ZBA-10-05
1 MINUTES ZONING BOARD OF ADJUSTMENT October 25, 2005 The New Hanover County Zoning Board of Adjustment held a regular and duly advertised meeting at 5:30 P.M. at the New Hanover Government
Complex, 230 Market Place Drive, Suite 110, Wilmington, NC, on October 25, 2005. Members Present Mike Furman, Chairman Michael Jones Horace Malpass Brian Eckel Carmen Gintoli 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. Mike Furman. Mr.
Furman 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 appeals of the �
�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 2005 Board of Adjustment meeting. 4 ayes, 1 abstain (Gintoli). Mr. Furman swore in County staff, Ms. Ann S. Hines. The
first case before the Board was as follows: Export Depot USA Group, 2016 Corporate Drive, is requesting a variance from the 25-foot side setback requirements of New Hanover County Zoning
Ordinance, Section 59.6 for a proposed building in the Special Highway Overlay District (SHOD). Property is zoned PD (Planned Development). Case No. ZBA-757. Mr. Furman called Ms. Hines
to give an overview of the case. Ms. Hines stated that this case involves an industrial piece of property in Northchase Industrial Park at 2016 Corporate Drive and the owners are proposing
to build a new office/warehouse building on that property. She said the proposed construction meets all the building setbacks and site requirements with the exception of the sideline
building setbacks, which relates not to the PD Zoning District of the property but to a Special Highway Overlay District. She said the SHOD runs parallel to Interstate 40, a thousand
feet from the right-of-way line at the very far edge of the
2 property. Ms. Hines said the SHOD requirements calls for a 25-foot minimum building setback from all property lines and this building is proposed at the 15-foot setback from the two
sidelines.
instance because the intention of the SHOD is largely aesthetic related to the view of properties from the designated highway. She said there is a large tract of land between
Northchase and Interstate 40 with large heavy evergreen woods on both sides of this large tract, so the property is not seen from I-40. Ms. Hines stated that the applicant has submitted
findings of fact and the adjacent property owners have been notified. Mr. Furman asked Ms. Hines if she had heard back from any of the adjacent property owners. Ms. Hines said she talked
with a gentleman who is a part of the homeowners association. She said he expressed interest in the site layout and came to the Zoning office to see if the site plan was compliant with
the restrictive covenants for that development. Ms. Hines said he indicated that the 15-foot side setback did comply with the subdivision restrictions. Mr. Furman called those to speak
in favor of granting the variance request to come forward to be sworn or affirmed. He swore in: Mr. Wilson Ki Mr. J.B. Hinnant Mr. Ki stated that he owns two lots adjacent to this property
and he is awaiting the outcome of this case because he plans to come before the Zoning Board to request the same variance for his lots. Mr. Gintoli asked if there was a rear setback
requirement. Ms. Hines answered yes. She said the line on the drawing that appears to be a rear property line is not; it is the edge of a drainage easement and part of the property.
Ms. Hines said the actual rear property line is at least 40 feet behind that line. Mr. Gintoli asked if the area on the other side of the easement could be developed. Ms. Hines said
there is a large tract behind it that is a part of a much larger tract. She said the Interstate was built through it so there is access to this part from one side of the Interstate and
on the other side of the Interstate is an area being developed for soccer fields. Ms. Hines said the property behind it can be developed but she is not aware of any plans to develop
it. Mr. Gintoli said he has a concern because it was stated that the building is not visible from I-40 but if developed it would be visible from I-40. He also said he is concerned about
the previous testimony that if this variance request is approved that someone wants to come right behind them and do the same thing and therefore the Board would be setting a precedence.
Mr. Hinnant presented photographs of the property to the Board. Mr. Furman called those to testify in opposition to the Board granting the variance request to come forward to be sworn
or affirmed. There was no one present to testify in opposition to the variance request.
