ZBA-8-04
1 MINUTES ZONING BOARD OF ADJUSTMENT August 24, 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 August 24, 2004. Members Present Jeffrey Bellows, Chairman Michael V. Lee Michael S. Jones Brian
Eckel Carmen Gintoli Ex Officio Members Present Holt Moore III, Assistant County Attorney Debra D. Wilson, Acting 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 July 2004 Board meeting. Mr. Gintoli abstained. The first case to be brought before the
Board was as follows: Mr. and Mrs. Scott P. Hansberry, 6508 River Vista Drive, are requesting a variance from the COD (Conservation Overlay District) setback requirements of New Hanover
County Zoning Ordinance, Section 59.4 to construct a new single-family residence. ZBA-736. Mr. Bellows swore in County staff Ms. Debra D. Wilson. The Chairman called Ms. Wilson to give
an overview of the case. Ms. Wilson stated that Mr. and Mrs. Hansberry are seeking a variance for their property located at Lot 5 Elliot Place off River Road. She said the lot has two
different Conservation Overlay District setbacks; a 75 foot setback on the north and west sides and a 50 foot COD setback on the east side. She said they are requesting variances of
22.5 feet on the north side and 9.4 feet on the west side and also a 5 foot variance on the east side. Ms. Wilson said the lot was originally platted in 1995
2 and the COD on that original plat versus what is out there now does not match, which is the reason they are requesting a variance. 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: Mr. Bill Raney-Attorney Mr. Philip Tripp Engineer Mr. Pete Avery Former Planner
with New Hanover County Planning Department Mr. Ron Jessup Adjoining property owner Mr. Scott Hansberry -Owner Mr. Raney stated that he is the attorney representing Mr. and Mrs. Scott
Hansberry. He said there are two items that needed to be clarified. He said the first item involves the 22.5-foot, the 9.4-foot and the 5-foot variance requests mentioned by Ms. Wilson
in her statement. Mr. Raney said that would have been the distances if the house remained as it was originally designed, but Mr. and Mrs. Hansberry have elected to move the house slightly
to the west and rotate it slightly counterclockwise, which would eliminate the east side setback but creates a greater setback on the west side. He then directed the Board to view Exhibit
9, which shows the site plan with the structure. He pointed out the setback along the south side of the house, which he said equals to thirty-nine feet, and measuring that encroachment
perpendicular to the closest point of the COD line is about thirty feet. Mr. Raney said the other clarification has to do with the narrative submitted along with the variance request
application. He said at the top of page two the narrative states: the Hansberrys have decided to move the house to the west and to rotate it slightly counterclockwise in order to preserve
the oak trees. Mr. Raney said the trees along the eastern boundary line are not a factor. Mr. Raney then directed the Board to Exhibit 1. He said this map shows the survey lines by Hobbs
Survey in 1998 highlighted in orange, the CAMA line staked by Ms. Wilson in 2004 highlighted in yellow, and a third line that coincides with the Hobbs Survey line except on the north
end where it extends up an additional twenty-five feet. Mr. Raney said that line was marked incorrectly. Mr. Raney continued by stating that the subdivision was created in 1993. He pointed
out that Ms. Wilson said 1995 but the map he presented to Ms. Wilson of the subdivision, was actually a revision map. He said the COD line on each of the lots that borders the marsh
is incorrectly shown as a CAMA setback line. Mr. Raney pointed out that the map also has a Certificate of Approval on it, which was affixed by the Planning Department for recordation.
He said the Hansberrys started looking at this lot several months ago and they got all the background information from the previous owner. He said the Hansberrys had house plans drawn
by an architect and at some point there was an onsite meeting with Ms. Wilson and the surveyor. He said it was then discovered that the CAMA line that Ms. Wilson had marked was much
different than the earlier line on the map. Mr. Raney said it is now a much smaller area to build and the house they plan to build would not fit on it. He said this constitutes a hardship
and it does meet the spirit and intent of the Ordinance. Mr. Gintoli asked if the Board have the authority to change or override the CAMA setbacks. Ms. Wilson said this is a Conservation
Overlay District setback, which is a County imposed ordinance. She explained that back in the earlier years the surveyors did frequently confuse the CAMA and COD setback lines.
