ZBA-6-04
1 MINUTES ZONING BOARD OF ADJUSTMENT June 22, 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 June 22, 2004. Members Present Jeffrey Bellows, Chairman Michael V. Lee Horace Malpass Michael S.
Jones Brian Eckel 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 May 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 rpretation in enforcement of 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 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. Earl A. Lee, 8263 Market Street, are appealing the decision of the Zoning Enforcement Official that a business
classified as a landscaping contractor is not a permitted use in the B-1 zoning district. ZBA-731. Mr. Bellows called Ms. Ann Hines to give an overview of the case. Ms. Hines said Mrs.
Lee indicated to her that she wishes to request a continuance of this appeal to sue
about the permissibility of a tenant on her commercial property, who operates a landscaping business and also sells relocated trees. She said the County consented to a continuance continuance
for a month, if the heavy equipment was removed from the site, and the tenant has removed that equipment.
2 Mr. Bellows swore in Mrs. Denise Miller Lee. Mrs. Lee stated that she would like this case continued to the July meeting while she is working with Ms. Hines to get the tenant in compliance
with the Zoning Ordinance. The Chairman called for those to speak in opposition to the Board granting a continuance to come forward. There was no one present to speak on denying the
continuance request. Board Decision: 1. Mr. and Mrs. Earl A. Lee, 8263 Market Street, are appealing the decision of the Zoning Enforcement Official that a business classified as a landscaping
contractor is not a permitted use in the B-1 zoning district. ZBA-731. 2. On a motion by Mr. Lee and seconded by Mr. Jones, the Board voted unanimously to GRANT a continuance to the
July 27, 2004 meeting. The second case to be brought before the Board was as follows: Mr. and Mrs. C. Oakley Mertz, 228 Beach Road North, are requesting a variance from the 5-foot side
setback of New Hanover County Zoning Ordinance, Section 23-42 for two existing elevated air conditioner units and containment structures. Property is zoned R-20S. ZBA-732. The Chairman
called Ms. Debra Wilson to give an overview on the case. Ms. Wilson stated that Mr. and Mrs. Mertz own the property at 228 Beach Road North on Figure Eight Island, and they are requesting
a variance from the five-foot setback for the HVAC platform and units. She said it was recently discovered that the structures encroached 1.26 feet on one side and 1.13 feet from the
property line on the other side. She said the house was constructed in 1996 and the encroachment was discovered when the property was recently surveyed for sale. The Chairman called
for those to speak on granting the variance request to come forward to be sworn or affirmed for testimony. The Chairman swore in Mr. George Edward Coleman III. Mr. Coleman stated that
he is the attorney for Oakley and Mary Mertz. He said his clients did not know of the encroachment until they got a survey of the property. Mr. Coleman said the neighbors on both sides
and the Figure Eight Island Homeowners Association are aware of the situation and have no objection. Mr. Bellows asked how was the homeowners association notified. Mr. Coleman said by
the real estate agent, Margaret Barclay who is the wife of Ed Barclay, the president of the homeowners association. Mr. Bellows asked if the utility lines to the units are underground
and Mr. Coleman said yes.
3 The Chairman called for those to speak in opposition to this variance request to come forward to be sworn or affirmed for testimony. There was no one present to oppose the variance
request. Board Deliberation Mr. Malpass said he has been to the site and the units are depicted perfectly on the photographs and he has no problem with them. Mr. Jones asked if the units
are sitting on concrete or on the ground. Mr. Coleman said the units are on pilings. Mr. Lee asked if the units would have to be moved to the rear of the property in order to comply
with the ordinance. Mr. Coleman said he is not sure, but looking at the survey he would think they would need to be moved to the front of the residence due to the CAMA setback. Mr. Bellows
said a five-foot setback is required for side structures and they could be moved towards the house instead of the front or the rear. Mr. Lee asked if it would be a significant cost to
move the units closer. Mr. Coleman said yes, it would be a significant cost to move the units He said presently, the units are well protected and are almost camouflaged. Mr. Coleman
proceeded to point out on the aerial photographs the natural vegetation screening the units. Mr. Lee said he would like a condition added that if these units are destroyed and replaced,
the replaced units would need to comply with the setbacks. The Chairman asked Mr. Moore if the Board could apply this condition. Mr. Moore said that would be reasonable because the variance
would run with the land and it would put future owners on notice that it is a part of the variance. Mr. Coleman said he would have no objection to that condition if there were a catastrophic
event, but he would prefer not to add that condition if the units were just replaced. Board Decision: 1. Mr. and Mrs. C. Oakley Mertz, 228 Beach Road North, are requesting a variance
from the 5-foot side setback of New Hanover County Zoning Ordinance, Section 23-42 for two existing elevated air conditioner units and containment structures. Property is zoned R-20S.
