ZBA-7-04
1 MINUTES ZONING BOARD OF ADJUSTMENT July 27, 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 July 27, 2004. Members Present Jeffrey Bellows, Chairman Mike Furman, 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 Hattie Moore, Clerk The meeting was called to order
by the Chairman, Mr. Jeffrey Bellows. 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
appellants have thirty days in which to appeal any decision made
by the Board to Superior Court. It was properly moved and seconded to approve the minutes of the June 2004 Board meeting. Mr. Bellows swore in County staff Ms. Ann S. Hines. 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. (Continued from the June 22, 2004 meeting). Mr. Bellows swore in Mrs. Denise Miller Lee. Mrs.
Lee stated that she would like this case continued to the September meeting because she is on the agenda for the Planning Board meeting August 7, 2004 and she is also on the agenda for
the County Commissioners meeting September 7, 2004. The Chairman asked Ms. Hines if staff had any comments.
2 Ms. Hines said staff has no objections. She said it could work out so that Mrs. Lee can continue the activity on the property as it is now. 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. (Continued from the June 22, 2004 meeting) 2. On a motion by Mr. Lee and seconded by Mr. Jones, the Board voted unanimously to GRANT a continuance to the September 28, 2004
meeting. The second case to be brought before the Board was as follows: Ogden Twelve Properties, L.L.C., 7750 Market Street, is requesting a variance from the requirements of New Hanover
County Zoning Ordinance, Section 67-7(3) for buffer modifications in a B-2 zoning district. The matter matter is resubmitted to the Board due to proposed changes in the site design following
previous approval of a similar variance. ZBA-735. Mr. Bellows called Ms. Ann Hines to give an overview of the case. Ms. Hines stated that several months ago the Board considered and
granted a variance from the buffer width requirement for this project. She said this is a mixed-use development under a Special Use Permit in the B-2 zoning district, with commercial
buildings on the front of the property and high density residential on the back portion. Ms. Hines said the property to the northeast is zoned R-15 and the Zoning Ordinance requires
buffering on the portion that is R-15. She said the remaining portion of the tract zoned R-15, is mainly wetlands and most likely would not be developed. She said this Board previously
granted a variance for a reduced buffer width and stipulated, as a condition of that variance, that the building arrangement and site layout be as presented at that time. Ms. Hines said
the adjacent property was rezoned and the project was approved by the County Commissioners, however when the technical aspects of development proceeded they found that the water table
was higher on this property which created extreme difficulties installing the type of exceptionally designed storm water system that would be required for this density of development.
Ms. Hines said the Zoning Ordinance limits residential development in the resource protection areas to 2-1/2 units per acre, and that would apply in this case, unless this higher standard
of storm water system were installed. She said the type of system that was anticipated for this project could not be used without adding many feet of fill which would totally change
the character of the development. Ms. Hines said the site was rearranged; dwelling units were reallocated to some buildings, buildings were rearranged and some ponds enlarged in order
to accommodate the changes in the storm water system. She said this site rearrangement had to be resubmitted to the Planning Board who gave a favorable recommendation and now they are
going to the County Commissioners at their next meeting. She said in the meantime the developers have to come back to this Board to repeat the request for that buffer width reduction
because of the condition placed on the previous variance. This is the same width
3 of buffer that was granted the first time and with the exception of the larger ponds there, it is not an appreciable difference in the site arrangement. Ms. Hines said one building
has been deleted and its units divided between two others, and changes are largely in the rear of the property back towards the ponds. Mr. Bellows asked if anything else changed other
than the arrangements of the buildings, the reduction in the number of buildings, and the addition of the ponds. Ms. Hines said no. She added that the enlargement of the ponds would
necessitate removal of some vegetation but there are some mitigating conditions being placed on the Special Use Permit to address that issue. She said those conditions have to do with
a proposal for wetland vegetation to be planted in the pond areas. The Chairman called those to speak in favor of granting the variance request to come forward to be sworn or affirmed
for testimony. Mr. Bellows swore in Ms. Cindee Wolf. Ms. Wolf stated that she is representing the developers and they are not asking for anything different as far as the provision of
a buffer yard. She said they are providing the 100% visual opacity to the six-foot height. Ms. Wolf said they did have a pond in the rear but due to the rearrangements of the buildings
and the way that the variance or modification of the buffer yard carried with the approval, the approval had to be modified so this approval needed to be modified also. She said if they
had not put the ponds in and remained with the under-pavement infiltration, so much fill dirt would have taken up a lot more trees than using the multiple ponds. She said the ponds will
be designed such that there will be vegetative shelves along all of them and they will serve as a cumulative filter; the water goes into one and then another one, and it all gets filtered
out for the purpose of the environmental sensitivity of the area. Mr. Bellows asked it there were any wetland development issues involved with this project. Ms. Wolf said no. She said
they identified the wetlands ahead of time and the wetlands towards the south also have an adjoining strip as a resource in the COD (Conservation Overlay District). She said they have
applied the COD setback from the swamp forest area and are not encroaching on the wetlands with any type of development or impervious surface. Mr. Malpass asked the number of ponds in
the original plan. Ms. Wolf said originally, there was one pond and they intended to put all the rest under ground. Mr. Bellows asked if building number two is encroaching into any required
buffers. Ms. Wolf said no and further explained that adjoining land was rezoned so the zoning and buffer lines changed. 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.
