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HomeMy WebLinkAboutDenial OrdersCOUNTY OF NEW HANOVER STATE OF NORTH CAROLINA ORDER TO DENY A SPECIAL USE PERMIT Mixed Use Development in a B-2, Regional Business District S24-04 - Bayshore Townhomes Multi -Family in B-2 The County Commissioners for New Hanover County (hereinafter "County Commissioners"), having held an evidentiary hearing on the 2nd day of September, 2025, to consider application number S24-04 submitted by Bayshore Townhomes, LLC, applicant, on behalf of Bee Safe Porters Neck, LLC, property owners, for a special use permit for a 62 unit multi -family development with 1,800 of commercial space in a B-2, Regional Business district on a 3.21- acre parcel of land located at 8138 Market Street, and having heard all of the evidence and arguments presented at the hearing, the County Commissioners make the following FINDINGS OF FACT: 1. That the applicant submitted two applications to New Hanover County for special use permits. One is referred to as S24-04, which sought a special use permit for Multi -Family in an area zoned B-2, and a second which is referred to as S24-05, which sought a special use permit for an Additional Dwelling Allowance in an area zoned R-15. 2. The applicant's application for each special use permit contained a proposed condition that each special use permit "shall not be effective without the approval of the separate SUP pertaining to the overall project..." 3. The applicant's application for each special use permit contained a proposed condition that "the property comprising the overall project will be combined under common ownership, and the project thereafter will be master planned and developed as such pursuant to the provisions of the subject SUPS." 4. The "overall project" as used by the applicant means both S24-04 and S24-05. 5. S24-04 and S24-05 must be considered together in total. 6. The Annual Average Daily Trip (AADT) Planning Capacity for Market Street is 41,369 trips. 7. The Annual Average Daily Trip (AADT) Latest Traffic Volume for Market Street is 43,000 trips. 8. Market Street is currently above capacity. 9. The applicant's Traffic Impact Analysis (TIA) completed in 2023 and supplemented in 2024 by a technical memorandum estimated that 525-04 and S25-05 would generate an additional 124 AM peak hour trips and 174 PM peak hour trips. 10. Based on the affidavit and report of Zach Bugg, Phd', PE2, the applicant's TIA understated the likely traffic impact of S25-04 and S25-05, by using an assumed background annual growth of 1 % instead of 2%, using trip generation estimates based on ITE land use code 220 instead of ITE land use code 215, by incorrectly asserting that traffic volumes in the vicinity have decreased since the 2023 opening of Military Cutoff Extension, and by making no mention of several other developments approved by the Wilmington Metropolitan Planning Organization (WMPO) prior to the project's revised 2027 build -out date. 11. Access to the property is provided by a single right -in, right -out access onto Market Street. An emergency -only access gate is proposed for Bray's Drive. 12. Based on the testimony, affidavit, and report of Michael E. Bearak, MSP3, CSHM4, CSMPS, the increase in traffic density and traffic flow, along with the single right -in right -out onto Market Street will result in many drivers, who are attempting to travel south, cutting across multiple lanes of traffic to make a U-turn at Cypress Way Pond, which is only 250 feet from the proposed drive, increasing all hazards to motorists on Market Street and making Market Street more dangerous. 13. Based on the testimony, affidavit, and report of Michael E. Bearak, MSP, CSHM, CSMP, that the single access point will require all vehicular traffic for the 242 dwelling units in S25-05, having to travel through this portion of the project which will include both multi -family residential and commercial uses, which will place both motorists and pedestrians in danger. 14. Porter's Neck Elementary and Laney High School are over capacity. 15. Based on the testimony, affidavit, and report of Michael E. Bearak, MSP, CSHM, CSMP, the overcrowding of the public schools assigned to this area can decrease educational quality and create a greater risk of violence due to: greater noise and distractions, less personalized instruction, increases in disciplinary problems, poor buildings or environmental conditions, and increases in illness risks. ' PhD, Civil Engineering, North Carolina State University. z Professional Engineer in North Carolina, Maryland, and Virginia. 3 Master Safety Professional, National Association of Safety Professionals. 