Loading...
HomeMy WebLinkAboutBOA 6-24-2025 Agenda Packet June 24, 2025, 5:30 PM I. Call Meeting to Order (Chair Michael Keenan, Sr.) II. Adoption of May 27, 2025 Minutes (Attendees at May Meeting – Chair Michael Keenan, Jonathan Bridges, Will Daube, Laura King, Greg Uhl) III. Old Items of Business IV. Regular Items of Business Case BOA-997 – Earic Gayfield, applicant, on behalf of St. James AME Church, property owner, is requesting a variance from the height and illumination requirements for a freestanding sign per Section 5.6.2.J.3 of the New Hanover County Unified Development Ordinance. This property is zoned R-20, Residential and is located at 3425 Castle Hayne Road. V. Other Business VI. Adjourn MEMBERS OF THE BOARD Michael Keenan, Sr. Chair | Caleb Rash Vice-Chair Will Daube | Laura King | 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 MINUTES  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 May 27, 2025.  Members Present Michael Keenan, Chair Will Daube Greg Uhl Laura King Jonathan Bridges Ed Trice (alternate) Members Absent Caleb Rash, Vice-Chair Michael Sanclimenti Ex Officio Members Present Ken Vafier, Planning Operations Supervisor Karen Richards, Deputy County Attorney Bruce Gould, Administrative Specialist The meeting was called to order at 5:30 PM by Chair Michael Keenan. Chair Keenan explained that the Board of Adjustment is a quasi-judicial Board appointed by the Board of Commissioners to consider ordinance variances from residents in New Hanover County where special conditions would create unnecessary hardships. He said the Board also hears appeals of the County’s interpretation in enforcement of the Unified Development Ordinance. The appellants have thirty days in which to appeal any decision made by the Board to Superior Court. Chair Keenan asked if there were any corrections to the last meeting’s minutes. Hearing none, Chair Keenan called for a motion to accept the April 22, 2025, meeting minutes as written. Mr. Uhl made the motion to approve the minutes to which Mr. Daube seconded. The board unanimously adopted the minutes. CASE BOA-999 Chair Mitchell swore in Planning Operations Supervisor Ken Vafier, Susan Keelin, the applicant’s attorney, and John & Carol Ford, property owners. Mr. Vafier presented the staff report on the case. He explained that the applicant is requesting a variance from the 75’ conservation resource setback to construct a swimming pool on the subject property proposed to encroach into the conservation resource setback for a Salt Marsh. Mr. Vafier stated that the subject property consists of 0.44 acres off S. Seabreeze Road, which is in the southern part of the county off Carolina Beach Road, just north of the Snows Cut Bridge. The subject property lies immediately west of the Intracoastal Waterway. Conservation resource maps and field verification in this area indicate the presence of a Salt Marsh, which is a designated conservation resource for which the UDO contains additional performance controls related to setbacks of impervious surfaces and retention of runoff. Mr. Vafier stated the applicant is proposing the construction of a swimming pool in the rear yard. The pool is proposed to encroach into the conservation resource setback by approximately 16.7’ on the east side with approximately 276 square feet in area of the pool within the conservation resource setback. There is a proposed 682 square foot pervious apron around the pool, but not all this area is within the resource setback due to the irregular nature of the setback contour. Site plans were then shown, depicting the proposed location of the pool with the boundary of the setback area shown. He explained the abrupt end of the regulated setback at its landward extent due to the unique condition on the adjacent parcel with the salt marsh stopping at the 90-degree angle. He concluded his presentation by reiterating that the applicant was seeking a variance from the 75’ conservation resource setback to construct a swimming pool. Mr. Vafier asked the Board if they had any questions and stated that Susan Keelin, applicant attorney, and John & Carol Ford, owner, were present and available. Chair Mitchell asked the Board if they had any questions for staff. Hearing none, the applicant was given the opportunity to present. Susan Keelin, applicant attorney proceeded to enter into the record the following narrative. On behalf of the Owner, the Applicant seeks a variance from the 75’ COD setback requirement set forth in New Hanover County Unified Development Ordinance Section 5.7.4 B(1) for construction of an in-ground swimming pool on the property. The property is described as “Lot 1, Block A of Recombination of Seabreeze Holdings Property” as shown on a plat recorded January 14, 2013 in Plat Book 57 at Page 272 of the New Hanover County Registry. This 2013 plat shows a Normal High-Water Line approved by Local Government Official, a Coastal Wetland Line, a 404 Wetland Line, and a 75’ COD setback line. The plat was signed by New Hanover County Review Officer Sam Burgess and by Planning Director Chris O’Keefe. In 2015, New Hanover County issued a building permit for construction of a single-family residence on the property. On April 2, 2015, Registered Land Surveyor Bob Jones prepared a map of survey that