ZBA-3-04
1 MINUTES ZONING BOARD OF ADJUSTMENT March 23, 2004 The New Hanover County Zoning Board of Adjustment held a regular and duly advertised meeting at 5:30 P.M. at the New Hanover County
Administration Annex Building, 230 Market Place Drive, Suite 110, Wilmington, NC, on March 23, 2004. Members Present Jeffrey Bellows, Chairman Vice-Chairman
Michael V. Lee Horace Malpass Brian Eckel Ex Officio Members Present Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary Hattie Moore, Clerk The meeting was called
to order by the Chairman, Mr. Jeffrey Bellows. It was moved and seconded to approve the minutes of the February 2004 Board meeting. Mr. Bellows explained to all present that the Board
is a quasi-judicial board appointed by the Board of Commissioners to consider zoning ordinance variances from residents in New Hanover County where special conditions would create unnecessary
hardships. The Board also hears the Zoning Ordinance. He added that
appellants have thirty days in which to appeal any decision made by the Board to Superior Court. Mr. Bellows called County staff, Ms. Ann S. Hines to be sworn or affirmed for testimony.
The first case to be brought before the Board was as follows: Archmill Place, Inc., by Archie McGirt, is appealing an order of the Zoning Enforcement Official to provide connections
to City of Wilmington water lines for the residents of Archmill Place Subdivision. ZBA-719. (Continued from the December 2003 meeting.) The Chairman swore in: Mr. John Klein Engineer
Mr. Brett J. Waress -Representing Archmill Place Homeowners Mr. Robert Wilson President, Archmill Place Homeowners Association Mr. Mark Carter Attorney for Mr. McGirt Mr. Mark
Carter stated that he would be representing Mr. McGirt instead of his primary attorney, Mr. Alton Lennon, who is out sick. Mr. Carter said Archmill Place entered into an agreement with
the County on January 26, 2004 to resolve the water matters. The agreement stated that the repairs
2 would be accomplished within 90 days of execution of the agreement, which would be April 25, 2004. He said a contractor is working on the improvements, but last week an issue developed
as to how the meters would come off the main water line. He said this was not addressed in the agreement but they do have a price from their existing contractor to make the changes.
He said they are proceeding in good faith to accomplish the things that need to be done and this matter needs to be continued until the next meeting in April or the May meeting. Mr.
Bellows asked when the work was physically started on the project. Mr. John Klein said that the verbal authorization was given to the contractor on February 12 and the actual contract
was signed and executed on February 23. He said they are currently in the process of trying to locate the lots that already have water services installed; all the services on the front
lots have been located and they are now working on the back lots. Mr. Klein said the original contractor laid it out for dual services, where you would have a single line split with
separate meters. He said the City does not want the dual services so they had to go back to the original contractor to have it installed under the City standards. Mr. Bellows asked if
they were still confident that they could meet that 90-day deadline. Mr. Klein said he spoke to the contractor this morning and he still feels confident that they can meet that deadline.
Mr. Bellows asked Ms. Hines if she had any additional comments. Ms. Hines said the County has already agreed to work with them until 90 days from the date the contract was executed,
and if they feel they can complete the work within that timeframe, then the County would support a continuance to the next meeting. Mr. Bellows explained that the action the Board needs
to decide on is whether or not to grant a continuance. He said the work is scheduled for completion on April 25 and the next meeting of the Zoning Board is April 27, so it would be appropriate
to continue continue this case to the April 27 meeting. The Chairman called for those to speak in opposition to this case being continued to the April 27 meeting to come forward. Mr.