4 Board Decision: 1. Ogden Twelve Properties, L.L.C., 7750 Market Street, is requesting a variance from the requirements of New Hanover County Zoning Ordinance, Section 67-7(3) for buffer
modifications in a B-2 zoning district. The matter is resubmitted to the Board due to proposed changes in the site design following previous approval of a similar variance. ZBA-735.
2. On a motion by Mr. Malpass and seconded by Mr. Furman, the Board voted unanimously to GRANT the variance request. Question: Mr. Lee asked if the request is to approve the new site
layout and if it changes again would they have to come back to the Board. Ms. Wolf said they were not requesting a variance pertaining to the layout, that the request is for a buffer
yard modification and not building setbacks. Ms. Hines said there is not a condition on the proposed findings of fact and if the Board wants to predicate it on this precise layout again,
the condition needs to be added to the motion; otherwise if approved on the basis of the proposed findings then it would just be a variance from that setback. A discussion ensued to
determine whether additional language needed to be added to the motion. Following discussion, the Board agreed with Ms. Hines when she said that this is a special use project and if
something has to dramatically change and need to go back to the County Commissioners, then it would have to come back to the Board, but any minor changes can be handled at staff level.
The third 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 the last remaining items to be settled on for the acceptance of this system by the City Council was scheduled for July 20. Ms. Hines said
she has not heard from anyone whether it has been accepted or not and she asked the Board if this appeal could be dismissed. Mr. Bellows noted that there was no one present to testify
in the Archmill case. He then opened the floor for Board discussion. Board Discussion Mr. Furman said he thinks the Board needs to find out if it is indeed settled. Ms. Hines said it
is incumbert upon the appellant to keep the Board informed of what is going on because they are the ones that appealed the determination.
5 Mr. Bellows said instead of dismissing it the Board should make a decision based on the testimony �
� Ms. Hines said the appellant has installed the water system. They have done exactly what they
have been asked to do. Mr. Lee asked if they dismiss the appeal, does it means the determination stands and if there is an issue, would zoning staff handle that. Ms. Hines said she does
not anticipate an issue and she does not know what has happened unless City Council has not yet signed the resolution. Mr. Lee said if the Board dismissed the case, it would trigger
their appeal period in the event they nce, and they would have to go to Superior Court in order to preserve their appeal. Mr. Bellows said the appellant
was aware that their case was continued to tonight, and he feels the case needs to be closed. Mr. Jones said dismissing the case would mean �
� Mr. Moore said dismissing would be like a sanction for their not showing up tonight. He said the two options would be to either affirm the decision of the Zoning Enforcement staff
or overrule the findings of the Zoning Enforcement staff. Ms. Hines said if it is not dismissed now, the Board could be in the same quandary next month. She said that she does not have
any documentation on which to base a formal written finding of compliance because no one has given her any documentation. Mr. Bellows said he does not understand the difference between
dismissing the case and finding that the appeal will not be upheld. Mr. Moore explained that the only basis he could see for dismissing the case is that they asked for a continuance
and do not show up to present their case. He said if the Board dismisses the case, they would appeal that decision to court and the court would ask if it was an abuse of discretion for
the Board of Adjustment to dismiss the case because they did not appear. The other avenue is if the Board upholds the decision of the Zoning Enforcement Official, and if that were appealed
to court, the court would ask if the Board had evidence in support of their decision to affirm the Zoning Enforcement Official. He said the problem is they do not have evidence. Ms.