ZBA-732. 2. On a motion by Mr. Lee and seconded by Mr. Malpass, the Board voted unanimously to GRANT the variance request with the condition that if the units are destroyed by a casualty
event, any replacement of the structures would need to comply with the Ordinance.
4 The third case to be brought before the Board was as follows: Mr. and Mrs. Allen Masterson, 5709, 5711 and 5713 Carolina Beach Road, are requesting a variance from the requirements
of New Hanover County Zoning Ordinance, Section 67-4 for buffer modifications in a B-1 zoning district. ZBA-733. Mr. Bellows called Ms. Hines to give an overview of the case. Ms. Hines
stated that Mr. and Mrs. Masterson are the owners of the Discount House located at 5709 Carolina Beach Road, where they sell kitchen cabinetry, home furnishings, etc. Ms. Hines said
they have added to their front building and also added other buildings over the years because of a growing business. She said the latest addition involves a freestanding warehouse building
on the back side of the property. Ms. Hines said the Zoning Ordinance requires a vegetated buffer for screening on three sides of the new structure; on the north side is an existing
heavily wooded natural buffer with a ditch, and on the other side is a roadway with a buffer. She said the other two sides, where the Ordinance requires a buffer, abut R-15 property
that belongs to the Mastersons, and in essence, they are being required to protect themselves. Ms. Hines said it is an undeveloped residential acreage with no visual exposure to any
residences and the Mastersons are asking for a variance to waive that buffer requirement on two sides. Mr. Bellows asked the number of lots at the location. Ms. Hines said there has
been some re-division of the property to accommodate the needs of the building code for property lines setbacks. She said she believes there are two parcels but there may be more parcels
on record because the property was acquired piecemeal. Mr. Bellows asked where the zoning line was located on the property. Ms. Hines said the zoning line cuts through the property and
wraps around. She said the B-1 parcel is Lshaped and the southernmost end of the L is surrounded by R-15 property belonging to the Mastersons and on the south side is an institutional
facility; a non-residential use. The Chairman called for those to speak on granting the request for a continuance to come forward to be sworn or affirmed for testimony. He swore in Ms.
Cindee Wolf. Ms. Wolf stated that she is representing Mr. and Mrs. Masterson. She then submitted a new aerial drawing to the Board and proceeded to point out the location of the boundary
lines. Ms. Wolf said Mr. and Mrs. Masterson are requesting a variance from the ordinance requirement for buffer yards because they do not see the necessity to plant 158 plants when they
own almost 800 feet to the rear. She said there is more than enough vegetation behind the building. The Chairman called for those to speak in opposition to this variance request to come
forward to be sworn or affirmed for testimony. There was no one present to speak in opposition to the variance request.
5 Board Deliberation Mr. Lee said it would be unreasonable to make them go to significant cost and expense to provide something that is already there, but if things changed, they should
be required to put a buffer. Mr. Bellows asked Ms. Wolf if she had discussed this possible future scenario with the owners. Ms. Wolf said yes she had discussed this with the owners.
She said they would like it all to be commercial but they know that is not possible as far as the zoning. A discussion ensued as to the proper wording of the condition, if the variance
is granted. Board Decision: 1. Mr. and Mrs. Allen Masterson, 5709, 5711 and 5713 Carolina Beach Road, are requesting a variance from the requirements of New Hanover County Zoning Ordinance,
Section 67-4 for buffer modifications in a B-1 zoning district. ZBA-733. 2. On a motion by Mr. Lee and seconded by Mr. Jones, the Board voted unanimously to GRANT the variance request
with the condition that a 30 foot buffer at a 100% opacity, run the boundary lines of parcel number 6163, as shown on the submitted adjacent property owners map, except for those boundary
lines adjoining parcel number 4306 as shown on the same map, and at such time a 30 foot buffer at 100% opacity is not met on parcel number 6163 on all boundary lines other than those
adjoining 4306, that they must comply with the existing buffer requirement. The fourth case to be brought before the Board was as follows: Mr. William F. Canady, 2039 Trinity Avenue,
is requesting a variance from the side, front and rear setback requirements and the maximum height limitations of New Hanover County Zoning Ordinance, Section 51-2, for a new residence.