Brett Waress said the developer started the work on March 9th and has had more than enough time to complete this project. Mr. Waress said they are here to implore the Board not to grant
a continuance to the developer and to commence enforcement actions. He then read the following statement: The developer has had more than seven months to complete the water system
and it is time he is
Archmill Place should be well known. McGirt was found in violation of County Ordinances in October 2003 and he was told on that date that he had 90 days, which would have been
January 2, 2004, to finish the project. He was able, through his attorney Alton Lennon, to secure continuances to push the completion date ahead four months, which is April 24. Even
though McGirt had stated that he understood he must complete the water system at Archmill Place and he
Mr. Waress said he had just presented the timeline of events demonstrating that McGirt understood what the County order was, had
time to meet those requirements, but has chosen not
3 to. He said on October 3, 2003, the developers were found in violation of County Ordinance 53-1, R-10 District, Section 32-1 and that order stated that fines would be imposed if he
did not finish
has been given for you to make this connection. Mr. Waress continued by saying on October 17, 2003, attorney Alton Lennon stated in a Wilmington Star News interview that
Mr. McGirt had plans to build a connection and he intends to do what is required under the Ordinance. On
ce of appeal and at the Nov 18 Zoning Board of Adjustment meeting he was granted a continuance. He said at the December 16, 2003 Zoning Board meeting, Mr. McGirt promised
that the work would be completed within 90 days, which would have been been March 13, 2004. On January 26, 2004, Mr. McGirt signed a contract with the County specifying the conditions
they would accept to get the work completed. This contract added even more time by starting a 90-day countdown on January 26, 2004 not on December 16, 2003, thus giving them until April
24, 2004 to complete the work. Mr. Waress said it would be shameful if the Zoning Board granted yet another extension to this developer, who has demonstrated his absolute disregard for
his responsibilities to this development and in keeping his word. He asked the Board not to grant the developer another continuance and also to commence enforcement action by a fine
for everyday after April 24 that the work is not completed. Mr. Bellows asked Mr. Waress if he was in agreement that the work has physically started at the site, and Mr. Waress said
yes, the work did start on March 9. Mr. Lee asked Mr. Waress if his main concern was for the Board to do something now for fear that something might not be done at the next meeting,
and that they might find another way to get past the Board. Mr. Waress said that is correct. They want this Board to send a message to this developer that continuances will not be granted
all the time. He said they have had plenty of time and notice to get this work completed. Mr. Holt Moore offered some clarification. He said they have an agreement in place, with a deadline,
where Mr. McGirt has agreed to install the water lines. He said if the Board decides not to grant a continuance, then the hearing tonight would be about whether the developer even has
to Mr. Bellows asked Ms. Hines how would the County verify
that the work is complete to the satisfaction of the agreement. Ms. Hines said it would have to be satisfactory to the City of Wilmington because they are the ones that would ultimately
have to accept it. She said there is construction and certain testing that will need need to be done to get the water switched on. Mr. Bellows asked Mr. Klein if their completion schedule
includes testing and acceptance of the system by the City. Mr. Klein said that is correct. Mr. Carter said they are not asking for an extension of time beyond the original completion
date given under the agreement with the County. He said one of the provisions of the agreement is if the work is completed as agreed to, Archmill will not be responsible for any fines
per that letter of October 3, 2003.
4 Mr. Robert Wilson stated that he is the president of Archmill Place Homeowners Association, and they want clarification from the Board that a continuance would not in any way authorize
an extension beyond the April 25 deadline. Mr. Wilson said some individual homeowners have had some informal discussions with the contractor who has been there digging, and the contractor
has basically said he does not think he could get the work completed by that time. Board Deliberation Mr. Eckels asked if there are fines in the agreement or does it refer back to the
letter sent out in October. Ms. Hines said the agreement defines the work that Mr. McGirt has agreed to do and sets out a timeframe for completion. She said there is mention made in
the agreement of what happens if k is not finished by a certain
day. Mr. Carter said paragraph 5 in the signed agreement between Mr. McGirt and the County states that should Archmill be unable to complete the items here and above described within
the stated timeframe, and the County determines that the extension is not warranted, the County may commence any and all appropriate enforcement actions. He also said paragraph 3 of
the agreement deals with the understanding that if everything were completed, the appeal would be annulled. Mr. Bellows said it is his understanding that if the Board continues this
case to the April 27
effect immediately. He said with the agreement in place he could see no reason not to grant a continuance. Mr. Waress said he wanted to make sure that a continuance is not
the same thing as an extension and that a continuance would not keep the Board from exacting penalties, including fines. Mr. Lee explained that the Board determines the appeal as to
whether they they had to install it or not, but the Board would not be exacting fines if their appeal is denied; it would then revert back to Zoning Enforcement to exact fines. Following
deliberation, the Board made the following decision: 1. Archmill Place, Inc., by Archie McGirt, is appealing an order of the Zoning Enforcement Official to provide connections to City
of Wilmington water lines for the residents of Archmill Place Subdivision. ZBA-719. (Continued from the December 2003 meeting.) 2. On a motion by Mr. Lee and seconded by Mr. Malpass,
the Board voted unanimously to GRANT the continuance request to the next scheduled Zoning Board meeting on April 27, 2004.