shows the 75’ COD setback line on the property in the same location as shown on the 2013 plat. The 2015 survey shows an existing piling foundation for the residence then under construction. The foundation is located wholly outside of the 75’ COD setback. In late 2024, the Owner submitted a building permit application for an in-ground swimming pool. After various on-site meetings with the surveyor and New Hanover County Planning Department staff extending into early 2025, it was ultimately determined that the conservation resource line, and hence the 75’ COD setback line, had moved drastically from its 2013 and 2015 location, and that a variance would be required before a building permit could be issued for the proposed swimming pool. If the pool that is proposed today had been built in 2015 when the house was constructed, it would have been outside the 75’ COD setback, and a variance would not have been required. This request is for a variance from UDO Section 5.7.4 B(1) sufficient to allow construction of a swimming pool in the location shown on the survey by Bob Jones dated March 25, 2025. Attachments: Plat recorded in Plat Book 57 at Page 272, N.H. Co. Registry dated January 14, 2013 Survey of property by Bob Jones dated April 2, 2015 Survey of property by Bob Jones dated March 25, 2025 Ms. Keeling then entered into the record the following Criteria relative the Findings of Facts of the application. Criteria 1. Unnecessary hardship would result from strict application of the ordinance. If the Owner complies with the literal terms of Section 5.7.4 B(1) of the UDO, an unnecessary hardship would result because only a narrow strip of property within the lot is outside the 75’ COD setback. Under a strict application, buildable area is severely restricted to the point that virtually not even a residence could be built on the lot today, much less a swimming pool. Criteria 2. The hardship results from conditions that are peculiar to the property, such as location, size or topography. The newly established resource conservation line, and thus the 75’ COD setback line, bifurcates the property in a nearly west to east direction near the northern property line. As a result, nearly the entire lot - including the existing single-family residence - is now located inside the setback. This condition and hardship are peculiar to the Owner’s property. Criteria 3. The hardship did not result from actions taken by the applicant or the property owner. The hardship did not result from the actions taken by the property owner. The developer of the neighborhood created the lot configuration and size. When the lot was placed in 2013 in Plat Book 57 at Page 272 of the New Hanover County Registry, the conservation resource line was significantly water ward of its current location as flagged by New Hanover County personnel on February 25, 2025. The proposed location of the pool would have fit on the owner’s property in 2013 without a variance. It is only because of the change in location of the conservation resource line since the lot was placed that a variance is needed. Criteria 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. The requested variance is consistent with the spirit, purpose and intent of the ordinance. The New Hanover County UDO, Section 5.7 - Conservation Resources - states the purpose is to protect important environmental resources in the County. No portion of the proposed pool is located inside any conservation resource area or inside any CAMA area of environmental concern. As such, this variance is consistent with the purpose of protecting important environmental resources, does not negatively impact public safety, and achieves substantial justice. Chair Keenan asked if there were any speakers in opposition. With there being none, Chair Keenan closed the public hearing. PUBLIC HEARING CLOSED BOARD DELIBERATION General discussion of the board revolved around the changes that occurred between the 2012 and 2025 documentation and the changes to the boundary of the conservation area and subsequent changes to the COD setback. No definitive explanation was determined but it was noted that the aerial photography showed a change to the salt marsh area that would have impacted the current extent of salt marsh area and delineation of the protected area. It was also discussed that with the proposed location of the pool the preservation of a large tree on site would be accommodated. The Board discussed that a surveyor had provided two sealed documents showing the change of the setback boundary and noted a significant change to that boundary Impacting the buildable area of the lot. The Board also discussed a fence that was visible on the aerial photography on an adjacent lot. It was noted this fence had created a new boundary to the salt marsh which impacted the salt marsh and its area. The Board further discussed that with the proposed location of the pool a large tree would be preserved. Chair Keenan made a MOTION to APPROVE the variance request as written and to adopt the applicant submitted findings as their own with the added items discussed. SECONDED by Mr. Daube. The motion to approve variance request BOA-999 passed 5-0. The Board’s decision was based on the following conclusions and findings of fact: Criteria 