Property is zoned R-20S. ZBA-734. Mr. Bellows called Ms. Hines to give an overview of the case. Ms. Hines stated that this is a request for a setback variance for a residential property
zoned R-20S �
�irregular in shape, and she directed the Board to view the property on Exhibit A-3. Ms. Hines said although the appeal states the front, side and rear, her cover letter to the Board
will indicate that on of what is the front and the side. She
explained that the Zoning Ordinance defines the front of a lot as the street frontage and in this parcel it would be towards Trinity Avenue. She said for zoning purposes, the side toward
Middle Sound is not of concern to staff because CAMA regulations will dictate the water-orientated setback in this case. Mr. Bellows asked Ms. Hines if it is because the CAMA setback
is greater than the rear yard setback that negates the need of a rear setback Ms. Hines said if you go with the rear lot line, it would be somewhere in the water. She said it is more
restrictive and the practice in administering the zoning setbacks is water-oriented setback,
6 unless it is dictated in the ordinance for a conservation setback, they defer to a CAMA setback and do not apply a zoning setback. Ms. Hines continued by stating that Mr. and Mrs.
Canady have a small piece of property with a thirty feet shoreline buffer setback that is based on CAMA regulations. She said there might be some reduction available to them under the
CAMA regulations but that would restrict their footprint severely, and they do not want to have to ask for a reduction from CAMA or a variance. She said on the remaining two sides abutting
lot three, the Zoning Ordinance would dictate a fifteen feet sideline setback and they are asking for a reduction to five feet. Ms. Hines said on the side labeled as the rear, a rear
yard side setback in R-20S zoning would be twenty-five feet and they are asking for a ten feet setback on that side. She said they are also asking for a slight increase in the allowable
building height, which thirty-five feet is the maximum height and they are asking for forty-two feet. Mr. Bellows asked Ms. Hines if she could recall ever seeing a variance request for
a height like that one, and Ms. Hines said no. 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. Kenneth Shanklin, Attorney Mr. Stuart Benson, Land Surveyor Mr. William Canady, Owner Mrs. Judy Canady, Owner Mr. Shanklin stated that his clients are not trying to hurt his
neighbors, but they also want a house on their property. He said for over a year and a half they have met with the County staff and DCM (Division of Coastal Management). He said the
property has been surveyed three or four times because of impervious versus pervious issues, and at this point they do not have a house designed because they are here to figure out what
they can do with it. Mr. Shanklin directed the Board to Exhibit 3, where he pointed out the location of the lot on the drawing. He also directed the Board to view Exhibit 5, where he
pointed out a rock wall that was removed in order to put in a bulkhead, to be in compliance with CAMA regulations. Mr. Bellows informed Mr. Shanklin that he would need to limit his testimony
to facts pertinent to the requested setback variance. The Chairman reminded Mr. Shanklin that this Board is not involved with NC Division of Coastal Management issues. Mr. Shanklin said
after removing the rock wall, they now have an estimate of how far they can come back from the high water mark line. He said if they use twenty feet it would affect the side footprint
of the house and if they want more than 1,200 sq. ft, they would need to build back thirty feet Mr. Shanklin said they are not trying to interfere with the rights of the neighbors and
they are just trying to make this project workable. He mentioned that there are twenty-five lots there and only about four lots meet the R20S setback requirements. Mr. Shanklin said
they are asking for the relaxation of the rear, side and front so that they can place a home on the lot. Mr. Shanklin referred to Exhibit 4 and pointed out to the Board the height of
the other houses and said his clients only want a height on the same level as the other homeowners. Mr. Bellows asked if they had done elevation shots at the location.