5 The second case before the Board was as follows: Mr. Michael Pollock, 269 Loder Avenue, is requesting a variance from the side setback requirements of New Hanover County Zoning Ordinance
Section 52.5-2 for an addition to an existing residence. Property is zoned R-15. ZBA-725. The Chairman called Ms. Hines to give an overview of the case. Ms. Hines stated that Mr. Pollock
filed a request for a variance from the R-15 side setback requirements for a home at 269 Loder Avenue. She said he is seeking a variance to encroach 8.5 inches into the 10-foot sideline
setback in order to install an elevator for access to his home. Mr. Bellows called those to speak on granting the variance request to come forward to be sworn or affirmed for testimony.
The Chairman swore in Mr. Michael Pollock. Mr. Pollock stated that they purchased the house and was assured by the builder that they could install an elevator in the house. He said the
construction of an elevator shaft would extend into the setback approximately 8.5 inches. inches. He said there is no covered access to the living area of the house; the living area
starts on the second floor. Mr. Bellows asked Mr. Pollock if there were any other options and Mr. Pollock said no. Mr. Bellows called those to speak on denying the variance request to
come forward to be sworn or affirmed for testimony. There was no one present to speak on denying the variance request. Board Action: 1. Mr. Michael Pollock, 269 Loder Avenue, is requesting
a variance from the side setback requirements of New Hanover County Zoning Ordinance Section 52.5-2 for an addition to an existing residence. Property is zoned R-15. ZBA-725. 2. On a
motion by Mr. Eckels and seconded by Mr. Malpass, the Board voted unanimously to GRANT the variance request. The third case before the Board was as follows: Market Street Properties,
7888 Market Street, is requesting a variance from the side and front setback requirements for an addition to an existing commercial building in the Special Highway Overlay District.
Property is zoned B-2. ZBA-726. The Chairman called Ms. Hines to give an overview of the case. Ms. Hines first mentioned that a variance was granted last year for this same property
to add a modest enlargement on the back corner of this B-2 commercially zoned building in the SHOD (Special Highway Overlay District). She stated that the SHOD carries some increased
building setbacks and this building had been in place since before the SHOD took effect. She said the
6 previous variance was granted for a small addition on the back that intrudes into the 25-foot sideline setback. The owners are now requesting a variance on the front side of the building
towards Market Street for a further expansion, which would extend the existing building line on the southwest side. She said that portion of the building would intrude into the 25 foot
SHOD setback by 6.3 feet from the side property line and in addition, the applicant is asking for a 50-foot setback from the front. Mr. Bellows asked Ms. Hines if she had knowledge of
any other adjacent or nearby commercial buildings having similar setbacks of fifty feet or less. Ms. Hines said she did not know and it is possible that there may be some buildings in
that area with that setback. Mr. Bellows called those to speak on granting the variance request to come forward to be sworn or affirmed for testimony. He swore in Mr. John Stirewalt
and Mr. William Quinn Goodman. Mr. Stirewalt stated that he is the architect representing Trucks, Etc. He said that the building meets the B-
said the existing front is 150 square feet and they have no plans of cutting down any trees at that location; their plan is to enhance the
property. Mr. Bellows asked Mr. Striewalt how much farther would the new addition extend into the front setback and Mr. Stirewalt said about 12-½ feet. Mr. Goodman said when they got
the property it was in bad condition and they have worked hard to have a much better looking building. He said by removing the old glass sunroom presently there, it would give them a
better showroom and inventory area. He said they have done landscaping and plan to do more. Mr. Bellows asked if there was room in the rear of the property for future expansion and Mr.
