ZBA-9-04
1 MINUTES ZONING BOARD OF ADJUSTMENT September 28, 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 September 28, 2004. Members Present Jeffrey Bellows, Chairman Michael V. Lee Michael S. Jones Horace
Malpass Carmen Gintoli Ex Officio Members Present Holt Moore III, Assistant County Attorney Debra D. Wilson, Acting Executive Secretary Rodney A. Conatser, Zoning Enforcement Official
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
at 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 August 2004 Board meeting with the following
corrections: (1) Page 4, paragraph 13. Change the second sentence to read; He said .75inch rain event is fine for this lot. (2) Page 6, first paragraph. Change the first sentence to
read; 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. Mr. Bellows
swore in County staff Ms. Debra D. Wilson and Mr. Rodney A. Conatser. The first case to be brought before the Board was as follows: ,
is requesting a variance from the buffer requirements of New Hanover County Zoning Ordinance, Section 67-4 for a dog day camp and boarding facility in a B-2 zoning district. ZBA-737.
The Chairman called Mr. Conatser to give an overview of the case.
2 Mr. Conatser stated that Ms. Gwen Phillips plans to operate a boarding and day camp facility for dogs at 7030 Market Street. He said the property has split zoning with the front portion
zoned as B-2 and the 50-foot rear portion is zoned R-15, which is heavily vegetated. He said New Hanover County Ordinance, Section 67-4 requires a vegetated buffer to shield the adjoining
R-15 properties from the commercial development, and this would require an additional 20-foot buffer. He said the application states that the existing heavily wooded 50-foot of R-15
property provides adequate screening from adjacent R-15 property owners. He said the applicant has agreed to the installation of a 6-foot stockade fence just outside the 50-foot R-15
section of the B-2 area. He noted the appli
Ordinance 122-1, and that all parties were notified. Mr. Bellows asked where they plan to put the 6-foot stockade fence, if the variance is granted.
Mr. Conatser said the fence would be 50-feet from the property line, adjacent to and abutting the large vegetative area in the rear. 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: Mrs. Gwen Phillips, Owner. Mrs. Phillips directed the Board to her submitted site plan,
where she pointed out the heavily wooded back yard on the east side of the property. She then submitted new photos of the property and proceeded to point out various views of the property
to the Board. She continued by stating that a neighbor did meet with them onsite along with Mr. Conatser, and the neighbor expressed some concern about the northeast back corner. She
said her husband agreed to put two additional 8-foot wood stockade extensions off the chain-linked fence. She said they were trying to create a shaded area for the dogs and preserve
the trees. She said they had to mitigate one tree and they will be planting either sixteen 3-inch trees or twenty-four 2-inch trees. Mr. Bellows asked Mrs. Phillips to explain the hardship
that would be created by complying with the Zoning Ordinance. Mrs. Phillips said it forces them to give up 25% of their useable land due to the setback requirements. �
� Mrs. Phillips said they would like to be able to use it
as a walking path for the dogs. er
built according to the Ordinance. Mrs. Phillips said because it would be laden with trees and a fence. Mr. Bellows asked if the property had been recently surveyed and how was the vegetative
line determined.
3 Mrs. Phillips said yes it has been recently surveyed. She said they looked at the 1989 records when it was rezoned to make sure it was a 50-foot setback. Mr. Gintoli said if the fence
was moved back they would not have to plant the trees. Mrs. Phillips said that is correct but they would still need to plant the sixteen or twenty-four other trees along the island and
the parking area The Chairman called for those to speak in opposition to the Board granting the variance request to come forward. Mr. Bellows swore in: Mr. Timothy R. Karp, Adjacent
property owner Mr. Robert James Milliman, Adjacent property owner Mr. Milliman first read item number 44.1, titled Commercial, from the Land Classifications and Policies Summary. It
reads New Hanover County and the City of Wilmington will assure that land is available for commercial uses within close proximity to the markets they serve while not diminishing the
quality of residential and mixed use neighborhoods. He continued by stating that he realizes this parcel of land is zoned B-2 and the Ordinance allows for a dog kennel in a B-2 zoning,
but the County Mangers and/or the Zoning Committee should have seen what close proximity this dog kennel, which is to house 50 dogs, is to a residential neighborhood. He then presented
pictures and pointed out to the Board where his house is located. He said 50 dogs would be extremely loud, and whoever approved this project has totally ignored what the policies clearly
states-not diminishing the quality of residential and mixed use neighborhoods. He said when the dogs are placed in that kennel, their property value would drop dramatically. Mr. Milliman
said he was told that it is worse on holidays when the owners leave town and drop their dogs off at the kennel. He asked that special attention be made to the Land Classifications and
Policies Summary in the development of commercial property within close proximity of a residential and mixed-use neighborhood and to enforce the buffer requirements to the fullest extent.