4 Certified Safety Health Manager, Institute of Hazardous Materials Management. 5 Certified Safety Management Practitioner, Institute of Hazardous Materials Management. 16. Based on the affidavit of Ernest W. Olds, AIA6, the overall project creates a development that is more consistent with a dense urban core of larger cities as the buildings create "long walls" along the vehicular paths, and because the units would have only very small front lawns and no rear yards, thereby creating a development that is not in harmony with the surrounding area. 17. Based on the affidavit of Michael Rose, a former North Carolina town manager and experienced local government planning professional, that the overall project is not in harmony and not consistent with the 2016 Comprehensive Plan, because the majority of the overall project is outside the Porter's Neck High Growth Node of New Hanover County's 2016 Comprehensive Plan, and the proposed uses create a significant difference in density compared to the existing low -density development, and the overall project area is not an appropriate transition area. 18. This subject property is shown as Urban Mixed Use in the 2016 Comprehensive Plan. 19. This subject property is adjacent to commercially zoned properties to the north, south, and west. The site is adjacent to industrially zoned property to the west and then lower density residentially zoned parcels. 20. This application seeks a density of 19.3 dwelling units per acre. 21. This application must be considered together with S25-05, and when considered together the overall density of the project is 9.5 dwelling units per acre. 22. The proposed density of the overall project of 9.5 dwelling units per acre is not "generally consistent with the nearby communities" as stated in the 2016 Comprehensive Plan. 23. The proposed single access is functionally equivalent to a cul-de-sac which is discouraged under the 2016 Comprehensive Plan and therefore not in general conformity with the 2016 Comprehensive Plan. 24. The proposed use of the overall project is substantially more dense than the surrounding uses and is not in harmony with the area. Based on the foregoing FINDINGS OF FACT, the County Commissioners make the following CONCLUSIONS OF LAW: 6 Member of American Institute of Architects, and a registered architect in North Carolina, Delaware, Maryland, South Carolina and Virginia. That the proposed use DOES NOT satisfy 10.3.5.D.1. the first general requirement listed in the New Hanover County Unified Development Ordinance (hereinafter "UDO"); namely the requirement that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. 2. That the UDO's inclusion of this special use as a possible use in this zoning district creates a rebuttable presumption that this use is in harmony with the surrounding area and in general conformity with the Comprehensive Land Use Plan for New Hanover County; and that opponents presented substantial, competent, and material evidence to rebut this presumption, and therefore the County Commissioners conclude that the proposed use DOES NOT satisfy 10.3.5.D.4 the fourth general requirement listed in the UDO; namely the requirement that the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the Comprehensive Land Use Plan for New Hanover County. 3. That the inability to meet any of the four requirements under Section 10.3.5.D means the project must be denied. The County Commissioners, having made the FINDINGS OF FACT and CONCLUSIONS OF LAW that the applicant's project does not satisfy all the required conditions and specifications of the UDO, and understanding that failing to meet two required conditions means the project is denied. Wherefore, all of the general and specific conditions precedent to the issuance of a special use permit HAVE NOT been satisfied, IT IS ORDERED that the application for the issuance of a special use permit be DENIED. Ordered the 2nd day of September, 2025. Signed and entered this the 151h day of September, 2025. - L k William E. Rivenbark, Chair Attest: h a 011ma K berleigh G. rowell, Clerk to the Board COUNTY OF NEW HANOVER STATE OF NORTH CAROLINA ORDER TO DENY A SPECIAL USE PERMIT Additional Dwelling Allowance in an R-15, Residential Zoning District 524-05 - Bayshore Townhomes Additional Dwelling Allowance in R-15 The County Commissioners for New Hanover County (hereinafter "County Commissioners"), having held an evidentiary hearing on the 2nd day of September, 2025, to consider application number S24-05 submitted by Bayshore Townhomes, LLC, applicant, on behalf of Herbert Parham, property owners, for a special use permit for an Additional Dwelling Allowance for 242 row -style dwelling units in a R-15, Residential district on a 30.22-acre parcel of land located at the 8100 block of Market Street, and having heard all of the evidence and arguments presented at the hearing, the County Commissioners make the following FINDINGS OF FACT: 1. That the applicant submitted two applications to New Hanover County for'special use permits. One is referred to as S24-04, which sought a special use permit for Multi -Family in an area zoned B-2, and a second which is referred to as S24-05, which sought a special use permit for an Additional Dwelling Allowance in an area zoned R-15. 