3 Board Deliberation Mr. Furman read from New Hanover County Zoning Ordinance, Section 59.6-1 Special Highway Overlay District The purpose of the Special Highway Overlay District
(SHOD) is to protect the Mr. Gintoli said
his only concern would be that if the Board grants this variance request, according to testimony given earlier, there are plans for someone to come back to the Board and ask for the
same thing on his two lots. Board Decision: 1. Export Depot USA Group, 2016 Corporate Drive, is requesting a variance from the 25-foot side setback requirements of New Hanover County
Zoning Ordinance, Section 59.6 for a proposed building in the Special Highway Overlay District (SHOD). Property is zoned PD (Planned Development). Case No. ZBA-757. 2. On a motion by
Mr. Eckle and seconded by Mr. Malpass, the Board voted to GRANT the variance request based on the findings of fact and other evidence presented. 4 ayes, 1 nay (Mr. Gintoli). The second
case before the Board was as follows: Mr. and Mrs. Bruce Rouse, 4805 Holly Shelter Road, are requesting a variance from the buffer requirements of New Hanover County Zoning Ordinance,
Section 67 for a proposed towing business. Property is zoned I-2. Case No. ZBA-758. Mr. Furman called Ms. Hines to give an overview of the case. Ms. Hines stated that Mr. and Mrs. Rouse
own the I-2 heavy industrial zoned property at 4805 Holly Shelter Road in the Castle Hayne area. Ms. Hines said this area historically has had some older residences. She said the property
to the west has two street addresses assigned to existing residences on it; 4801 and 4803 and in order for Mr. and Mrs. Rouse to develop the industrially zoned tract, they will have
to provide buffer screening for the nonconforming residences next door. Ms. Hines stated the Zoning Ordinance calls for a minimum 20-foot wide planted buffer in order to provide the
standard screening because of the residential use. She said this piece of property is relatively narrow for the purpose that they are proposing to develop, if the entire 20-foot buffer
width is applied to it. Ms. Hines said they are asking for the 20-foot buffer to be removed from the requirements to develop this property and their intended purpose is to develop it
initially as a storage lot for a wrecker or towing business and long-term plans are for a car repair business on the property. Mr. Eckel asked if they are in full compliance with the
nonconforming use. Ms. Hines said yes, a nonconforming residential use is allowed for as long as the owner wants it to be there. Mr. Eckel asked what happens if they move out of the
house. Ms. Hines said it could be re-inhabited as long as the structure is not condemned.
4 Mr. Furman called those to speak in favor of granting the variance request to come forward to be sworn or affirmed. He swore in: Mrs. Karen Rouse Mr. Bruce Rouse Mrs. Karen Rouse stated
that when they first purchased the property, a burned out mobile home was on the lot and they now have a demolition permit to have that mobile home removed. Mrs. Rouse stated that they
are thinking of a business use off of the Interstate for the I-2 zoned property to the west. She said there is a singlewide mobile home in the rear and a very old wood frame house in
the front. Mrs. Rouse said the State Highway Patrol requires that a fence be installed to enclose any vehicles that are impounded and being that the lot is so narrow, that creates a
hardship to provide a 20-foot vegetated buffer. She said they would like to be able to place the fence as close to the property line as the Board would allow for the purpose of their
business. Mr. Gintoli asked if they are required to put up a site-obscuring fence. Mr. Rouse said no they are not required but they will put up a six-foot wooden privacy fence. Mr. Rouse
presented some photographs of the property and proceeded to discuss the photographs with the Board. Mr. Rouse asked Ms. Hines if the adjoining property were sold and used as a business
would they still be required to have a buffer. Ms. Hines said no, the buffer requirement would go away. Ms. Hines also said the 6-foot height is the ordinance standard for a buffer screening
and a 6-foot privacy fence would afford that same level of protection. Mr. Jones asked if the property at 4801 and 4803 are presently both up for sale. Mr. Rouse said yes. He also said
it is owned by three people and he has spoken with one of the owners, who said he did not think it would be a problem. Mr. Furman called those to testify in opposition to the Board granting
the variance request to come forward to be sworn or affirmed. There was no one present to speak in opposition to granting the variance request. Board Decision 1. Mr. and Mrs. Bruce Rouse,
4805 Holly Shelter Road, are requesting a variance from the buffer requirements of New Hanover County Zoning Ordinance, Section 67 for a proposed towing business. Property is zoned I-2.
Case No. ZBA-758. 2. On a motion by Mr. Jones and seconded by Mr. Gintoli, the Board voted unanimously to GRANT the variance request based on the findings of fact to include a 6-foot
wooden privacy fence to be built on the western side of the property.
5 The third and last case before the Board was as follows: Mr. and Mrs. Richard Gaddy, 7550 Dunbar Road, are requesting a variance from the front and rear setback requirements of New
Hanover County Zoning Ordinance, Section 52 for a new single family residence to replace an existing residence with nonconforming setbacks. Property is zoned R-20. Case No. ZBA-759.