7 Mr. Benson said only to establish the high water line. Mr. Bellows asked if the CAMA setback line has been established. Mr. Shanklin said the CAMA line has been established thirty
feet back. He said when they took out the head wall it slightly moved the CAMA line further out. Mr. Bellows referred to Ms. Hines statement that the County uses the CAMA setback and
do not add the zoning setbacks to it, so that would give more area to work with. Mr. Bellows said it would be more reasonable to refer to the property lines as sidelines, which would
only require a fifteen-foot setback and would reduce the severity. Mr. Shanklin agreed and said this is an unusual configuration and they want more flexibility before spending more money
in getting a house designed. The Chairman called for those to speak in opposition to this variance request to come forward to be sworn or affirmed for testimony. The Chairman swore in:
Mr. William Raney, Attorney Mr. Robert Don Foster, adjacent homeowner Mr. James Andrew Price, adjacent adjacent homeowner. Mr. Winston D. Thompson, adjacent homeowner Mr. Raney asked
Mr. Benson if he attempted to establish the high water mark, as it existed at the time the subdivision was plated. Mr. Benson said he would not have been able to do that because he would
have been too young at the time. Mr. Bellows again reminded the requests.
He said the CAMA high water mark and CAMA setback are not within the privy of the Zoning Board of Adjustment. Mr. Raney said this has to do with whether the applicant actually owns the
property. He asked Mr. Benson if he was familiar with the North Carolina General Statutes 113.205, which has to do with public trust, high water lines and registering claims for submerged
lands. Mr. Benson answered yes. Mr. Raney presented Exhibit 11. He pointed to an area on the map and asked Mr. Benson if it showed an approximate mean high water mark and Mr. Benson
replied yes. Mr. Raney asked if there appeared to be as much high ground above the high water line mark between lots one, two, three, and tract A. Mr. Benson said by scale, it appears
to be less but there is no way to tell for sure. He said high water lines have a tendency to move.
8 Mr. Bellows asked Mr. Raney to get to the point of his questions because there is not a representative present from the Division of Coastal Management to speak on high water marks.
Mr. Raney said there is NC General Statute 113.205 enacted in 1965 that requires any person claiming to have ownership of submerged land to register those claims between 1965 and January
1,1970. He said any claim to submerged land that was not registered was deemed to be abandoned and that property to be owned by the state of North Carolina. He said it appears that some
of this property depicted on the high water map, was below the high water mark in 1955 and some was �
�by filling also becomes the property of the state of North Carolina. Mr. Bellows
said the only portion of the property that is being discussed is north of the DCM designated high water mark. Mr. Raney said the boundary line of the property would be more in the middle
of the lot instead of as shown on the map and that would mean the lot dimensions would be twenty-five to thirty feet from the adjoining property owners to the part where the state of
North Carolina is the owner. Mr. Bellows asked Mr. Raney to explain what he would like the Board to do. Mr. Raney said the Board is being asked to consider setbacks from a property line
that is not a property line. The Chairman explained that they are working off the DCM designated high water mark and the CAMA required building setback. Mr. Raney said the Board should
also recognize that the dimensions of the lot are actually about 15 feet and not 50 plus feet by 100 plus feet. He said the Board should also consider whether it is reasonable to allow
the construction of a house on a lot that may only be 25 ft wide and whether to ignore the setback on the water side and allow him to build up to the lot line. Mr. Bellows asked Mr.
Raney if he is contending that this is an unbuildable lot. Mr. Raney said it is unbuildable as they plan to do it. He said the original owner did not plat it as a lot, but granted riparian
rights to Mr. Foster to allow him the right to the water. He said it is their contention that the property was never intended for development. He said it was never platted as a lot,
never intended to be a lot, and they should not be allowed to build on this lot. Mr. Raney asked Mr. Benson if he did any title research or research of the deeds in connection with his
surveying efforts on the property. Mr. Benson answered no and further explained that Mr. Shanklin provided the research information. Mr. Raney asked Mr. Benson if he was given a deed
and asked to survey based on the description of the deed and Mr. Benson answered yes. Mr. Raney submitted, for record, a copy of an affidavit that he said was from the North Carolina
Department of Justice, which states that there was not a claim for submerged land submitted for this p
roperty. 9 Mr. Bellows said that the Board has to proceed based on the assumption that the information submitted by the applicant is correct and this is not the proper forum to contest
that issue. He then asked Mr. Moore if he had anything to add. Mr. Moore agreed, stating that the Board has to operate under that assumption and when the time comes for a variance the
Board may need to address it then; that the Board cannot come to a conclusion on anything but it is what has been presented. Mr. Canady stated that he is paying taxes on the property
and between his brother and him they have owned the property for at least thirty years. Mr. Canady said he put the property in his name in 1�
� Mr. Raney asked Mr. Canady if his brother paid anything to acquire this property, and Mr. Canady answered yes. Mr. Raney asked Mr. Canady if he
was aware that the deed shows that no revenue stamps were purchased in connection with the transfer of the property. Mr. Canady answered no. Mr. Bellows said the Board does not get into
how people acquire property, whether given to them or purchased. He said it is not a factor of consideration. Mr. Raney asked Mr. Canady if he inquired about the zoning and setback for
this property and Mr. Canady answered no. Mr. Raney asked Mr. Canady if he attempted to block off access across tract A after he acquired the property. Mr. Canady said for two days he
did put up a chain to prevent the neighbors from putting their vehicles in there and getting in way of the work being done using backhoes. He said the neighbors could still walk through
the area. Mr. Raney asked Mr. Canady if he knew what the tax evaluation of the property was prior to the current evaluation. Mr. Canady said no. The Chairman called a 5 minutes recess
Meeting resumed at 7:23 pm. Mr. Winston Thompson stated that he lives at 1909 Bailey Avenue. He said he lives within a city block of the Canady property in the same subdivision and he
has lived there for approximately forty years. Mr. Raney asked Mr. Thompson if he could recall the physical characteristics of the property that the applicant is attempting to get the
variance for at the time when he first moved into that area. Mr. Shanklin objected.
