ZBA-5-04
1 MINUTES ZONING BOARD OF ADJUSTMENT May 25, 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 May 25, 2004. Members Present Jeffrey Bellows, Chairman Vice-Chairman
Michael V. Lee Horace Malpass Michael S. Jones Ex Officio Members Present Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary Debra D. Wilson, Zoning Enforcement
Official Hattie Moore, Clerk The meeting was called to order by the Chairman, Mr. Jeffrey Bellows. It was properly moved and seconded to approve the minutes of the April 2004 Board meeting
with the following correction: Archmill Place continuance case -page 5, paragraph 2 (Mr. Bellows speaking However, if the Board agrees with the County, the Board still would not
fine Archmill, Inc. unless there is an unsatisfactory ending). Mr. Bellows said the statement should read (However, if the Board agrees with the County, the County still would not
fine Archmill, Inc. unless there is an unsatisfactory ending). 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
hat appellants have thirty days in which to appeal
any decision made by the Board to Superior Court. Mr. Bellows swore in County staff Ms. Ann S. Hines and Ms. Debra D. Wilson for testimony. The first case to be brought before the Board
was as follows: Mr. and Mrs. J.J. Peterson, Jr., 153 Spring Creek Lane, are requesting a variance from the side setback requirements of New Hanover County Zoning Ordinance Section 52-2
for an existing residence. Property is zoned R-20. ZBA-730. Mr. Bellows called Ms. Debra Wilson to give an overview of the case.
2 Ms. Wilson stated that Mr. and Mrs. Peterson are requesting a variance from the 15-foot side yard setback requirements of Zoning Ordinance Section 52-2 for a single family residence.
She said this residence was constructed in 1982 with valid permits. She said they just recently purchased the property and it was discovered that the left side encroaches approximately
1.2 feet into the side yard setback, which should be a 15-foot setback. She said the property is zoned R-20. The Chairman called for those to speak on granting the variance request to
come forward to be sworn or affirmed for testimony. He swore in Mr. Jay Peterson and Ms. Julia LaChance. Mr. Peterson first presented a copy of a document to the Board that he said shows
where the seller checked no on the line that asked if there were violations of building codes, zoning ordinances, restricted covenants or land use restrictions. He said per the survey,
one corner is 13.8 feet and the other side is 26 or27 feet. He said they plan to build two decks, a porch, a small heated area for a dining room, a two-car garage and a shop. He said
it would be an extreme hardship to have to move the house. He said a house moving company gave them an estimate of $30,000 to pick the house up and rotate it slightly, which would also
require the installation of new footings, foundations and all the utilities connections would have to be modified. He said the estimated total cost would be between $35,000 to $40,000.
Mr. Lee asked if the survey was done after they purchased the house and Mr. Peterson said yes. The Chairman called for those to speak on denying the variance request to come forward
for testimony. There was no one present to speak on denying the variance request. Board Decision: 1. Mr. and Mrs. J.J. Peterson, Jr., 153 Spring Creek Lane, are requesting a variance
from the side setback requirements of New Hanover County Zoning Ordinance Section 52-2 for an existing residence. Property is zoned R-20. ZBA-730. 2. On a motion by Mr. Malpass and seconded
by Mr. Furman, the Board voted unanimously to GRANT the variance request. All ayes. The second 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 April 2004 meeting). The Chairman called Ms. Hines for an update on the case. Ms. Hines stated that she has been monitoring the site closely at least once a week over the past
month and has stayed in contact with the civil engineer, Mr. John Klein. She said there has been continued progress and effort to complete this project and until this afternoon she thought
the City had accepted it and was ready to accept applications for water meters. However, Mr. Bob Bell, of the City, telephoned her to report that his supervisor discovered some other
small items that need
3 to be addressed. She said Mr. Klein informed her that there is a meeting scheduled with the �
�meet on the site to finish this work. Mr. Malpass asked Ms. Hines if the remaining items
are something that the County was aware of and if they would be included in the punch list. Ms. Hines said she does not have a written account of this and only learned of it by telephone.