The Chairman called Ms. Hines to give an overview of the case. Ms. Hines stated that Mr. and Mrs. Richard Gaddy are the owners of the property at 7550 Dunbar Road, which is the last
lot on the right before you get to the creek. She said Dunbar Road extends off of Middle Sound Loop Road all the way to Pages Creek and the right-of-way literally runs into the creek
but it is undeveloped as you reach the end of it. Ms. Hines said there is an existing house on the property and they propose to demolish the existing house and build a larger house in
the same approximate footprint. She said the owners are seeking a variance from the building setbacks in order to re-build on this site and they are also asking for a variance to construct
a free-standing garage on the side toward Dunbar Road extended. Ms. Hines said when you look at the lot and the way the house presently sits on it, some people would call the front the
side towards the creek and others might call the front the side opposite the creek. In the sense of the Zoning Ordinance, the front of the lot is the side towards Dunbar Road and the
rear property line is the opposite of that with the creek side being the side property line and the remaining 100-foot property line being the side. Ms. Hines said the minimum building
setback from Dunbar Road for R-20 zoning is 30 feet and what is proposed is 20 feet from the house and 5 feet for the detached garage. She said the minimum building setback for new construction
from the opposite rear lot line would be 25 feet
requirements would be met because of the age of the lot and the CAMA restrictions would call for a 30-foot setback from the mean high water line which would
also meet that requirement. Mr. Gintoli asked if the property across Dunbar Road is zoned residential. Ms. Hines said the whole area is zoned residential. Mr. Furman asked Ms. Hines
if the shed was located in the front of the existing house. Ms. Hines said it is hard to say how you would define the front of the house. She said in terms of zoning, the front of the
lot is what counts and not the front of the house and the front of the house is the side along Dunbar Road. Ms. Hines said physical access is where the driveway comes in at the back
corner of the lot and there is an access easement behind this lot that is useable. Mr. Eckel asked if Dunbar Road public. Ms. Hines said it is a public right-of-way. Mr. Furman asked
if there are adjacent houses. Ms. Hines said there are houses behind this lot and to this side. Mr. Furman asked if those owners were notified. Ms. Hines said yes and proceeded to read
the adjacent owner list from the submitted variance request package.
6 Mr. Eckel pointed out a road on the drawing and asked Ms. Hines if that road was paved would they be in compliance on the front side. Ms. Hines said that road does not go anywhere.
She said it fronts on the two lots on either side and then it goes to the water. She said this lot abuts a public right-of-way and the easement on the side where it turns is not Dunbar
Road anymore, although the lots probably have a Dunbar Road address. She said it is an access easement that acts like the front of the lot if it was a platted street, but access easements
are not treated the same as platted streets and roads for setback or access purposes. Ms. Hines said we still call that the front yard along Dunbar Road. Mr. Furman called those to speak
in favor of granting the variance request to come forward to be sworn or affirmed. He swore in: Mr. Richard Gaddy Mr. Gaddy presented letters of approval of the variance request from
his adjacent neighbors. Mr. Gaddy said they have an existing house and are asking to put the new new house back in the same footprint. He said when he applied for a permit, he was told
their house would have to front towards old Dunbar Road, which would mean the side yard would be the creek. He said all the �
�Gaddy said they use the 30-foot right-of-way on the side because of
the present layout of the house, but they plan to put a fence down that line and only use the right-of-way for access to the water. Mr. Gaddy said they want to have 10 or 11 feet on
the sides just as the house bordering him has a 10-foot setback. Mr. Gaddy presented additional photographs and proceeded to discuss them with the Board. Mr. Gintoli asked if the shed
on the access road side would be in the setback if the house were faced the way Mr. Gaddy wants it to be faced. Mr. Gaddy said the shed would be removed. Ms. Hines asked if the house
would be two stories and Mr. Gaddy said no, it would be one story. Mr. Gintoli asked if there would be two garages; one built onto the house and one freestanding. Mr. Gaddy said it would
be a wood working shop. He added that he works on antique cars and needed space to keep them. Mr. Furman called those to testify in opposition to the Board granting the variance request
to come forward to be sworn or affirmed. The Chairman swore in: Mr. Patrick White Ms. Bonnie Mattson Mr. George W. Peterson Mr. James Blake
7 Mr. Blake said he lives at 7413 Dunbar Road and he was aware that Mr. Gaddy was going to tear down his house and rebuild but he was not aware that he plans to build so close to the
30-foot right-of-way access to the sound. He added that there has always been some form of opposition to this right-of-way. He said his family has lived on Dunbar Road since 1934 and
his grandfather donated 30-foot right-of-way off of their property to the state so that the neighbors could have access to the water. He said �
�36 feet off the 30-foot right-of-way and the opposite side is a walkway to
the docks at Dunbar Landing. Mr. Blake then presented new drawings to the Board and they proceeded to discuss the drawings along with Mr. Gaddy. Mr. Blake asked about the telephone pole
and Mr. Gaddy said the pole would be moved. Mr. Blake said he is concerned that the 15-foot setback is to be reduced to a 5-foot setback in order to accommodate a detached garage. Mr.
