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HomeMy WebLinkAbout11.12.24 Agenda Packet November 12, 2024, 5:30 PM I. Call Meeting to Order (Chair William Mitchell) II. Adoption of September 24, 2024 Minutes (Attendees at September Meeting – Chair William Mitchell, Vice Chair Michael Keenan, Will Daube, Ed Trice) III. Old Items of Business IV. Regular Items of Business Case BOA-991 – Ratification of Variance as Directed by the North Carolina Court of Appeals V. Other Business Adoption of 2025 Regular Meeting Schedule 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 BOARD OF ADJUSTMENT  The New Hanover County Board of Adjustment held a regular and duly advertised meeting at 5:30 PM at the New Hanover County Government Center Complex, 230 Government Center Drive, in Conference Room 139, in Wilmington, NC on Tuesday September 24, 2024.  Members Present  William Mitchell, Chair Michael Keenan, Sr., Vice-Chair  Will Daube  Ed Trice  Members Absent  Michael Sanclimenti  Jonathan Bridges Caleb Rash  Greg Uhl  Ex Officio Members Present   Ken Vafler, Planning Operations Supervisor  Karen Richards, Deputy County Attorney Lisa Maes, Administrative Coordinator    The meeting was called to order at 5:30 PM by Chair William Mitchell. FIRST ORDER OF BUSINESS Chair 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 Unifled Development Ordinance. The appellants have thirty days in which to appeal any decision made by the Board to Superior Court. Mr. Vafler made an announcement to the board members and applicants that before we proceed with the applications, please note that a 4/5 vote is required to grant the variance. Currently, we only have four members present, which means the vote would need to be unanimous for the variance to be approved. Given this situation, it is propose continuing the matters to next month when a full board may be present. However, we want to conflrm whether the applicants would prefer to move forward with the vote today under these conditions. Mr. Vafler stated that we were not initially aware that we would be missing any board members today, which affects the voting requirements. All applicants decided to move forward to have the board review their requests. Chair Mitchell asked if there were any corrections to the last meeting’s minutes. Chair Mitchell called for a motion to accept the August 27, 2024, meeting minutes as written or with noted changes. Mr. Trice made the motion to approve the minutes as written to which Mr. Daube seconded. The board unanimously adopted the minutes.  Chair Mitchell swore in Planning Operations Supervisor Ken Vafler, Senior Planner Zack Dickerson, applicants Jose A. Cruz Godinez, Brandon Paluck, and Cindee Wolf, and public speaker Jayne Smith. Case BOA 992: Variance Request for 509 Hermitage Road The Board considered a variance request for the property at 509 Hermitage Road, where the applicant sought relief from a three-year restriction on development approvals imposed under Section 5.3.2B of the Unifled Development Ordinance (UDO). This restriction was for unauthorized tree removal on the 2.93-acre parcel without obtaining the necessary permit. The property is located near the eastern end of Hermitage Road, approximately one mile east of its intersection with Castle Hayne Road, in an area characterized by a mix of developed commercial properties and heavy industrial zoning. An investigation by county zoning staff found that tree clearing had taken place on the property without the required tree removal permit, resulting in most of the trees being cut down and leaving large piles of logs on-site. According to Section 5.3.5 of the UDO, tree removal permits are required for the removal of regulated trees, unless a waiver is granted. In this instance, no permit or waiver had been obtained prior to the clearing. A tree removal permit was subsequently applied for on June 20th, accompanied by a tree inventory showing the removal of approximately 35 pine trees, 11 sweetgum trees, and 30 crape myrtle trees. The inventory conflrmed that no signiflcant trees, deflned as those requiring special mitigation, were affected. The unauthorized clearing resulted in a violation that warranted the standard three-year withholding of development approvals, as specifled in Section 5.3.2B of the UDO. Without a variance, the property would remain ineligible for any development-related approvals, such as building permits, site plans, or subdivision plans, throughout the three-year period. Applicant’s Request The applicant, Mr. Cruz Godinez, requested a variance to waive or reduce the three-year withholding period in order to use the site as a contractor’s laydown yard for landscaping equipment, with no immediate plans to construct a building in the next three to flve years. His justiflcation for the request included several points: First, the applicant attributed the issues to contractor negligence, explaining that the hired contractor failed to obtain the necessary permits and subsequently abandoned the project, leaving him to address the violations. Second, the applicant demonstrated a willingness to comply with county landscaping standards, including replanting or retaining at least 15 trees per acre. Finally, Mr. Godinez highlighted the business impact, stating that without the variance, he would be unable to sustain business growth or maintain employment for over 10 workers. Public Comments Mr. Vafler stated that an adjacent property owner submitted an objection via email, expressing general opposition to the variance but not providing speciflc grounds for the objection. Chair Mitchell asked the board if there were any further questions. Chair Mitchell asked if there was anyone in opposition. Chair Mitchell closed the public hearing PUBLIC HEARING CLOSED Board Discussion Board members discussed several aspects of the request, including mitigation requirements, precedent and ordinance limitations, and potential conditions. Staff clarifled that no mitigation would have been required if the permit