Hines said she could give a synopsis of what they based their order on, the section of the Ordinance that is involved and the fact that the water system was not installed when the City
utility service became available. Mr. Malpass asked if after Ms. Hines gives her synopsis, would the Board have the option to �
� Mr. Lee said he wanted to make sure there was enough evidence on record to make their decision.
6 Mr. Jones asked if there was enough evidence for the appeal to be valid since the appellant
Mr. Lee said procedurally the appeal still sits before the Board. Mrs. Hines read into record the Notice of Violation letter dated October 3, 2003 and addressed to Mr. Archie McGirt
at 2000 Ivydale Lane in Wilmington, NC 284045, Ms. Mildred McGirt at 5052 Carolina Beach Road in Wilmington, NC 28412 and Archmill, Inc. at P.O. Box 685 in Wrightsville Beach, NC 28480.
(See Attached) After reading the letter, Ms. Hines stated the notice of violation letter indicates that the City was on board with the application to the State with approval of this
water system back in 1999. She said subsequent to that point, the City had a practice of imposing development standards even outside their limits when City utilities are involved. She
said they encountered a problem on this subdivision because privately maintained streets were incorporated with a narrower width than the City embraces in its street standards, so the
City withdrew its commitment to give water to this subdivision. Ms. Hines said the developer had installed the dry water system in accordance with the Ordinance, but had to go back and
install individual wells to provide water to the lots. She said later some of the residents made a case to City Council that the City should relax that street standard requirement and
give water to the subdivision and the City agreed. She said at that point public water supply was available, as it is called for in the County Zoning Ordinance, but the developer did
not take steps to connect. She said County staff then found him in violation and subsequently he agreed to install the water system and did install it. Mr. Moore added that in the agreement
that the County and the developer entered into, it was stated that the fact that they were building the system was not an admission that they had to build the system. Mr. Bellows said
the appellant chose not to be present at this continuation and cannot offer testimony today. He asked if the appellants submitted proposed findings of fact for their appeal. Ms. Hines
said they did not submit a proposed finding of fact but submitted some argument. Mr. Lee read the submitted appeal letter. (See Attached) Mr. Bellows asked when public water is not available,
is it a requirement of the Zoning Ordinance to construct the water mains that would be required, if public water was available. Ms. Hines referred back to the violation letter. She read
Section 53-1 of the Ordinance: If public water is not available, then the water system infrastructure must be installed in accordance with County standards and connected when a public
supply becomes available. Mr. Bellows said assuming all the lots were sold except for one, who would pay for the connection.
7 It was pointed out from the record that the City agreed to relax street standards in February 2003, making public water available, and the developer still retained ownership of
the common areas until they were transferred to the homeowners association in July 2003 Following discussion, the Board made the following decision: 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 Mr. Lee and seconded by Mr. Furman, the Board voted to DENY the appeal and UPHOLD the decision of the Zoning Enforcement
Official. All ayes. Mr. Bellows asked Mr. Moore and Ms. Hines if the Board should also make a decision on the variance request at this point. Ms. Hines presented two points about the
variance request. She said the first point is the request is a moot point at this time because they installed the water system and the second point is that the Ordinance definition of
a variance reads: A variance is a relaxation of the terms of the Zoning Ordinance where such variance will not be contrary to the public interest and where, owing to conditions peculiar
to the property and not the result of the action of the applicant, a literal enforcement of the Ordinance would result in unnecessary and undue hardship. As used in this ordinance, a
variance is authorized only for height, area, and size of structure or size of yards and open spaces; establishment or expansion of a use otherwise prohibited shall not be allowed by
variance, nor shall a variance be granted because of the presence of nonconformities in the zoning districts or uses in an adjoining zoning district. Ms. Hines said she would submit
that it is not appropriate to ask for a variance. A discussion ensued concerning the variance request. Following discussion the Board made the following decision: 1. A motion was entered
by Mr. Furman to DENY the variance request, as it does not meet the criteria set forth in the stated definition of a variance. Mr. Malpass seconded the motion. All ayes. There being
no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Chairman