10 Mr. Raney said he was trying to establish the character of the property and whether the substantial justice and some of the other standards can be met, in regards to the variance
request. Mr. Thompson said when they first moved there they had riparian rights. He said they had to push a hill down with a bulldozer, and shortly after that, the area was dredged (he
pointed out the location on the displayed exhibit map). Mr. Raney asked Mr. Thompson if he knew how much width was added to the property by dredging. Mr. Thompson said that took place
in 1973 and it took over half of the property. A discussion ensued as Mr. Thompson pointed out the locations on the map. Following discussion, Mr. Raney called Mr. Andy Price for testimony.
Mr. Price stated that he lives at 2035 Trinity Avenue. He said he has lived at that location since 1991. He said his grandparents acquired the property in 1965. He said they built a
deck overlooking tract A and a concrete and brick three-tiered staircase that went down to the front of the property. He said no one built on the property; they kept a boat there. His
family built a floating dock on the waterway, which they accessed by the stairs. Mr. Raney asked Mr. Price his opinion of how this project would affect the value of his property. Mr.
Price said the project would diminish the value of his property. He said the setbacks from the property line to his house would go from fifteen to five feet, which would diminish his
view of the waterway. Mr. Don Foster stated that his address is 2029 Trinity Avenue. He said he has lived there since the end of January 2003 and his property is next door to Mr. Price.
Mr. Raney asked Mr. Foster if it was his understanding that he has rights of access to the waterway and Mr. Foster answered yes.
encroach on his riparian rights, which was deeded to him in his
chain of title. Mr. Bellows asked if there was a deeded easement through this property. Mr. Raney said yes and he referred to Exhibit 4. Mr. Bellows asked Mr. Raney if he could point
out in the material that he distributed, where the easement is exactly located. Mr. Raney said the description just refers to riparian rights. He said it was intended as a means of access
to get to the water. Mr. Bellows said this is an unknown area and a lot of this is too unclear.
11 Mr. Raney said there is an issue that is relevant to the question of whether this owner has a reasonable expectation to develop this property and whether it does substantial justice
to the other people in the neighborhood. He then asked Mr. Foster if he is licensed by the Real Estate Commission. Mr. Foster said he has been a broker since 1977. Mr. Raney asked Mr.