had been obtained beforehand, as there were no signiflcant trees identifled in the inventory. The board members noted that the UDO did not allow for post- clearing permits to be issued, and the language of the ordinance did not offer fiexibility in these cases. They also considered imposing a condition that no vertical construction could take place on the property for the duration of the three-year period, to which the applicant agreed. Chair Mitchell asked if anyone has a motion they wanted to make. Mr. Keenan made a MOTION to APPROVE of the variance request, allowing the applicant to proceed with development under the condition that no vertical construction would be permitted for three years. The motion included acceptance of the flndings of fact and acknowledgment that the applicant could lay gravel, landscape, and fence the property but could not erect permanent structures. SECONDED by Board Member Mr. Daube. The motion to recommend approval of the variance passed 4-0, and the decision was based on the following conclusions and flndings of fact: 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 result. This conclusion is based on the following FINDINGS OF FACT: • If the variance is not granted, the applicant will not be able to continue growing his company, Brothers Landscaping and Design. • The applicant is willing to correct the mistake caused by the hired professional. As this was the applicant’s flrst time purchasing land and hiring a tree clearing contractor, he relied on this professional to clear the land. • The property was to be used as a laydown yard for trucks and equipment. Without the variance, it will be difficult to continue growing and help the community as planned. • It will be difficult for the applicant to continue to pay for a property for three years without be able to utilize it as paying for the property is less expensive than paying rent for a laydown yard of this size. 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 site is only suitable for the particular use of parking and a laydown yard as it is zoned industrial and did not pass a soils percolation test. • The intention is to retain the property and use it as a parking and laydown yard since there is no wastewater service on site and it will not be able to be built upon anytime soon. • If the applicant cannot use this property, it lacks a viable use, at this time the applicant cannot develop office/fiex space due to the lack of percolation. 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 actions that led to the clearing were predicated on a misunderstanding of the required permit. The applicant relied upon a tree contractor to obtain all required permits. • The applicant has documentation instructing Nelson Coastal Construction to stop work to obtain the necessary permits; the applicant did not stop work and did not complete the job. • The applicant has submitted an application for land disturbance and other erosion control measures have been put in place such as silt fencing, seeding, and straw. 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 applicant will continue to cooperate with the county to provide the proper documentation to remain in compliance. The applicant has submitted all proper documentation for a permit including a tree survey and erosion control measures and is working with an engineer to work on stormwater requirements. • The applicant is willing to pay for any mitigation fees, installation of plants and trees, or other measures the county requires to obtain approval of a laydown yard. If the variance is granted the applicant will develop the best use for the property as there is not wastewater available to the site. • The applicant will obtain all necessary permits to develop the property with the proposed use. • The applicant’s willingness to comply has been demonstrated. The request was also granted with the following condition: • The development of the property prior to the expiration of the 3-year withholding of permits on July 1, 2027, shall not include any permanent, fixed, vertical structure. Case BOA 993: Variance request for 5406 Castle Hayne Road The Board considered a variance request for the property at 5406 Castle Hayne Road, seeking reductions in the interior side setbacks and modiflcations to the transitional landscape buffer requirements outlined in the Unifled Development Ordinance (UDO) for commercial properties adjacent to residential zones. Currently zoned R-15 (Residential), the property is surrounded by a mix of R-15 and B--2 (Commercial) parcels. The proposal involves developing a bottle shop and mini-golf course on the site, necessitating the rezoning of part of the property to the B-2 district. The applicant requested three speciflc variances to facilitate the development: 1. Variance A: A reduction in the required 30-foot interior side setback from residential zoning to 22 feet, resulting in an 8-foot variance. 2. Variance B: A reduction in the required 15-foot transitional landscape buffer on the southern side of the property to 7 feet, to accommodate a walkway for the mini-golf course. 3. Variance C: A reduction in the required 10-foot transitional landscape buffer on the northern side to 7 feet to provide clearance for existing HVAC equipment. The northern side had previously been granted a variance under BOA Case 976. The property is currently zoned R-15 but is located near predominantly commercial (B-2) areas, with a rezoning request to B-2 anticipated to enable the proposed development. The site includes a building that predates current zoning regulations and is situated 22 feet from the property line, falling short of the 30-foot side setback requirement. Additionally, an HVAC unit is located near the northern property boundary. The UDO specifles a 30-foot setback for buildings in commercial zones that are adjacent to residential properties and mandates a minimum landscape buffer width equal to 50% of the setback (15 feet) or 10 feet, whichever is greater. Due to a previous