2. The applicant's application for each special use permit contained a proposed condition that each special use permit "shall not be effective without the approval of the separate SUP pertaining to the overall project..." 3. The applicant's application for each special use permit contained a proposed condition that "the property comprising the overall project will be combined under common ownership, and the project thereafter will be master planned and developed as such pursuant to the provisions of the subject SUPs." 4. The "overall project" as used by the applicant means both S24-04 and S24-05. 5. S24-04 and S24-05 must be considered together in total. 6. The Annual Average Daily Trip (AADT) Planning Capacity for Market Street is 41,369 trips. 7. The Annual Average Daily Trip (AADT) Latest Traffic Volume for Market Street is 43,000 trips. 8. Market Street is currently above capacity. 9. The applicant's Traffic Impact Analysis (TIA) completed in 2023 and supplemented in 2024 by a technical memorandum estimated that S25-04 and S25-05 would generate an additional 124 AM peak hour trips and 174 PM peak hour trips. 10. Based on the affidavit and report of Zach Bugg, Phd', PE2, the applicant's TIA understated the likely traffic impact of S25-04 and S25-05, by using an assumed background annual growth of 1 % instead of 2%, using trip generation estimates based on ITE land use code 220 instead of ITE land use code 215, by incorrectly asserting that traffic volumes in the vicinity have decreased since the 2023 opening of Military Cutoff Extension, and by making no mention of several other developments approved by the Wilmington Metropolitan Planning Organization (WMPO) prior to the project's revised 2027 build -out date. 11. Access to the property is provided by a single right -in, right -out access onto Market Street. An emergency -only access gate is proposed for Brays Drive. 12. Based on the testimony, affidavit, and report of Michael E. Bearak, MSP3, CSHM4, CSMP5, the increase in traffic density and traffic flow, along with the single right -in right -out onto Market Street will result in many drivers, who are attempting to travel south, cutting across multiple lanes of traffic to make a U-turn at Cypress Way Pond, which is only 250 feet from the proposed drive, increasing all hazards to motorists on Market Street and making Market Street more dangerous. 13. Based on the testimony, affidavit, and report of Michael E. Bearak, MSP, CSHM, CSMP, that the single access point will require all vehicular traffic for the 242 dwelling units having to travel through the mixed -use portion (multi -family residential and commercial uses proposed in S25-04) of the overall project which will place both motorists and pedestrians in danger. 14. Porter's Neck Elementary and Laney High School are over capacity. 15. Based on the testimony, affidavit, and report of Michael E. Bearak, MSP, CSHM, CSMP, the overcrowding of the public schools assigned to this area can decrease educational quality and create a greater risk of violence due to: greater noise and distractions, less personalized instruction, increases in disciplinary problems, poor buildings or environmental conditions, and increases in illness risks. PhD, Civil Engineering, North Carolina State University. 2 Professional Engineer in North Carolina, Maryland, and Virginia. 3 Master Safety Professional, National Association of Safety Professionals. 4 Certified Safety Health Manager, Institute of Hazardous Materials Management. 5 Certified Safety Management Practitioner, Institute of Hazardous Materials Management. 