Foster if he had an opinion as to whether granting this variance would have an effect on his property. Mr. Foster said yes. He added that when he purchased his property he had to have
two appraisals done last January and February because of the ratio of land to building value. He said his house is not worth a lot of money but the view to the water is valuable. He
said the value of his property would decrease if this variance was granted. Mr. Shanklin asked Mr. Foster when he purchased the property and Mr. Foster said in February 2003. Mr. Shanklin
asked if riparian was written into his deed and Mr. Foster said he did not know because he has not read his deed. Mr. David Bishop stated that he has resided at 1917 Bailey Avenue since
1980. He said he has used the landing for several years to take his boat in and out. He said to allow them to build a �
�property and their view of the waterway. He said the house would
need to be built on stilts. Summation Mr. Shanklin: Mr. Shanklin read the following from the New Hanover County Zoning Ordinance Section 122 A. A variance from the terms of the ordinance
shall be granted by this Board if it finds there are practical difficulties and unnecessary hardships in the way of carrying out the strict letter of the Ordinance; B. That the variance
is in harmony with the general purpose and intent of the Ordinance and preserves its spirit; C. In granting the variance, the public safety and welfare have been assured and substantial
justice has been done. Section 23-41 A variance is a relaxation of the terms of the Zoning Ordinance NCGS 153a.345-The literal interpretation refers to the size, setback yard requirements
and height. He said Tract A has 6,582 sq ft and the other tract has 5,828 sq ft. He referred to Exhibit
A-5 and Section 52-2 of the Ordinance, which states: Minimum front yard = 30 feet Minimum side yard = 15 Minimum rear yard = 25 feet Minimum Height = 35 feet Mr. Shanklin provided the
following information for the proposed Findings of Fact: 1. �
�ordinance, specifically, Section 52-2, they cannot secure a reasonable return from, or make reasonable use of his property. This conclusion
is based on the following FINDINGS OF FACT: William F. Canady will not be able to construct a sufficient structure on this lot
12 without the relaxation of the County setback requirements due to the unusual configuration of this lot. The project is only suited for residential construction. 2.
from unique circumstan�
�following FINDINGS OF FACT: It results from the unique circumstances of his
property. 3. actions.
This conclusion is based on the following FINDINGS OF FACT: It is not of the
4. �
�the general purpose and intent of the ordinance and will preserve its spirit. This conclusion is based on all the FINDINGS OF FACT listed above, as well
as the following: It will be in harmony with the general purpose and intent of the Ordinance and will preserve the spirit. The configuration of the Canady lot is not the result of his
actions. 5. and
welfare and will do substantial justice. This conclusion is based on all of the FINDINGS OF FACT listed above, as well as the following: The applicants will maintain the character of
the lot as required. They should be able to build on the lot and the structure would not be higher, but would be similar or below the other houses. Summation Mr. Raney: Mr. Raney
said the lot is actually 2 tracts of land; Tract A was designed by the developer in 1955 for access to the water. Tract A includes the corridor, which is the extension of the line of
Tract A to the waterway. He said there was never any intention for this area to be developed, and the reason they have difficulty building on the lot is because the lot was never intended
as a buildable lot. He read from the New Hanover County Zoning Ordinance Section 51-1: The regulations of this district are to permit development compatible with the preservation of
its rural character and providing limited growth. It is designed to accommodate residential opportunities for those who desire exurban, low-density lifestyle and are willing to assume
the costs of providing many of their own services and amenities while maximizing the protection of resources and the conservation of open space. Mobile homes, duplexes, residential clusters,
attached residential and high density attached residential uses shall not be permitted. He said building on a lot as small as this is not something that is within the spirit and purpose
of an R-20S district. He said they do not meet the standard in item 2B of Section 122-1 (that the variance is in harmony with the general purpose and intent of the Ordinance and preserves
its sprit). He said in item C (in granting the variance, the public safety and welfare have been assured and substantial justice has been done), this does not have a big impact on a
lot of people in New Hanover County, but substantial justice means respecting the rights of the other owners around the property. He said it is not substantial justice to the owners
of the two lots directly behind this lot by obstructing their view to the water.
Number 1 (if the applicant complies with the literal terms of the ordinance, he cannot secure a a reasonable return from, or make reasonable use of his property).
The owner does not have a big investment in this property and it is not necessary to get a variance for him to get a reasonable return or reasonable use of the property. A boating access
could be a reasonable use.