variance, the northern side's buffer requirement was set at 10 feet. Approval of the requested variances would enable the applicant to proceed with the site development while addressing the constraints posed by the existing building's location. The variances would also allow for a practical buffer solution that accommodates neighboring residential properties while supporting the proposed commercial use of the site. Applicant’s request The applicant, Mr. Brandon Paluck, presented several reasons for his variance requests to the board. First, the existing building predates zoning regulations, and the property line runs through the middle of his house, making compliance difficult. Additionally, the property has a limited buildable area due to existing structures and site constraints, and the requested variances would allow for more practical use of the space, including room for a walkway for a mini-golf course. Lastly, the applicant noted that as a neighbor to the site, he does not view the proposed variances as a nuisance and has no objections. Public Comments Jayne Smith, a neighboring property owner, expressed concerns about the potential impact of the development. She raised issues related to liability if people were to park on her property and the potential for trespassing. Additionally, she voiced concerns about safety due to the presence of a large tree and a septic tank on her property. As a proposed solution, the applicant committed to installing a fence along the shared property line to prevent access to Jayne's property. This fence would run from the front to the back of the property, enclosing the area and reducing the likelihood of trespassing. Chair Mitchell asked the board if there were any further questions. Chair Mitchell closed the public hearing PUBLIC HEARING CLOSED Board Discussion Board members deliberated on several points, including compliance with buffer and setback standards, neighbor concerns, and zoning considerations. The proposed variances would allow development while accommodating existing site conditions, with the board considering the practicality of the requested setbacks given the existing building's location. Neighbor concerns were also discussed, including the requirement to install a fence and potential mitigation of parking issues. It was noted that if the neighboring property were zoned B2, the setback requirements would not apply, which infiuenced the board's consideration of the variances. Chair Mitchell asked if anyone has a motion they wanted to make. Mr. Trice made a MOTION to RECOMMEND APPROVAL of the variance request, with the following conditions: • A fence must be installed along the shared property line, extending from Castle Hayne Road to the back of the property to ensure no access from the neighbor's lot. • The site development must comply with all other applicable landscaping and buffering requirements as outlined in the UDO. • 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. The motion was SECONDED by Board Member Mr. Keenan and passed 4-0, with the decision based on the following conclusions and flndings of fact: 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 result. This conclusion is based on the following FINDINGS OF FACT: • The applicant feels this property should be rezoned to a commercial district similar to other properties on Castle Hayne Road. • Without the variance, the property would be underutilized. • It is in the County’s Land Use Plan that this property should be commercial, and the current ordinance is restricting that. 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 property is unique with a 1940’s home and includes a 250-year-old tree in the front; the applicant believes it would be a good place for a bottle shop. • There is not a similar business nearby and as the area is growing, the applicant senses a need for the business. 3. It is the Board’s conclusion that the hardship did result from actions taken by the applicant or the property owner. This conclusion is based on the following FINDINGS OF FACT: • The existing house was built in 1943, and setbacks were not enforced at the time, thus resulting in the house being too close to the property line for a business use. 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 variance is in line with the County’s Land Use Plan. The request was granted with the following conditions: • A fence must be installed along the shared property line, extending from Castle Hayne Road to the back of the property to ensure no access from the neighbor's lot. • The site development must comply with all other applicable landscaping and buffering requirements as outlined in the UDO. • 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. Case BOA 994: Variance Request for Minimum Lot Width and Area – 6502 and 6506 Old Bridge Site Road The Board reviewed a variance request for the properties at 6502 and 6506 Old Bridge Site Road The applicant sought variances from the minimum lot width and area requirements in the Residential Agricultural (RA) District to facilitate a proposed map of recombination. These properties are located just south of the Northeast Cape Fear River in the northern part of the county. The Board reviewed a variance request for the properties at 6502 and 6506 Old Bridge Site Road. The applicant sought variances from the minimum lot width and area requirements in the Residential Agricultural (RA) District to facilitate a proposed map of recombination. These properties are located just south of the Northeast Cape Fear River in the northern part of the county. The property at 6502 Old Bridge Site Road covers 0.39 acres (approximately 17,000 square feet) with a lot width of around 40 feet, which does not conform to RA District standards requiring a minimum lot area of 30,000 square feet and a minimum lot width of 115 feet. In contrast, the property at 6506 Old Bridge Site Road spans 0.85 acres (approximately 37,000 square feet), meeting the RA District's lot width and area requirements, and is situated directly