Mr. Milliman presented a document that he said has the signatures of the entire neighborhood opposing this project. Mr. Milliman said when the property was rezoned to B-2, they were
told it would be a medical building, and he asked what County board he would need to contact in order to stop this project. Mr. Conatser explained that this project is permitted by right
and the Planning Department would need to be contacted to file a text amendment. He further explained that when a property is rezoned, unless it is conditionally rezoned, it is rezoned
to that property and anything that can be in that permitted zone is allowed there. Mr. Conatser said if it had been conditionally rezoned, the County Commissioners could have put some
conditions on it specifying the type of business that could be there, otherwise, anything that is B-2 can be permitted on that property. Mr. Holt Moore read the following taken from
New Hanover County Zoning Ordinance, Section 67-7: The Board of Adjustment may modify or waive the requirements of this section, where it can be demonstrated by the property owner that
the specific screening buffer or landscaped open space is not needed for the protection of surrounding residential areas because of intervening streets, roadways, drainage ways, or other
factors such as natural growth of sufficient height and density to serve the same purpose as the required screening buffer.
4 Mr. Timothy Karp said he is the owner of property behind the proposed kennel. He said he spoke before this Board in 1989 when the property was rezoned to B-2 for a medical facility.
He said they asked for a 100-foot buffer but the County granted a 50-foot buffer and a 5-10 foot portion of the 50-foot buffer has already been cleared. He said since he has to live
behind the buffer, he would like a 20-foot buffer addition and also an 8-foot stockade fence installed. Mr. Karp presented a document that he said was given to him by the captain of
a fire station in the neighborhood, which shows a monthly incident count of calls to the station. He explained that the sirens would cause the dogs to start barking. Mr. Karp also said
he printed the records of the permit and as far as he knows the permit has not been approved yet. Mr. Lee asked Mr. Karp if the requirement of the trees and the installation of the fence
between the 20-foot buffer would make a significant difference in the sound. Mr. Karp said it would make a big difference, especially with dogs. Mrs. Phillips said the kennel building
is placed well outside of any setback requirements. She said the previous statement made that they had cleared 5-10 feet is not true. She said they bought the land in May and they did
cut down one tree for the office area and also cleaned up some debris. She said the reason that the permit had not been approved is due to a computer error. She explained that when Fire
Services approved the permit in August there was an error created when the permit was retyped into the system and it overwrote the original permit. Mr. Gintoli asked Mrs. Phillips if
the Board denied the variance would they still build the stockade fence. Mrs. Phillips answered yes. Mr. Bellows explained that the fence would provide more useable area because they
would only have to put up two rows of trees instead of three rows. Mr. Conatser said they would have to put up a stockade fence and two or three rows of trees or a combination with the
berm. He said the Board could approve the variance on condition that a stockade fence is used. Board Deliberation Mr. Lee asked Mr. Moore to read the section of the Ordinance again that
pertains to this case. After Mr. Moore read Section 67-7, Mr. Bellows questioned if they would need to meet the standard of hardship. �
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show a hardship. Mr. Gintoli asked if the R-15 zoning on the property makes
a difference. He said the R-15 runs along the 50-foot buffer, which means they would need to add the 20-feet even though it is their own land.
5 Mr. Jones said in the original rezoning of the entire piece of property, it was approved on the condition that that section remained as R-15. Mr. Conatser said that is correct, and
it was because they wanted the natural buffer to remain. Mrs. Phillips said she was told by Ms. Hines that this is a self-imposed County buffer and no one could build in that buffer.