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. If the Owner complies with the literal terms of Section 5.7.4 B(1) of the UDO, an unnecessary hardship would result because only a narrow strip of property within the lot is outside the 75’ COD setback. Under a strict application, buildable area is severely restricted to the point that virtually not even a residence could be built on the lot today, much less a swimming pool. Criteria 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. The newly established resource conservation line, and thus the 75’ COD setback line, bifurcates the property in a nearly west to east direction near the northern property line. As a result, nearly the entire lot - including the existing single-family residence - is now located inside the setback. This condition and hardship are peculiar to the Owner’s property. Criteria 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. The hardship did not result from the actions taken by the property owner. The developer of the neighborhood created the lot configuration and size. When the lot was placed in 2013 in Plat Book 57 at Page 272 of the New Hanover County Registry, the conservation resource line was significantly water ward of its current location as flagged by New Hanover County personnel on February 25, 2025. The proposed location of the pool would have fit on the owner’s property in 2013 without a variance. It is only because of the change in location of the conservation resource line since the lot was placed that a variance is needed. Through natural causes and the installation of a fence on the adjacent property, not attributed to the property owner, the boundary of the marsh has been altered in the area thereby changing the setback adversely for the property owner. Criteria 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. The requested variance is consistent with the spirit, purpose and intent of the ordinance. The New Hanover County UDO, Section 5.7 - Conservation Resources - states the purpose is to protect important environmental resources in the County. No portion of the proposed pool is located inside any conservation resource area or inside any CAMA area of environmental concern. As such, this variance is consistent with the purpose of protecting important environmental resources, does not negatively impact public safety, and achieves substantial justice. The location of the proposed pool is situated so that a large tree may be preserved. Tree preservation is consistent with the spirit of the ordinance. There being no further business before the Board, Mr. Daube made a MOTION to ADJOURN the meeting, SECONDED by Mr. Uhl. The motion to adjourn the meeting passed 5-0. The meeting adjourned at 5:42 PM. MEETING ADJOURNED Please note the minutes are not a verbatim recording of the proceeding. _____________________ Executive Secretary _____________________ Chair _____________________ Date VARIANCE REQUEST BOARD OF ADJUSTMENT June 24, 2025 BOA-997 Page 1 of 5 CASE: BOA-997 PETITIONER: Earic Gayfield, applicant, on behalf of St. James AME Church, property owner. REQUEST: Variance from the height and illumination requirements for a freestanding sign per Section 5.6.2.J.3 of the New Hanover County Unified Development Ordinance. LOCATION: 3425, 3421Castle Hayne Road PIDs: R02511-004-003-000 R02511-004-002-000 ZONING: R-20, Residential District ACREAGE: 1.3 Acres BACKGROUND AND ORDINANCE CONSIDERATIONS: The applicant is requesting a variance to the maximum height and illumination restrictions for a freestanding sign in a residential area. The subject property is located at St. James AME Church in Castle Hayne, which is within the R-20 Residential Zoning District. The variance is sought to allow the constructed sign to remain, which currently exceeds the height limitations and includes an internally illuminated digital message board. In late 2024, the applicant contacted staff regarding the replacement of a longstanding freestanding sign at the church. The original sign included two message panels, measured 7’10” in height and 6’5” in width, and featured a cross extending to 12’8” in height. While considering the request, staff determined that the cross element of the sign constituted a religious symbol and was not a part of the sign’s supporting structure. Thus, it would not be included in the overall sign height measurement, and the pre-existing sign had a total heigh of 7’10” per the UDO definition: SIGN, HEIGHT As applied to a sign, height shall be measured as the vertical distance between the highest part of the sign or its supporting structure, whichever is higher, and a level plane going through the nearest point of the improved public right-of-way at the ground-level curb line. The proposed replacement sign was to be a total of 9’ in height with an 8’ x 4’ (32 square feet) digital sign area. Upon review, the applicant was advised by staff of the regulations governing freestanding signs in residential areas, which specify the limitations on height and illumination: VARIANCE REQUEST BOARD OF ADJUSTMENT June 24, 2025 BOA-997 Page 2 of 5 Section 5.6.2.J.3: Freestanding Signs in Residential Areas For permitted nonresidential uses, including churches and synagogues, one freestanding sign per frontage, not exceeding 35 