HomeMy WebLinkAbout12.10.24 BOA Agenda Packet
December 10, 2024, 5:30 PM
I. Call Meeting to Order (Chair William Mitchell)
II. Adoption of November 12, 2024 Minutes
(Attendees at November Meeting – Chair William Mitchell, Vice Chair Michael Keenan, Will
Daube, Caleb Rash, Michael Sanclimenti, Ed Trice, Greg Uhl)
III. Old Items of Business
IV. Regular Items of Business
Case BOA-995 – Alex Chmiel with Coastal Aquatic Pools, applicant, on behalf of Robert and
Maria Sommer, property owners, is requesting a variance of approximately 30’ from the 75’
minimum conservation resource setback requirement per Section 5.7.4.B.1 of the New Hanover
County Unified Development Ordinance. The property is zoned R-20, Residential District and is
located at 1504 Meridian Terrace.
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
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 November 12,
2024.
Members Present
William Mitchell, Chair
Michael Keenan, Sr., Vice-Chair
Will Daube
Ed Trice
Caleb Rash
Greg Uhl
Michael Sanclimenti
Members Absent
Jonathan Bridges
Ex Officio Members Present
Ken Vafler, Planning Operations Supervisor
Karen Richards, Deputy County Attorney
Lisa Maes, Administrative Coordinator
Marshall Fugate, Administrative Specialist
The meeting was called to order at 5:30 PM by Chair William Mitchell.
FIRST ORDER OF BUSINESS
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
also noted that the Board hears appeals related to the County’s interpretation and
enforcement of the Unifled Development Ordinance, with appellants having thirty days to
appeal any decision to Superior Court.
Attorney Karen Richards provided background on the case to give clarity for future
reference. She stated that pursuant to NC General Statute 160D-1402, Source Contracting
appealed the variance denial decision made on August 27th, 2024 which was based on the
fioodplain elevation criteria. Judge Jensen from Superior Court ruled that the denial was
unsupported by competent, material, and substantial evidence in view of the entire record
and may have been arbitrary or capricious.
The judge ordered the Board to grant the variance. An order, incorporating all special
conditions previously agreed upon, was written in collaboration with Mr. Grady Richardson
and dated October 31, 2024. At this time, the Board needs to make a motion to adopt and
ratify the order from Judge Jensen and then proceed to grant the variance.
MOTION TO ADOPT AND RATIFY ORDER
Motion:
Vice Chair Keenan made a MOTION to adopt and ratify the order per Judge Jensen’s ruling.
This was seconded by Will Daube.
• All in favor: 5 - 0
VARIANCE GRANTING
Following the adoption and ratiflcation of the order, Chair Mitchell called for a motion to
grant the variance, including the four stipulations established in the original case.
Motion:
Chair Mitchell made a MOTION to grant the variance with the four original stipulations. This
was seconded by Will Daube.
• All in favor: 5 - 0
ADOPTION OF 2025 MEETING SCHEDULE
Chair Mitchell presented the proposed 2025 meeting schedule to the Board for adoption.
Motion:
Chair Mitchell made a MOTION to approve the 2025 meeting schedule, seconded by Vice
Chair Keenan.
• All in favor: 5 - 0
Meeting Adjournment:
Chair Mitchell made a MOTION to adjourn the meeting, seconded by Greg Uhl
• All in favor: 5 – 0
Meeting Adjourned
The meeting was adjourned at 5:37pm
Please note the minutes are not a verbatim recording of the proceeding.
Please note the minutes are not a verbatim recording of the proceeding.
_____________________
Executive Secretary
_____________________
Chair
_____________________
Date
BOA-995
Page 1 of 5
VARIANCE REQUEST
BOARD OF ADJUSTMENT
December 10, 2024
CASE: BOA-995
PETITIONER: Alex Chmiel, applicant, on behalf of Robert and Maria Sommer, property owners.