Mr. Lee asked Mrs. Phillips if they were just trying to be able to use the area and not trying to get out of planting the trees. Mrs. Phillips said yes, they just want to be able to
use the area. Mr. Lee asked Mrs. Phillips if she could still use the buffer area to walk the dogs even with the 6-foot fence. Mr. Conatser said the buffer has to be left totally undisturbed
and they could not do anything there in conjunction with the business, like walking dogs. Mr. Milliman said he, Mr. Conatser and the owner discussed putting sections along the side of
the chain-linked fence where his property is located. Mr. Conatser pointed out on the pictures, a 5-foot corner section where the buffer does not meet the 100% opacity requirement. He
said as part of the commercial plan review and final inspection, the owner agreed to put up two sections. A discussion ensued concerning the height of the stockade fence. Following discussion,
the Board made the following decision: Board Decision: 1. , is requesting a variance from the buffer requirements of New Hanover
County Zoning Ordinance, Section 67-4 for a dog day camp and boarding facility in a B-2 zoning district. ZBA-737. 2. On a motion by Mr. Gintoli and seconded by Mr. Lee, the board voted
unanimously to GRANT the variance request with the provision that an 8-foot stockade fence be placed along the 50-foot existing buffer and return at the northwest corner 16 feet towards
Market Street. The second case to be brought before the Board was as follows: Mr. and Mrs. Michael James Leith, 226 Beach Road North, are requesting a variance from the side setback
requirements of New Hanover County Zoning Ordinance, Section 51-2 for an existing residence. Property is zoned R-20S. ZBA-738. The Chairman called Ms. Wilson to give an overview of the
case.
6 Ms. Wilson stated that Mr. and Mrs. Michael James Leith are seeking a variance for an existing residence at 226 Beach Road North, Figure Eight Island. She said the New Hanover County
Zoning Ordinance requires a minimum building setback of 15 feet from the side property line. She said the setback discrepancy was discovered during the recent purchase of the property
and was not detected at the time of construction in year 2000. Ms. Wilson said the application indicates a side yard setback encroachment of approximately 8 inches on the southwest corner
of the dwelling. Mr. Bellows asked if the County obtained a foundation survey when the CO was issued. Ms. Wilson said that was not a requirement. She said it is usually up to the building
inspectors to check the setbacks. Mr. Bellows asked if a foundation survey is required to obtain a CO, with the current Ordinance. Ms. Wilson said no. Mr. Bellows said it should be a
requirement and all Board members agreed to further discuss this issue after the meeting. The Chairman called those to speak in granting the variance request to come forward to be sworn
or affirmed for testimony. Mr. George Edward Coleman III came forward. Mr. Bellows exercised the option to not swear in Mr. Coleman due to fact that he is an attorney. Mr. Coleman stated
that he is a partner with Hogue, Hill, Jones, Nash and Lynch law firm. He first presented Exhibit A, which is the document authorizing him to legally represent Mr. and Mrs. Leith. Mr.
Coleman said that he sent entire packages to all the adjoining neighbors and they have not received any objections from any of the neighbors or the Figure Eight Island Homeowners Association.
He said when Mr. and Mrs. Leith had a survey done, it was discovered that there is a very minimal encroachment into the southwest corner of the lot. He pointed out on photographs, the
location of the encroachment and he also pointed out some pine trees buffering the corner along with some vegetation between the residences. Mr. Bellows asked if the survey was done
before they bought the property. Mr. Coleman said he got a call while Mr. and Mrs. Leith were at closing for the property. He said they continued with the closing but put money in escrow
pending the outcome of this variance request. 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 in opposition to granting the variance request.
7 Board Decision 1. Mr. and Mrs. Michael James Leith, 226 Beach Road North, are requesting a variance from the side setback requirements of New Hanover County Zoning Ordinance, Section
51-2 for an existing residence. Property is zoned R-20S. ZBA-738 2. On a motion by Lee and seconded by Mr. Malpass the Board voted unanimously to GRANT the variance request based on
all evidence presented. The last order of business 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. (Reference ZBA-731 continued from June 22, 2004 Board Meeting) For
the record, Ms. Wilson read a letter from Mrs. Denise Miller Lee, dated September 16, 2004. The letter state�
�decision and at this time, the allowable wholesale and retail nursery will continue to operate at 8263 Market Street.
(Copy of letter will be attached to original minutes) Board Discussion Mr. Bellows said there have been a lot of variance requests involving the County not requiring simple surveys done.
Mr. Lee said it would be appropriate for the Board to have a resolution or a motion to send a letter to the Commissioners expressing this concern. Mr. Gintoli asked if this would be
a survey required at CO or a survey beforehand. Ms. Wilson said it would be better if the survey was done at the floor system or foundation inspection. Mr. Bellows asked Ms. Wilson to
talk this issue over with Zoning staff and get back with the Board before they proceed with sending a letter to the Commissioners. There being no further business before the Board, it
was properly moved and seconded to adjourn the meeting. All ayes. Acting Executive Secretary Chairman