square feet in sign area, and one marquee sign not to exceed 25 feet in sign area. All permitted freestanding signs shall have a maximum height limit of six feet and shall have a minimum setback of five feet from any property line. For permitted freestanding signs which are to be illuminated, such illumination must come from a light source which is external to the sign itself. While the church is located along a minor arterial street in the vicinity of parcels that have transitioned from residential to conditional commercial zoning districts, it is designated within an R-20, Residential Zoning District and subject to these regulations. Figure 1: Submitted Permit Sign Graphic After being informed of the freestanding sign regulations, the applicant applied for a variance to the height and limitation requirements in December 2024. While processing the variance, staff considered recent legislation that was passed by the NC General Assembly, Senate Bill 607, that addressed the reconstruction and removal of on-premises advertising signs. This bill amended Chapter 160D of the VARIANCE REQUEST BOARD OF ADJUSTMENT June 24, 2025 BOA-997 Page 3 of 5 General Statutes to include a provision regarding the relocation or reconstruction of an on-premises advertising sign: § 160D-912.1. On-premises advertising. (b) Notwithstanding any local development regulation to the contrary, a lawfully erected on- premises advertising sign may be relocated or reconstructed within the same parcel so long as the square footage of the total advertising surface area is not increased, and the sign complies with the local development rules in place at the time the sign was erected. The construction work related to the relocation of the lawfully erected on-premises advertising sign shall commence within two years after the date of removal. The local government shall have the burden to prove that the on-premises advertising sign was not lawfully erected. Based on this statute, staff initially concluded that the proposed replacement sign met the criteria and informed the applicant of this in writing on January 8, 2025. The applicant subsequently withdrew the variance request and submitted a commercial sign permit on February 12, 2025. This permit application was given zoning approval on February 21, and the permit was issued on May 5 for a 10-foot tall sign with internal LED illumination. The sign was approved and constructed with final building inspection approvals in May 2025. In March 2025, staff received a similar sign inquiry from another religious organization in a residential area. Upon conducting a review of this sign proposal, it was determined that the height of the replacement sign could be no more than 6’ in height, consistent with the requirements in section 5.6.2.J.3 of the UDO. Staff noted that the digital component would not be permissible under the current regulations. Noting the inconsistency in staff findings between the two recent proposals, staff reassessed the approved St. James AME Church sign with GS 160D-912.1 to ensure that the application of the regulations was consistent. Upon reviewing the sign proposal with the state language, staff determined that the statute was misapplied to the St. James AME Church sign as the new sign would not meet the height and illumination standards in the ordinance. As a result of the discussions regarding the limitations presented by current signage regulations, staff has considered the potential of a text amendment to amend the sign regulations to align further with contemporary advertisement methods, and a text amendment concept was presented to the Planning Board for input and direction at their June 2025 meeting. An amendment could potentially allow freestanding signs in residential areas to contain illumination if ultimately approved; however, signs still need to comply with the current regulations unless a variance is approved until this may occur. On May 15, 2025, representatives from St. James AME Church were advised that the statute was misapplied, and options to bring the sign into compliance could be pursued, which included: VARIANCE REQUEST BOARD OF ADJUSTMENT June 24, 2025 BOA-997 Page 4 of 5 • Processing the variance as was initially applied for in December 2024 to exceed the allowable height by 4’ (for a total sign height of 10’) and allow a source of illumination internal to the sign; • Await a decision on a potential text amendment to the sign regulations that would allow a digital component to freestanding signs in residential areas; • A settlement between parties that would allow the applicant use of the sign for a period of up to 24 months, unless a variance is granted to the height and illumination provisions, or a text amendment which renders the sign conforming is passed. If no action to render the sign conforming occurs within 24 months, the sign would then have to be altered in order to comply. The applicant has elected to pursue a variance of 4’ above the 6’ sign height maximum, as well as to allow a source of illumination internal to the sign itself in the form of the digital message board. The applicant contends the variance is necessary due to factors including, but not limited to, effective communication of safety messages, event announcements, and service times, as well as for increased visibility which would improve safety to motorists. A full narrative of the request and rationale has been provided by the applicant as part of their variance application. In summary, the applicant is requesting a variance from the maximum sign height and illumination requirements for freestanding signs in residential areas to allow the permitted sign to remain as constructed. The sign currently measures 10’ high and 4’ wide in sign area with a total sign area of 32 square feet. VARIANCE REQUEST BOARD OF ADJUSTMENT June 24, 2025 BOA-997 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 Zoning Ordinance where, due to special conditions, a literal enforcement of the regulations would result in unnecessary hardship. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with the Zoning Ordinance. A concurring vote of four-fifths (4/5) of the voting members of the Board shall be necessary to grant a variance. A variance shall not be granted by the Board unless and until the following findings are made: 1. Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. 2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. 3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. 4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. ACTION NEEDED (Choose one): 1. Motion to approve the variance request based on the findings of fact (with or without conditions). 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to deny the variance request based on specific negative findings in any of the 4 categories above. MEMBERS OF THE BOARD Michael Keenan, Sr. Chair | Caleb Rash Vice-Chair Will Daube | Laura King | Greg Uhl BOARD ALTERNATES Jonathan Bridges | Michael Sanclimenti | Ed Trice NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, CONFERENCE ROOM 139 WILMINGTON NC 28403 ORDER TO GRANT A VARIANCE – Case BOA-997 The Board of Adjustment for New Hanover County, having held a public hearing on June 24, 2025, to consider application number BOA-997, submitted by Earic Gayfield, applicant, on behalf of St. James AME Church, property owner, a request for a variance from Variance from the height and illumination requirements for a freestanding sign per Section 5.6.2.J.3 of the New Hanover County Unified Development Ordinance (UDO) to use the property located at 3425 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 height and illumination requirements for a freestanding sign per Section 5.6.2.J.3 of the New Hanover County Unified Development Ordinance, that an unnecessary hardship would 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 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 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 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 height and illumination requirements for a freestanding sign per Section 5.6.2.J.3 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 June, 2025 ____________________________________ Chair Attest: ________________________________ Kenneth Vafier, Executive Secretary to the Board G.S. 160D-912.1 Page 1 § 160D‑912.1. On‑premises advertising. (a) As used in this section, the following definitions apply: (1) Monetary compensation. – An amount equal to the sum of (i) the greater of the fair market value of the nonconforming on‑premises advertising sign in place immediately prior to the removal or the diminution in value of the real estate resulting from the removal of the sign and (ii) the cost of a new on‑premises advertising sign that conforms to the local government's development regulations. (2) On‑premises advertising sign. – A sign visible from any local or State road or highway that advertises activities conducted on the property upon which it is located or advertises the sale or lease of the property upon which it is located. (3) Reconstruction. – Erecting or constructing anew, including any new or modern instrumentalities, parts, or equipment that were allowed under the local development rules in place at the time the sign was erected. (b) Notwithstanding any local development regulation to the contrary, a lawfully erected on‑premises advertising sign may be relocated or reconstructed within the same parcel so long as the square footage of the total advertising surface area is not increased, and the sign complies with the local development rules in place at the time the sign was erected. The construction work related to the relocation of the lawfully erected on‑premises advertising sign shall commence within two years after the date of removal. The local government shall have the burden to prove that the on‑premises advertising sign was not lawfully erected. (c) A local government may require the removal of a lawfully erected on‑premises advertising sign under a local development regulation only if the local government pays the owner of the sign monetary compensation for the removal. Upon payment of monetary compensation, the local government shall own the sign and remove it in a timely manner. (d) Nothing in this section shall be construed to diminish the rights given to owners or operators of nonconforming uses, including nonconforming structures, as set forth in G.S. 160D‑108 or the rights of owners or operators of outdoor advertising signs in Article 11 of Chapter 136. (2024‑45, s. 23.1(a).)