Eckel asked Mr. Blake if he would feel more comfortable if an 8-foot privacy fence was installed. Mr. Blake said a fence is there already and yes an 8-foot privacy fence would be fine.
Mr. Gaddy said he is asking for this variance to get everything that is his onto his property. Mr. Gaddy said he has parked his car and boat there in the past but this caused problems
with some of the neighbors that go down to the water. The Chairman suggested that the parties get together so that Mr. Gaddy could explain to the neighbors exactly what he plans to do.
Mr. Furman called a brief recess. Following the brief recess, Mr. Blake said if the driveway is going to be moved off the access road and a fence placed that would be fine. He said that
way it would also keep people from parking on Mr. Furman called for any others in opposition to the variance to come forward for testimony.
Mr. George Peterson said his house is the first one on that road and he has lived there since 1939. He said about 170 years ago Mr. Dunn gave the people from Anaca Point Road on down,
access to the 30-foot road. Mr. Peterson said it is very important to keep that access and it should never be closed. Mr. Peterson said an extended fence would be a good idea. Mr. Sandy
Midgett asked to speak and the Chairman swore him in. Mr. Midgett said when Mr. and Mrs. Gaddy leased the property and then bought it, their driveway was actually on the easement. He
said that is why they were parking on the easement and now they are just trying to get their driveway back in their yard.
8 Board Deliberation Mr. Furman said the two groups seem to have reached a consensus. Mr. Gintoli said he has a problem with the freestanding workshop being only 5 feet from the property
line. Mr. Eckel said, as it exists now, Mr. Gaddy could continue to use the right-of-way and enter from the side. He said what they are all in agreement with is extending the fence.
Mr. Gintoli said the Zoning Ordinance is clear and no matter what the conditions are he feels a house could be designed to fit the ordinance requirements. Mr. Patrick White said it is
reasonable that they want their house to be compatible to the other homes in the area. He said they worked out the objection with the fence and the 5-foot garage setback seems to be
a little tight for some people and he asked what is an appropriate distance. Mr. Jones said the garage is going to be inside of his fence line on his property and the 30-foot would exist
all the way to the water. Mr. Eckel asked Mr. White what distance would he prefer the garage to be from the right-of-way. Mr. White said 5 feet seems to be too close to a fence, but
he is not knowledgeable enough to say how far is enough to be aesthetically pleasing. Mr. Eckel asked Mr. Gaddy if he could get the garage 15 feet off the right-of-way. Mr. Gaddy said
because of the setback requirements, putting the garage in that location would leave 8 or 9 feet and now it is approximately 16 to17 feet wide. Mr. Eckel asked the reason that it has
to be detached. Mr. Gaddy said his insurance company asked him to because he works on cars. Mr. Gintoli asked Ms. Hines if there is a distance requirement between a freestanding building
and a house. Ms. Hines said the ordinance calls for a 5-foot separation. Ms. Hines also said if that right-of-way to the water was not there, a garage of under 600 sq. ft. in size, which
this one is, could be 5 feet off that property line. Mr. Furman asked if everyone would be in agreement to the variance request if the Board specifies in the variance ruling that the
garage is under 600 ft. and a fence is placed 5 feet off the right-of-way. Mr. Gaddy answered yes. Mr. Blake said he would need some assurance that it would be maintained. Ms. Hines
said if it is a condition of the variance and Zoning became aware of a violation of the conditions of a variance, Zoning Enforcement would go out and ask that the fence be repaired.
9 Board Decision 1. Mr. and Mrs. Richard Gaddy, 7550 Dunbar Road, are requesting a variance from the front and rear setback requirements of New Hanover County Zoning Ordinance, Section
52 for a new single-family residence to replace an existing residence with nonconforming setbacks. Property is zoned R-20. Case No. ZBA-759. 2. On a motion by Mr. Jones and seconded
by Mr. Malpass, the board voted to GRANT the variance based on the finding of fact with the following conditions: a. To extend the existing fence along the northern property line b.
The detached garage kept under 600 sq. ft in size in order to meet all the other requirements of the submitted proposed plans. The Board voted 4 ayes. 1 nay (Gintoli). There being no
further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Chairman