13 Number 2 (hardship of which the applicant complains (results/does not result) from unique .
There are some things that are unique to the lot because the lot was never intended to be buildable. Number 3 (�
�). The evidence has shown
investigating its potential for development. Mr. Raney said he has already addressed Items 4 and 5. Mr. Lee asked Mr. Raney if it is his
position for the Board to make a finding as to whether he owns the property or not, based on the information submitted. Mr. Raney said he would ask that the Board make a finding that
there is a question about the ownership of the property and a variance should not be granted until that matter is cleared up. He said the burden lies with the applicants to prove that
they own what they say they own. He also said that there might not be sufficient information presented today for the Board to make that conclusion. Mr. Shanklin said this is outside
the jurisdiction of this Board. He said they do not have to try title at this Board. Mr. Bellows asked Mr. Raney if he had any restrictive covenants indicating that it was not intended
to be built upon. Mr. Raney said no, it is not shown as a lot on the subdivision map; it came into existence later. Board Deliberation Mr. Lee said for the purpose of discussion, the
Board should assume that they own what they say they own and address that if they did own that, would a variance be granted. Mr. Bellows asked Mr. Moore if the Board would formulate
a variance motion, is it appropriate to put a condition that it is subject to validation of the lot lines and title. Mr. Moore said the Board could include that because it goes to the
heart of what the Board has to base the variance on. He said the Board does not have the jurisdiction to determine the lot lines or the ownership but rather basing their decision on
both assumptions. Mr. Bellows said the real question for the Board is whether they need a variance to build on the lot
residential building height is thirty-five feet. Mr. Lee asked Mr.
Canady if he knew the property was not buildable when he purchased the lot from his brother. Mr. Canady answered no. He said the sewer was already there and he could see no reason why
they could not build. Mr. Lee asked Mr. Canady if he was aware of a variance that was requested in 1994. Mr. Canady answered yes.
14 Mr. Lee asked Ms. Hines if the previous variance related only to Tract A or the entire L. Ms. Hines said it related to the entire L. She said that variance request was for the setback
from the property line that abuts Price and Foster, which is lot three. She said they asked for a setback of three feet from that property line and this variance is asking for five feet
from that property line. Ms. Hines said in 1994, there was a thirty-foot setback from the mean high water line and now those regulations have changed and some provisions for mitigation
of that setback were built into the shoreline buffer provisions. Mr. Lee said it seems that Mr. Canady knew there was an issue with whether this lot was buildable or not when he purchased
it. He added that as to whether the hardship is the result of his own actions, he purchased the property knowing there was an issue.
Board has to make a decision on the variance request.
He pointed to the area on the map and asked Ms. Hines about the CAMA setback line on the rear. Ms. Hines said the CAMA setback is 20% of the depth of the lot, and as long as the house
footprint is kept at 1,200 square feet or below, what remains is an eleven or twelve feet setback from mean high water. She said there is an expectation that you not move any closer
to the water than you have to. Ms. Wilson said they could apply that rule up to eleven feet; however, they would have to set the house as far back as possible to meet the County setbacks
with a 1,200 square foot footprint of the house only. Ms. Wilson said he is limited to 25% of entire square footage of the lot above mean water for impervious coverage, which will limit
the size of the house. Ms. Hines said it is her understanding that Jim Gregson with Coastal Management said a twenty-five foot building setback from mean high water is what you would
have if you apply that CAMA rule. Mr. Bellows said one of the side yard setbacks in the northwest direction is the line that is shared with two neighbors that are opposing this variance
request, and he would have a problem granting a variance on a fifteen-foot setback. A discussion ensued as Mr. Shanklin pointed out the setback areas in question on the map. After discussion,
Mr. Raney said if the variance is granted, he wants a condition added that subject to review by staff of the propriety of the subdivision of this property as a separate lot and if found
that it was the result of an illegal subdivision, the variance would not be valid. Mr. Moore said that would be a separate enforcement issue for the Planning staff. Ms. Hines said occasionally
their department is asked to withhold approval on a building permit if there is a violation of the subdivision regulation. She said the Planning staff would need to make that determination
along with the Legal Department. Mr. Bellows said this is a valid condition and if it is an illegal subdivision the Board should not be granting a variance.
15 Mr. Moore said his only concern is if, hypothetically, it was an illegal subdivision and it was done a long period of time ago, there may have been some statute of limitations and
Planning staff any enforcement. He said then you would have a variance with a condition attached that would otherwise not have any legal significance. A discussion
ensued concerning the Findings of Fact. Mr. Moore provided the following proposed Findings of Fact: COUNTY OF NEW HANOVER, NORTH CAROLINA ORDER GRANTING VARIANCE The Board of Adjustment
for the County of New Hanover, having held a public hearing on June 22nd, 2004 to consider application number ZBA-734, submitted by William F. Canady, a request for a variance to use
the property located at 5600 Carolina Beach Road in a manner not permissible under the literal terms of the ordinance, 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 the applicant cannot secure a reasonable return from, or make
reasonable use of his property, while still complying with the literal terms of the ordinance. This conclusion is based on the following: FINDINGS OF FACT: The subject lot is so small
and oddly shaped that it is impractical to construct a house under the applicable setbacks. 2. It is the Board's CONCLUSION that the hardship of which the applicant complains does result
from unique circumstances related to the applicant's land. This conclusion is based on the following FINDINGS OF FACT: As described above, the lot is unusually small, and is further
limited by the proximity to the water because of CAMA and other regulations. There are houses on the surrounding lots similar in size as that contemplated by the applicant. 3. It is
the Board's CONCLUSION that the hardship is not the result of the applicant's own actions. This conclusion is based on the following FINDINGS OF FACT: The subdivision was created before
the County Zoning Ordinance went into affect. The applicant did not create the lot. There does not appear to be any alternative which would render the lot buildable, in a meaningful
sense, other than a variance.