REQUEST: Variance of approximately 30’ from the 75’ Conservation Resource setback requirement
per Section 5.7.4.B (1), Additional Performance Controls, of the New Hanover County
Unified Development Ordinance (UDO).
LOCATION: 1504 Meridian Terrace
PID: R03719-004-037-000
ZONING: R-20, Residential District
ACREAGE: 0.56 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
The applicant is requesting a variance of approximately 30’ from the 75’ conservation resource setback in
order to construct a swimming pool on the subject property proposed to encroach into the conservation
resource setback for a Salt Marsh.
The subject property consists of 0.56 acres off of Meridian Terrace, which is within the Avenel subdivision.
Avenel is located in the northeastern part of the county off Porters Neck Road, just west of the Figure Eight
Island bridge. The subject property lies on the north side of a small tidal creek that branches off from the
Intracoastal Waterway. Conservation resource maps in this area indicated the presence of both Salt Marsh
and Swamp Forest, both of which are designated conservation resources for which the UDO contains
additional performance controls related to setbacks of impervious surfaces and retention of runoff. Field
verification has confirmed the presence of only the Salt Marsh resource on the site.
Figure 1: Site Location map. Refer to Figure 2 for field-verified locations.
To
Intracoastal
Waterway
General Area of Conservation
Resource
Meridian Terrace
Site
BOA-995
Page 2 of 5
The applicant is proposing the construction of a swimming pool in the rear yard. The 13’ x 26’ pool is
proposed to encroach into the conservation resource setback by approximately 30’ on the west side, and
25’ on the east side (see Figure 2). In total, approximately 338 square feet of the pool is proposed to
encroach into the conservation resource setback and 400 square feet of pervious apron is proposed on
two sides of the pool.
Figure 2: Proposed Site Plan with staff markups.
75’ Conservation
Resource Setback
Landward Extent
of Conservation
Resource
Proposed
Pool
Approximate 25’
Encroachment
Approximate 30’
Encroachment
To
Intracoastal
Waterway
BOA-995
Page 3 of 5
Although the water surface of the pool is considered pervious, pools are considered Structures as defined
by the UDO, as they are typically constructed within a fixed location on the ground:
STRUCTURE
Anything constructed or erected within a fixed location on the ground, or attached to something having
a fixed location on the ground. The term structure shall be construed to include buildings, porches,
decks, carports, garages, sheds, roof extensions, overhangs extending more than two inches, and any
other projections directly attached to the structure. For purposes of Section 5.10, Airport Height
Restriction, a structure is any object, including a mobile object, constructed or installed by man,
including, but without limitation, buildings, towers, cranes, smokestacks, earth formation, and overhead
transmission lines. This definition does not apply to the provisions of Article 9: Flood Damage
Prevention; for that meaning, see Section 9.5: Definitions.
Section 5.7.4 of the UDO contains performance controls on conservation resources that govern development
within or adjacent to them. Specifically, Subsection B.1 requires all structures and impervious surfaces to
be set back a minimum of 75’ from a salt marsh:
5.7.4. ADDITIONAL PERFORMANCE CONTROLS
In addition to the general performance controls specified in Section 5.7.3, Conservation Space
General Performance Controls, additional controls shall be required to protect certain
conservation resources in certain zoning districts. Table 5.7.4: Additional Performance
Controls, lists for each conservation resource and type of district (residential or non-residential
and mixed use), the reference number of the group of additional controls that shall be required.
Requirements for each group are set forth in subsections A through D, following the table. If
the parcel being developed is associated with two or more conservation resources with
conflicting performance controls, then the most restrictive controls shall apply. However,
improvements as specified in Section 5.7.3.D, Improvements, may be permitted within the
conservation space setbacks. Additionally, decks may be allowed to encroach into the
conservation space setback up to six feet provided they are uncovered and constructed so that
the floorboards are spaced to allow water to flow through directly to the ground. The ground
below the deck shall be either left undisturbed or planted with ground cover or other vegetation.