3 Mr. Bellows asked what was the CAMA setback. Ms. Wilson said the CAMA setback is 30 feet from the normal high water line and the CAMA jurisdiction area is 75 feet from the normal high
water line. Mr. Raney pointed out on the drawing how the driveway would get into the CAMA 30 feet setback if the house were moved towards the east. Mr. Raney called Mr. Avery to describe
the subdivision review and approval process used by the County in 1993 and his involvement with this project. Mr. Avery stated that when the project was submitted for approval, the Planning
Department required the developer to submit site plans showing the lot layouts, road access, utilities, storm water, etc. He said when they overlaid the maps on this project, they saw
that there was a possibility of the COD being impacted by the proposed development, and they contacted the owner and told him to have the surveyor meet them at the site to physically
flag the conservation space. He said it was then determined that there were some conservation resources that would be impacted by this proposed subdivision. Mr. Avery said he walked
close to the marsh area and physically placed flags every 15 to 20 feet around the entire perimeter of the subdivision and the surveyor walked behind him and put stakes down where he
had flagged. He said upon completion, the surveyor was requested to go back and survey each line and put it on the map showing the edge of the conservation resource space. He said that
only determined the conservation space edge and not the setback line. Mr. Avery said when they were ready to put this map on record, Planning required that the COD setback line be shown
based on the survey that they helped to create when they flagged the conservation space. He said the map they created shows two setback lines, a 50-foot setback mostly on the east side
and a 75-foot setback on the northern east west sides of the lot. Mr. Raney called Mr. Hansberry to speak on the process that they went through trying to purchase this property. Mr.
Hansberry stated that he and his wife first looked at the property in December 2003. He said the real estate agent gave them a copy of the map and the previous owner already had a well
in place with temporary power to the well and a permit for the septic tank. He said the previous owners had the footprint of their house on the plan and he was able to see the overlay
and setback areas. He said he was given a copy of the Engineers soil analysis to make sure the soil would hold the type of house they wanted to build there and based on all of this,
they made an offer back in February. He said before closing on the property they went to the Health Department to verify that a septic was in place. He said the septic was in place but
the permit had expired and they would need to pay $280.00 to renew the permit. Mr. Hansberry said they closed on the property March 11 and in April, they showed the plans that they had
purchased to an Engineer to make sure the piling foundation was correct and the structure could hold up against winds. He said the Engineer requested that they do some additional soil-boring
tests to assure the soil could hold up the pilings. He said it was in discussion with Stocks Surveyors that he learned that the lot had been re-flagged and the house that they wanted
would no longer fit. Mr. Bellows asked Mr. Hansberry to explain the four garages.
4 Mr. Hansberry said there are actually two garage doors on the east side and a door was added on the south side of the garage for access to the rest of the house. He proceeded to point
them out on the map. Mr. Bellows asked if the interference with the oak clusters was with the house itself and not the driveway. Mr. Hansberry answered yes. Mr. Bellows asked what was
the first floor square footage. Mr. Hansberry said 2,700 sq ft. Mr. Gintoli referred to Item # 3 of the Findings of Fact, which reads CONCLUSION that
the hardship of which the applicant complains results from unique circumstances relateMr. Gintoli said the hardship could be considered
self-imposed because the house could be redesigned to fit. Mr. Hansberry said it would be a substantial cost to redesign the house and the house would have to be substantially reduced
to have a garage underneath. Mr. Bellows asked Mr. Hansberry if he had an estimate on how much has been spent so far on the house plans, the architectural modifications, the structural
investigation, the soil boring tests, and the engineering and architectural work that has been done. Mr. Hansberry said it is close to $18,000.00. Mr. Gintoli asked the total cost of
the project including the land and the house. Mr. Hansberry said about $850,000.00, not including the lot. Mr. Raney called Mr. Philip Tripp to testify on the designing of the storm
water controls for that site. Mr. Phil Tripp stated that his civil engineering firm, Tripp Engineering here in Wilmington does coastal design for storm water control all over the County.
He said .75 inch rain event is fine for this lot. He said the soils are very sandy and would readily accommodate infiltration on the site. He added that he could see no problems at all.
Mr. Bellows asked who determines that storm water control would be required for the project. Ms. Wilson said it would be required if in a conservation area. Mr. Bellows asked if the
Planning Planning Department reviewed the proposal. Ms. Wilson said Ms. Hines spoke with Baird Stewart about the septic system encroaching into the COD setback and it was determined
that it would be acceptable. Ms. Wilson added that she did not hear if Planning had an opinion on the actual house.