16 4. It is the Board's CONCLUSION that, if granted, the variance would be in harmony with the general purpose and intent of the ordinance and would preserve its spirit. This conclusion
is based on all the FINDINGS OF FACT listed above, as well as the following: The area at issue is relatively open, more so than many other areas which are similarly zoned, and the lot
meets the requirements of R-20s zoning. The proposed variance would allow for a house similar to those surrounding the subject lot. 5. It is the Board's CONCLUSION that, if granted,
the variance would secure the public safety and welfare and would do substantial justice. This conclusion is based on all of the FINDINGS OF FACT listed above, as well as the following:
Any residence allowed under this variance will not be taller than the houses on adjacent lots. The applicant has been paying taxes based upon a value of approximately $450,000, and yet
the lot, in the absence of a variance, is not buildable from a practical standpoint. The Board has attempted to determine the minimum variance possible which will allow the applicant
to build a reasonable home. Therefore, on the basis of all the foregoing, IT IS ORDERED that the application for a VARIANCE be GRANTED IN PART AND DENIED IN PART, subject to the following
conditions: The following setback variances are granted (references are to Survey for William F. Canady, by Stuart Y. Benson and Associates, of Tract A Ocean View & Adjacent Tract, Revised
May 1, 2003, Map Book 6, Page 4, Deed Book 1866, Page 1123). Front -The ordinance requires 30'; the applicant requested a 20' setback. No variance was granted as applicant originally
construed front yard to be at the southwest property line. The southwest side setback is controlled by the presence of the neighborhood water access easement over Tract A. Side -The
ordinance requires 15'; the applicant requested a 5' setback from the southwest side; a 10' setback is granted. This is the side toward what are, as of the date of the variance, the
Foster and Price properties. Side -The ordinance requires 15'; the applicant requested a 10' setback from the northwest side; none granted. The applicant submitted this as a rear yard,
then in discussion in meeting it was stipulated it could be considered a side yard; in any event, no variance was granted on that side so 15' applies. Water side (rear) -no variance
required or granted as County will honor CAMA setback from high water line, whatever that may be. The request for a height variance was denied. The granting of the variance was based
upon the assumptions that the lot at issue was part of a legal subdivision, that the applicant owned the lot.
17 Board Decision 1. Mr. William F. Canady, 2039 Trinity Avenue, is requesting a variance from the side, front and rear setback requirements and the maximum height limitations of New
Hanover County Zoning Ordinance, Section 51-2, for a new residence. Property is zoned R-20S. ZBA-734. 2. Mr. Jones made a motion to GRANT the variance request for a setback of 10 ft
along the lot line of 44° 52 minutes running at 101.72 ft, based upon the assumption of the proposed lot lines, ownership and subdivision development in accordance to the findings of
fact presented by Mr. Holt Moore III. The motion was seconded by Mr. Eckel. All ayes. The fifth and final case to be brought before the Board was as follows: Archmill Place, Inc., by
Mr. 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 June 22, 2004 Board Meeting). Mr. Bellows called Ms. Hines to give an update of the case. Ms. Hines stated that they are presently awaiting the completion of
a few details such as,
Council will need to pass a formal resolution of acceptance of the water system. She said that is expected to take place at their July 20, 2004 meeting. She
said the County has consented to
have water. Board Decision 1. Archmill Place, Inc., by Mr. 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 June 22, 2004 Board Meeting). 2. On a motion by Lee and seconded by Mr. Jones
the Board voted unanimously to GRANT a continuance of this case to the July 27, 2004 meeting. There being no further business before the Board, it was properly moved and seconded to
adjourn the meeting. All ayes. Executive Secretary Chairman