Goodman said no due to an existing power line in the rear. The Chairman called for those to speak in opposition to the Board granting this variance request to come forward to be sworn
or testimony. There was no one present to speak on denying the variance request. Board Action: 1. Market Street Properties, 7888 Market Street, is requesting a variance from the side
and front setback requirements for an addition to an existing commercial building in the Special Highway Overlay District. Property is zoned B-2. ZBA-726. 2. Mr. Furman made a motion
to GRANT the variance request based on the findings of fact. Mr. Malpass seconded the motion. All ayes.
7 The fourth case before the Board was as follows: Mr. Richard K. Darwin, 121 Arlington Drive, is requesting a variance to change the use of the property from its existing non-conforming
use, a HVAC fabrication and installation company, to another non-conforming use, a building and painting service. Property is zoned R-15 and R-20. ZBA-727. The Chairman called Ms. Hines
to give an overview of the case. Ms. Hines first mentioned that this property has also been to the Board recently for a variance. She said the previous variance request was under Article
IV of the Zoning Ordinance that deals with non-conforming uses and non-conforming situations to convert this property from an existing non-conforming use to another. The Board granted
that variance but unfortunately that transaction fell through. Now another potential purchaser would like to present his proposed use for the property, which they feel would be more
consistent to the surrounding neighborhood than the existing use. The present use is a heating and air conditioning contractor, which includes fabrication of ductwork and installations
of heating and air conditioners. The proposed use is a building and painting service, which is also in the construction related field but a different type of contractor from the heating
and air contractor. Mr. Bellows called those to speak on granting the variance request to come forward to be sworn or affirmed for testimony. The Chairman swore in Mr. Richard Keith
Darwin. Mr. Darwin stated that when the Allen Face deal fell through, he was the next purchaser in line for the property. He said his business is specialty painting, in the field, such
as renovating kitchens, faux finished work, fancy finishes, etc. He said what he needs is a place to set up a staging area for his equipment, and he would like to enter into negotiations
with a builder to help share the space. Mr. Bellows said it is going to be critical to the decision and for the record that the Board gets a thorough description of the type of activities
that would be permitted under the variance request. He then asked Mr. Moore if it was adequate in the testimony to cover the types of activities, or does a motion on a variance being
granted have to include the details of the types of activity. Mr. Moore said the Board would need to have a firm idea contained in the motion so it can be reduced to writing and something
to sign. Mr. Bellows informed Mr. Darwin that since he does not yet have a partner to share the building, the Board would need him to give a fairly specific idea of what activities will
be occurring. Mr. Darwin said his activities include having a staging area for his trucks, equipment and tools. He said his business will mainly be conducted in the field but some projects
would be in the building. He explained that they were once involved with the film industry but are now trying to re-invent their business due to the film industry conducting business
out of the area. He said they use a lot of floor space for painting large murals. He said the building has one thousand square feet of office space, four thousand square feet of warehouse
space and a mezzanine over the office for additional storage. He said there are also three bathrooms and a shower.
8 Mr. Lee asked if the use would be limited to what he does with his business and office use. Mr. Darwin said yes, because most contractors need more warehouse space than office space.
Mr. Bellows asked if there would be spray painting at the location also. Mr. Darwin said if he did use spray painting, it would be in water-based finishes using conventional guns. He
said water-based paint does not have fumes, does not require fire suppression systems, spray booth exhaust, or roof penetrations. He said he fully understands that this type of work
cannot be done at this location. Mr. Bellows said a list of activities has to be attached to the variance. He asked Mr. Darwin if he would ever need to do any painting outdoors. Mr.
Darwin said no, only to paint the exterior of the building itself. He said his type of work needs to be done on the inside where the environment is controlled. Ms. Hines said it needs
to be clarified that there would be nothing going on outside but parking. She said for example, if there was a large fabrication project that somehow became too large and had to be taken
outside. If that would become a habit, then that is a change and the Board would need to know if this could happen. Mr. Darwin said there would only be parking outside and if he was
putting together a large piece of flat scenery, it would be best done inside on a flat level concrete surface and not outside in the dust on a gravel parking lot. He said his business
would stay contained on the inside. Mr. Lee said it sounds like what he is doing is a lot less offensive than what is being done there now, and any associated use would be just office.