north of 6502. The applicant requested the following variances: • A reduction of 34 feet from the 115-foot minimum lot width requirement. • A reduction of 5,540 square feet from the 30,000-square-foot minimum lot area requirement for 6502 Old Bridge Site Road The proposed recombination would involve transferring a portion of land from 6506 to 6502 Old Bridge Site Road, increasing 6502’s total lot area to 24,450 square feet with a lot width of 81 feet. Following this adjustment, 6506 Old Bridge Site Road would still conform to RA District standards, while 6502 would be closer to compliance but would not fully meet the district's minimum requirements. The properties’ current nonconforming status, especially 6502’s signiflcant deviation from the RA District's minimum lot size and width, necessitates the variance. A map of recombination, which combines parts of previously recorded lots without increasing the number of lots, was proposed but does not qualify for exemption from the requirements, as the recombined lots would still not meet the RA District standards. Therefore, a variance is required to allow the recombination to proceed. Applicant’s Request Mr. David Binford, along with agent Ms. Cindee Wolf, presented several reasons for their variance request to the board. First, the lot at 6502 Old Bridge Site Road, created in 1998, has been nonconforming since its creation, and the property faces signiflcant challenges due to its narrow width, fioodplain issues, and lack of public sewer services, making development difficult. The property also requires both a septic system and well, as there are no public utilities available, and a soil test has been conducted for a three-bedroom septic system. Additionally, the rear portion of the property slopes into the fioodplain, further limiting the usable land for development. The intent of the variance request is to allow a recombination that would create a viable lot for building a new home, while maintaining two lots—one with an existing home and the other designated for new construction. This recombination would reduce the nonconformity of the property and provide a practical solution for the development of a single-family residence. Public Comments An adjacent property owner submitted an objection via email, which was shared with the board. Concerns over driveway access were also raised. The proposed plan would utilize an existing driveway that runs down the current property line. It was noted that both lots would have driveway access, and any future agreements on shared access would be a civil matter. Chair Mitchell asked the board if there were any further questions. Chair Mitchell closed the public hearing PUBLIC HEARING CLOSED Board Discussion The board members discussed several topics regarding the variance request. They noted that the variance would allow development while maintaining adherence to the setbacks and other zoning requirements, improving the nonconformity but not fully meeting the RA District's standards. The applicant's plan includes building a new home on 6502 Old Bridge Site Road, potentially for a family member. Additionally, they mentioned that the recombination could not proceed under current exemptions without the variance due to the failure to meet minimum lot size and width requirements. Chair Mitchell asked if anyone has a motion they wanted to make. Mr. Keenan made a MOTION to APPROVE of the variance request, allowing the recombination of 6502 and 6506 Old Bridge Site Road with the specifled variances. SECONDED by Board Member Mr. Daube. The motion to recommend approval of the variance passed 4-0, with the decision based on the following conclusions and flndings of fact: 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 result. This conclusion is based on the following FINDINGS OF FACT: • The narrowness of the existing parcel leaves an extremely “pinched” building envelope when the twenty-foot (20’) side yard setbacks are applied. • The enlargement of the parcel by the proposed recombination would allow an adequate building envelope without need for variances to the setbacks. 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 narrowness of the existing parcel is the peculiar factor of size affecting the need for either variances to the side setbacks or the proposed enlargement of the parcel. • The parcel location is also a factor because there are no public utilities for water and sewer service. Home construction must rely on a private well and septic system which take up an appreciable area of the smaller parcel. 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 vacant parcel existed in its nonconforming status when purchased. • Anyone desiring to build a residence on the parcel would face the same issues. 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: • Allowing the existing non-conforming parcel to be enlarged would allow use variances to the district setbacks. • Decreasing the non-conformity would have no impact on public safety. • Substantial justice would certainly be achieved for the owner to construct a residence. There being no further business before the Board, it was properly moved by Chair Mitchell to adjourn. MEETING ADJOURNED Please note the minutes are not a verbatim recording of the proceeding. 2025 Board of Adjustment Meeting Dates January 28th – Deadline December 16, 2024 February 25th – Deadline January 15, 2025 March 25th – Deadline February 17 April 22nd – Deadline March 17 May 27th – Deadline April 15 June 24th – Deadline May 15 July 22nd – Deadline June 16 August 26th – Deadline July 15 September 23rd – Deadline August 15 October 28th – Deadline September 15 November 12th – Deadline October 1 December 9th – Deadline November 3 * Meetings will be on the 4th Tuesday of each month but moved to the 2nd in November and December to account for Holidays. Meetings begin at 5:30 PM and are held in room 139 at the New Hanover County Government Center, unless otherwise noted. 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