FOR APPROVAL OF A VARIANCE
The Board of Adjustment may grant a variance if it finds that strict application of the ordinance results in
an unnecessary hardship for the applicant, and if the variance is consistent with the spirit, purpose, and
intent of the ordinance. The applicant must explain, with reference to attached plans (where applicable),
how the proposed use meets these required findings (attach additional pages if necessary).
1. Unnecessary hardship would result from 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.
Hardship resulting from personal circumstances, as well as hardships resulting from conditions that area common
to the neighborhood or general public, may not be the basis for granting a variance.
Page 4 of 5
Variance Application – Updated 05-2021
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.
Page 5 of 5
Variance Application – Updated 05-2021
Staff will use the following checklist to determine the completeness of your application. Please verify all of the
listed items are included and confirm by initialing under “Applicant Initial”. Applications determined to be
incomplete must be corrected in order to be processed for further review.
Application Checklist Applicant Initial
󠄀 This application form, completed and signed
󠄀 Application fee: $400 per application
󠄀 Site plan or sketch illustrating the requested variance
󠄀 One (1) hard copy of ALL documents
󠄀 One (1) PDF copy of ALL documents
Acknowledgement and Signatures
By my signature below, I understand and accept all of the conditions, limitations, and obligations of the variance
application for which I am applying. I understand that I have the burden of proving why this application meets
the required findings necessary for granting a variance. I certify that this application is complete and that all
information presented in this application is accurate to the best of my knowledge, information, and belief.
If applicable, I also appoint the applicant/agent as listed on this application to represent me and make decisions
on my behalf regarding this application during the review process. The applicant/agent is hereby authorized on
my behalf to:
1. Submit an application including all required supplemental information and materials;
2. Appear at public hearings to give representation and comments;
3. Act on my behalf without limitations with regard to any and all things directly or indirectly connected with
or arising out of this application; and
4. Provide written consent to any and all conditions of approval.
Signature of Property Owner(s) Print Name(s)
Signature of Applicant/Agent Print Name
Note: This form must be signed by the owner(s) of record. If there are multiple property owners, a signature is
required for each owner of record.
• The land owner or their attorney must be present for the case at the public hearing
CAW
CAW
CAW
CAW
CAW
David B. Benford - President
B & P of Wilmington, L.L.C.
Cynthia Wolf - Design Solutions