Ms. Hines said when you start putting more than one business under one roof you encounter building code concerns. She said there might be some type of tenant separation required and
work may need to done on the inside to satisfy the building codes if another business is introduced there. She said there are different kinds of contractors in the Zoning Table of Permitted
Uses, and �
�clear about what sort of things this Board has to contemplate. If you intend for it to be only office, �
�there to work before they go out to the job site, or if there is any storage going
on in the building. Mr. Darwin said he hopes to form a partnership and create it as one business. He said some associates have expressed interest in doing this but no one has committed
yet. For now it is solely his business. Mr. Bellows said he is uneasy granting a variance on an unknown use. He said he would prefer to gra
to the Board for another variance when a different use
would occur. Ms. Hines said she is in agreement. She said there would be no way that the Board could make the necessary findings without knowing what the activities would be.
9 Mr. Darwin said he has not purchased the property yet and he would be happy to come back when he does get a partner. Mr. Furman said that it might be beneficial to Mr. Darwin if he
did not tie his business to second one right now. Mr. Bellows asked Ms. Hines if it is reasonable to put specific limits on the hours of operations. Mr. Lee asked if the limit on hours
of operation could be for any activity that generates noise. Ms.
acceptable noise levels, one for late night and another for morning. Mr. Furman asked if there is a restriction on the present
owner with his sheet metal business. Mr. Bellows said his business is non-conforming. �
�more conforming than what exists there now. Mr. Bellows asked if it could be stated in the motion that the
applicant may come back to the Board for another variance request for a use less non-conforming than the existing business. Ms. Hines read the following: The Board shall issue such an
approval if it finds that the proposed use will be more compatible with the surrounding neighborhood than the use in operation at the time the approval is applied for. Mr. Moore said
Mr. Barefoot indicates in his letter that the property is used for office and warehouse space and he has agreed to sell it for the same general office and warehouse use. Mr. Moore said
he does not want the property to be purchased and then the property is limited by a variance and the buyer does not know what the terms are under that variance. It should be clarified
on the record exactly what the arrangement is. He said the possibility is open that a variance is granted that limits the use of the property.
-conforming use; he was just trying to sell the building
to the other purchaser. Mr. Bellows called those to speak on denying the variance request to come forward to be sworn or affirmed for testimony. He swore in Mr. Lowell Sherman. Mr. Sherman
stated that he lives at 117 Arlington Drive and he does not have any problems with the proposed business. He said his concern is the buffer zone; he wants a barrier between his back
property line and the commercial business. He said his property line is less than thirty feet from the building. His other concern is business being conducted late at night. Mr. Bellows
asked Mr. Sherman if a six feet solid privacy fence would be acceptable and Mr. Sherman said yes, and it would have to be approximately 130 feet of fencing.
10 Mr. Darwin said he could undershrubbery in that location before,
but was removed by George Barefoot due to a failed septic system for the building. He said due to the way the septic system has to fit, the shrubbery had to be removed because it was
in the path of the new septic system, and this was per the requirements of County Environmental Health Services. He said he is in negotiations with Mr. Barefoot to have a new septic
installed. Board Deliberation Mr. Lee said the Zoning Ordinance states that you shall grant the variance if the proposed use is less non-conforming than the current use. He said this
case is not like some other cases where variances were granted and the Board imposed fences. He said, although he understands the concern, it is not appropriate for determination. Mr.
Bellows said the Board also has an obligation to meet the intent of the Zoning Ordinance and attaching conditions are a common and acceptable method to take. He read from the Ordinance
shall issue such approval if the Board finds that the proposed use will be more compatible �
�compatible with the neighborhood. Mr. Eckel said although it would be nice to have a fence there, he is in
agreement with Mr. Lee that it is not for the Board to make that a part of the decision. Mr. Furman said Mr. Darwin meets all the requirements because his proposed business is a less
offensive type use than the present use. He also said that requesting Mr. Darwin to put up a fence is extraneous to what the Board should be looking at, as a package. Mr. Malpass said
he did not have a problem asking that a fence be erected. Mr. Moore said technically, Mr. Lee is correct. The question is whether it is less intensive without the fence, and if it is
and he insist that he is entitled to a variance with that, then
the Board would have to grant. Following discussion, the Board made the following decision: Action: 1. Mr. Richard K. Darwin, 121 Arlington Drive, is requesting a variance to change
the use of the property from its existing non-conforming use, a HVAC fabrication and installation company, to another non-conforming use, a building and painting service. Property is
zoned R-15 and R-20. ZBA-727. 2. On a motion by Mr. Bellows and seconded by Mr. Lee, the voted unanimously to GRANT the variance request based on the submitted findings of fact and other
evidence presented with the following restrictions placed on the following use: 1) No detectable noise at the property line shall be generated from 10pm 6 am. 2) New use will include
indoor painting only, with no spray booths. 3) All activity will be confined inside the existing building 4) Only small power tools to be used inside the building. 5) Office and storage
space inside the building. 6) Assembly of scene props inside the building.