She said the items include some scattered gravel, a fire hydrant that needs painting, and some pavement clean up. She explained that even though this project is not in the City, the
City imposes City standards on projects when they sell them water. She said this is the third punch list. The Chairman called for those to speak on granting the request for a continuance
to come forward to be sworn or affirmed for testimony. The Chairman swore in Mr. Mr. Alton Lennon, Attorney for Mr. McGirt Mr. Alton Lennon stated that a City official did inform them
that the punch list had been completed. He said these are recent additions but they intend to complete it all. Mr. Furman asked when this punch list was issued. Ms. Hines said it was
sometime between lunch and 3:45 pm today. She said she needed to have something from the City before she could issue a formal letter of compliance to Mr. McGirt and she had been trying
to get confirmation from the City on the status of the acceptance of the water system for a couple of weeks. She said Mr. Jim Bonser with Public Utilities, sent her a copy of an email
memo that he generated last Thursday, which stated that it was subject to another department at the City approving this system. Ms. Hines said she had already received an email from
that department that predated the certification of the water system. Ms. Hines said she called that department to clarify what was going on, and was told that they needed to make another
trip out there with the supervisor before making a decision. She said that is when the other items were added to the list. She added that on the 20th, the State posted on their website
that the water system had been accepted and certified. Mr. Bellows asked Mr. Lennon what they are requesting from the Board tonight. Mr. Lennon said they need another continuance in
order to get something official from the City and then Ms. Hines could issue a letter of compliance and afterwards they would withdraw their appeal. Mr. Bellows asked Ms. Hines if there
has been uniform progress made on the punch list. Ms. Hines said there has been steady progress. She said the pavement has already been patched and as of the end of last week everyone
assumed that this water system would be ready. The Chairman called for those to speak in opposition to this case being continued to the June 22 meeting to come forward. The Chairman
swore in Dr. Robert Wilson, President of the Archmill Place Homeowners Association and Mr. Bernardino Barini, resident at Archmill Place.
4 Dr. Wilson stated that they are thankful for all the progress that has been made. He said it is now a month past the deadline of the 25th and things are still not satisfactory with
the City. He said it is a misconception that the City is adding things to the punch list; they are going back to see what has been done and to make sure it is within their standards.
He said they will abide by the decision of the Board but they also want to express their displeasure with the amount of time it is taking. He stated, for the record, that they might
have to come back to the Board for additional things. Mr. Furman asked Dr. Wilson what it is that he wants the Board to do. Dr. Wilson said, in their opinion, Mr. McGirt will not complete
things unless he is compelled to do so. He said they want the Board to come to a firm position and not keep granting continuance after continuance. He said they want some reassurance
from the Board that they have had enough and that this project needs to be completed. Mr. Lee told Dr. Wilson that he understands his frustration b
the continuance of the appeal. He further explained that if the Board denies the motion for the continuance of the appeal, the appeal would have to be heard tonight.
He said the Board would then decide whether to uphold the Zoning Enforcement Official or not, and if the result would be to not uphold the Zoning Official, the risk to deny the continuance
and to hear the appeal when they are almost done with the project, would not benefit the residents. Mr. Bellows said the Board exists for two purposes and they are (1) to consider granting
variances to the Zoning Ordinance and (2) to consider appeals of the Zoning staff, as in this case. He said the Enforcement Official ordered Archmill Place to provide connections to
the City of Wilmington water lines and Archmill Place is appealing that order. He said they all sympathize with the �
�achieving a connection to City water for the residents. Mr. Barini said
the punch list is a continuation of the first list and not a new list. Mr. Lennon said the punch list that they received today was created this afternoon. He said as of last week, Mr.
Bell informed them that they had completed all the things that he had asked them to do and therefore, they thought that it was completed. Mr. Lennon also said that the Archmill Place
homeowners were offered the opportunity to be a party to the agreement between Mr. McGirt and the County and they chose not to do so. He further stated that the agreement says if there
are good reasons for extensions under that contract time, it would be granted, but they have never asked for an extension. He said all they want to do is finish this project. Board Deliberation
Mr. Malpass said
it is very important to grant this continuance because it would be defeating to what has already been accomplished to stop at this point. Mr. Furman also agreed, saying that from the
onset, the homeowners were in agreement to continue with this project. He said he does not believe their position has changed but it is their frustration in not knowing if this would
be the last request for a continuance.
5 Mr. Moore said the Board has only two options and they are either to decide this case or continue it to the next month. He said there are not provisions for placing fines and too much
pressure and responsibility is being placed on this Board for whether the work gets done or continued. He said those are sideline issues from whether the order is being completed pursuant
to their agreement or whether extensions ought to be granted under it. Mr. Bellows asked that two things be taken back to the Archmill Place residents. (1) The County Officials, County
staff and the County Legal Department were able to work out an agreement with Archmill Place that has resulted in the construction of the waterline. (2) If Archmill Place had decided
to fight this and did not sign the agreement, there is no assurance that the courts would have found that the water lines had to be installed and the residents would then have nothing.
He said granting the continuance does not harm the residents, as far as he can tell, and it would be counter-productive for the residents and no one else. Mr. Jones said the County is
satisfied with the progress that has been made and the progress is still ongoing. He said he could not see any reason to deny the request for a continuance. Board 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 March 2004 meeting.) 2. On a motion by Mr. Lee and seconded by Mr. Furman, the Board voted unanimously to GRANT the continuance request to the next scheduled
Zoning Board meeting on June 22, 2004. There being no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Chairman