B. Group 2 Performance Controls
1. Conservation Space Setbacks
All structures and impervious surfaces shall be setback from the conservation space, if any,
whether the space is located on the parcel or on an adjacent parcel, a distance of at least 75
feet.
BOA-995
Page 4 of 5
The applicant has detailed the basis for their request within the submitted application materials. In
summary, the applicant is requesting a variance of approximately 30’ from the 75’ setback for structures
and impervious surface as required in Section 5.7.4 Additional Performance Controls to allow encroachment
of the proposed pool into the conservation resource setback area.
BOA-995
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-995
The Board of Adjustment for New Hanover County, having held a public hearing on December 10, 2024,
to consider application number BOA-995, submitted by Alex Chmiel with Coastal Aquatic Pools, applicant,
on behalf of Robert and Maria Sommer, property owners, a request for a variance approximately 30’ from
the 75’ minimum conservation resource setback requirement per Section 5.7.4.B.1 of the New Hanover
County Unified Development Ordinance (UDO) to use the property located at 1504 Meridian Terrace 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 75’ minimum conservation resource setback requirement per Section 5.7.4.B.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 variance of approximately 30’ from the
75’ minimum conservation resource setback requirement per Section 5.7.4.B.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 10th day of December, 2024
____________________________________
Chair
Attest:
________________________________
Kenneth Vafier, Executive Secretary to the Board
PROPOSED VARIANCE NARRATIVE:
We,The Sommer Family are requesting a variance to encroach approximately 30’into
the 75’COD Setback to install a small 13’x 26’swimming pool.We purchased the
home in November 2020.After seeing the property for the first time we fell in love with
the home due to its location and very large backyard.We purchased our home with the
intention of installing a swimming pool for our family.After starting the building permit
process in September,we have been informed of the 75’COD setback.Due to how our
property is zoned,unlike most water/marsh zoning classifications in New Hanover
County,there is no mitigation that allows encroachment into the setback for a swimming
pool.
We consider it a hardship that the only location in the backyard outside of the 75’
setback to install a pool has a well that was existing when we purchased the home.
Due to our circumstance,we are kindly asking for a variance to encroach into the
setback.
Answer to Sommer Variance Questions
1.We purchased our home with the intent of installing a swimming pool as we had
done with our previous home.We consider it a hardship that we will not be able
to enjoy outdoor time with our family nor host our family holiday gatherings as we
had envisioned doing when we purchased the home.
2.A Majority of our property is outside of the flood zone.The zoning classification
of our property is such that there is a 75’COD setback that has no mitigation into
the setback for swimming pools.This is different from the much more common
AEC setback which allows encroachment into the setback for swimming pools
anywhere from 37.5’to 42’.The more common AEC setback is seen in much
more fragile environmental areas such as the conservation resource zone,and
properties with canals and other waterways.
3.When we purchased the property in November 2020 We were never informed a
swimming pool would not be permitted due to the zoning classification.Our
property is over ½of an acre with the majority of the property outside of the flood
zone.We would have not purchased the property with the knowledge a
swimming pool would not be permitted.The only location in our backyard that a
pool would be permitted has a well that was existing when we purchased the
property.
4.We believe Our variance request is consistent with the spirit and intent of the
ordinance.One assumes that the spirit and intent of the 75’setback is to be
noninvasive and conserve the wetlands.According to the survey,The swimming pool
we are proposing would encroach an average of approximately 30’or less into the COD
setback leaving the swimming pool an average of 45’or more away from any wetlands..
This encroachment we are asking for is less of an impact/encroachment when
compared to what is allowed for the more common AEC setbacks in more
environmentally fragile areas.In our opinion The swimming pool would have no impact
on the wetland and there would be no runoff during rain events.Our proposed
swimming pool would have surrounding barriers and gates up to NHC code and would
have no impact on the safety of the public