11 Chairman called a five-minute recess. The fifth and final case to come before the Board was as follows: Mr. Joseph Franklin Freeman Jr., for Central Carolina Bank, is requesting a
variance for a free standing sign at 5201 South College Road. Property zoned O&I. ZBA-728. Mr. Bellows called Ms. Hines to give an overview of the case. Ms. Hines stated that Mr. Freeman
is the landowner, and CCB is an existing bank in the Monkey Junction area on South College Road. She said the bank is positioned on a parcel zoned Office and Institutional (O&I) which
is part of the Junction Creek Office Park, surrounded by B-2 properties to the north and south. She said it was treated as B-2 when the bank was built and also when the original signage
was erected. Ms. Hines explained that the land was undergoing a lot of development and rezoning at that time, and the maps were very unclear and hard to read. She said the County did
approve it and it has been in place since then. She said the entry sign that Junction Creek Office Park erected now blocks the CCB sign almost completely from view to motorists approaching
from the south. Ms. Hines continued by saying that there has been discussion on whether the sign should be moved elsewhere on the property, or elevated. She said the appellant waned
to move the sign to the middle of the road frontage. Another suggestion was to rotate the sign so that it faces the road, but it was decided that this is not a good arrangement for the
sign because motorists would not be able to read the sign until they looked to the right. She said the sign comes close to meeting the O&I standards, because the O&I district allows
up to 75 square feet in total signage for building and ground signs if you are on the right type of major traffic artery, and they have 81.4 feet. Mr. Bellows asked the height limitation
in that zone. Mr. Bellows called those
to speak on granting the variance request to come forward to be sworn or affirmed for testimony. The Chairman swore in Mr. Ron Perkins. Mr. Perkins stated that he is representing CCB
bank. He said since the Junction Creek sign was erected, their sign is completely blocked coming up College Road North. He said they want to raise their sign and place it directly in
front of the building running parallel to the road, in order to be seen from both directions. Mr. Furman asked if some of the signs in that area are only allowed for a few years, due
to the changed regulations. Ms. Hines said non-conforming signs that were there before the ordinance changed, have to be amortized out according to a sliding scale, which varies according
to the type of sign. Mr. Bellows asked Mr. Moore if there were any issues to changing the variance request from relocating the sign to raising it in the existing location.
12 Mr. Moore said he thought it would be fine to change. Mr. Eckels asked how high the sign would go up. Mr. Bellows said, as part of this variance, the Board has to approve 32 square
feet, but that if they raise it where it is, less than the building height, then the variance is not required for that location. Ms. Hines asked how far the sign is back from the front
property line. Mr. Perkins pointed out on the drawing, that it is forty-six feet from the edge of the sign to the pavement and the setback from the right-of-way is not known. Mr. Bellows
called those to speak on denying the variance request to come forward to be sworn or affirmed for testimony. There was no one present to speak on denying the variance request. Following
discussion the Board made the following decision: Action: 1. Mr. Joseph Franklin Freeman Jr., for Central Carolina Bank, is requesting a variance for a free standing sign at 5201 South
College Road. Property zoned O&I. ZBA-728. 2. On a motion by Mr. Malpass, and seconded by Mr. Lee, the Board voted unanimously to GRANT the variance request for a 32 square feet signage
and the existing setback as shown on the sketch submitted to the Board. There being no further business before the Board, it was properly moved and seconded to adjourn the meeting. All
ayes. Executive Secretary Chairman