5 Summation Mr. Raney Mr. Raney said the Hansberrys went into this project in a responsible way and they relied on information from reliable sources. He said they had contractors
ready to start work when it was discovered that there was a different determination on the COD line than before. He said it is a big problem because the buildable area is now too small
and odd shaped, and there is no way they can put the house within that envelope. He said they are asking to be allowed to build the house that they want to build.
purpose and intent of the ordinance
and preserve its spirit: Mr. Tripp said runoff from this project could be easily contained onsite and there would be no storm water runoff impacts in the conservation resource areas
as a result of this development. s response to if granted the variance will secure the public safety and welfare and will do substantial justice: Public safety and
welfare are related to the preservation of the conservation resources. Mr. Raney asked if it was just to suddenly surprise a property owner with a new delineation of his building area
after he relied, in good faith, on an earlier County approved setback delineation. It would be a significant hardship for them to have to go back and try to work within a much smaller
and odd shaped envelope. Mr. Jones asked if the garage is to be set up so that you can drive through one entrance and out another and if the garage is the only structure on ground level.
Mr. Hansberry answered yes to both questions. He said the house would be on pilings. The Chairman called for those to speak in opposition to the Board granting the variance request to
come forward. There was no one present to speak on denying the variance request. Board Deliberation Mr. Gintoli said the house could be designed to fit within the guidelines without
imposing on the Conservation Overlay District. He said the $18,000.00 already spent is only 2% of the building budget. Mr. Eckel said there are two separate issues: (1) the plans that
Mr. Hansberry bought to put the property on, and (2) trying to save the trees. He said the Hansberrys want more on the variance than what he bought the plans for. Mr. Bellows said the
situation is the house plans were purchased based on the original delineation and they now need a variance because the house will not fit within the new setbacks. He said they �
�said the
applicants demonstrated that they have tried to meet the setbacks as they understood them and it is a hardship when you purchase a parcel based on a certain house plan that you think
can fit on it. He said this is an environmentally sensitive area and they are encroaching into the setback and the spirit of the COD Ordinance is to preserve the trees. He said in Section
59.4 Conservation �
�setback you need to control if part of your parcel is within a COD.
6 Mr. Bellows asked if they did not encroach into the setback, would they have to control a 10-year storm with a ¾ inch rain event, if any part of the parcel is in the COD. He asked
if it was reasonable to increase it to a 1-inch requirement, since they are encroaching. Mr. Bellows asked Mr. Tripp if he had done any design work on the storm water and what impact
1 inch versus ¾ inch would have on a design system. Mr. Tripp said the greater the setback the more storage it requires. He said when trying to protect the resource, if it is a 25 ft
setback it would be ¼ inch, if it is a 50 ft setback it would be ½ inch, if a 75 ft setback it would be ¾ inch. He said 1 inch would relate to 100 ft. He said based on what he has seen
there, by the time the runoff leaves the house and gets to the resource, a ¾ inch rain would virtually disappear. The only impact would be for storms that go beyond a 10-year. Board
Decision: 1. Mr. and Mrs. Scott P. Hansberry, 6508 River Vista Drive, are requesting a variance from the COD (Conservation Overlay District) setback requirements of New Hanover County
Zoning Ordinance, Section 59.4 to construct a new single-family residence. ZBA-736. 2. Mr. Bellows entered a motion to GRANT the variance request as submitted in Exhibit 1, which are
the drawings highlighted in yellow and orange and Exhibit 9, with the exception that number four (4) of the finding of fact be changed to read storm water runoff from development on
the lot will be contained in accordance with New Hanover County Zoning Ordinance, Section 59.4-5 Group 2 Section B. Thus, the conservation resources that the COD setback is designed
to protect will be protected. Mr. Lee seconded the motion. The vote was 4 ayes and 1 nay (Gintoli). The last order of business before the Board was as follows: Archmill Place, Inc.,
by Mr. Archie McGirt, -Ms. Ann Hines provided a letter of confirmation which states that Archmill Place has satisfied all zoning requirements with regards to connecting
r supply. (reference ZBA-719) Since all Board members said they had read
the letter from Ms. Hines, the Chairman requested for the record, that the letter be attached to the original minutes of the meeting. There being no further business before the Board,
it was properly moved and seconded to adjourn the meeting. All ayes. Acting Executive Secretary Chairman