16. Based on the affidavit of Ernest W. Olds, AIA6, the project creates a development that is more consistent with a dense urban core of larger cities as the buildings create "long walls" along the vehicular paths, and because the units would have only very small front lawns and no rear yards, thereby creating a development that is not in harmony with the surrounding area. 17. The vast majority of the subject property in 524-05 is not within the Porter's Neck High Growth Node of New Hanover County's 2016 Comprehensive Plan. 18. Based on the affidavit of Michael Rose, a former North Carolina town manager and experienced local government planning professional, that the project is not in harmony and not consistent with the 2016 Comprehensive Plan, because it is outside the Porter's Neck High Growth Node of New Hanover County's 2016 Comprehensive Plan, and the proposed uses create a significant difference in density compared to the existing low -density development, and the subject property is not an appropriate transition area. 19. This subject property is shown as General Residential in the 2016 Comprehensive Plan. 20. The 2016 Comprehensive Plan defines General Residential as: This place type focuses on lower -density housing and associated civic and commercial services. Housing for the area is typically single-family or duplexes... Access to areas outside these residential areas are provided by arterial roadways, but still allow for interconnection between other place types. Limiting cul- de-sacs is encouraged to promote better internal circulation and minimize high - volume traffic roads within the area. Types of uses include single-family residential, low -density multi -family residential, light commercial, civic, and recreational ... The ideal density for multi- and single-family residential is low (ranging up to approximately eight units per acre). Density within the General Residential place type may be limited by flood plain, wetlands, or other natural or manmade features and generally should be consistent with nearby communities. 21. Adjacent properties to the north, south, and east are single family residential. Properties to the west, towards Market Street, are a mix of commercial and residentially zoned property. 22. This application seeks a density of 8.37 dwelling units per acre. 6 Member of American Institute of Architects, and a registered architect in North Carolina, Delaware, Maryland, South Carolina and Virginia. 23. This application must be considered together with S25-04, and when considered together the overall density of the project is 9.5 dwelling units per acre. 24. The proposed density of 9.5 dwelling units per acre is greater than the "ideal density" of approximately 8 dwelling units per acre as stated in the 2016 Comprehensive Plan. 25. The proposed density of 9.5 dwelling units per acre is not "generally consistent with the nearby communities" as stated in the 2016 Comprehensive Plan. 26. The proposed single access is functionally equivalent to a cul-de-sac which is discouraged under the 2016 Comprehensive Plan and therefore not in general conformity with the 2016 Comprehensive Plan. 27. The proposed use is substantially more dense than the surrounding uses and is not in harmony with the area. Based on the foregoing FINDINGS OF FACT, the County Commissioners make the following CONCLUSIONS OF LAW: That the proposed use DOES NOT satisfy 10.3.5.D.1. the first general requirement listed in the New Hanover County Unified Development Ordinance (hereinafter "UDO"); namely the requirement that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. 2. That the UDO's inclusion of this special use as a possible use in this zoning district creates a rebuttable presumption that this use is in harmony with the surrounding area and in general conformity with the Comprehensive Land Use Plan for New Hanover County; and that opponents presented substantial, competent, and material evidence to rebut this presumption, and therefore the County Commissioners conclude that the proposed use DOES NOT satisfy 10.3.5.D.4 the fourth general requirement listed in the UDO; namely the requirement that the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the Comprehensive Land Use Plan for New Hanover County. 3. That the inability to meet any of the four requirements under Section 10.3.5.D means the project must be denied. The County Commissioners, having made the FINDINGS OF FACT and CONCLUSIONS OF LAW that the applicant's project does not satisfy all the required conditions and specifications of the UDO, and understanding that failing to meet two required conditions means the project is denied. Wherefore, all of the general and specific conditions precedent to the issuance of a special use permit HAVE NOT been satisfied, IT IS ORDERED that the application for the issuance of a special use permit be DENIED. Ordered the 2"d day of September, 2025. Signed and entered this the ,151h day of September, 2025. Nit -� P(- William E. Rivenbark, Chair n Z, y x� O Attest: TABLtS}lE�� f K berleigh G. well, Clerk to the Board