ZBA-6-05
1 MINUTES ZONING BOARD OF ADJUSTMENT June 28, 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 County
Administration Annex Building, 230 Market Place Drive, Suite 110, Wilmington, NC, on June 28, 2005. Members Present Michael V. Lee, Vice-Chairman Horace Malpass Brian Eckel Carmen Gintoli
Tim Fuller Ex Officio Members Present Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary Debra D. Wilson, Assistant Chief Zoning Enforcement Official Hattie
Moore, Clerk The meeting was called to order by the Vice-Chairman, Mr. Michael Lee. Mr. Lee 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 ve
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 May 2005 Board meeting. The first case
to be brought before the Board was as follows: Timothy H. Ward and Donnie H. Ward, 1512 Burnett Road, are appealing the Inspection
commercial marina, and other matters. Property zoned R-15. Case No.
ZBA-754. Mr. Lee called for those to give testimony to come forward to be sworn or affirmed. Mr. Lee swore in several people and instructed them to provide their name at the time of
their testimony. Mr. Lee called Ms. Hines to give an overview of the case. Ms. Hines stated that two sets of documents have been handed out: 1. �
�stated grounds.
2 2. Our Response with attachments. Lengthy, can read into record if you wantpracticed, and it takes
�
�like to return to it later as we may need to for specifics. Ms. Hines gave the following summary:
our response to what has been filed to date. The property is at
1512 Burnett Road in the southern part of New Hanover County, an R-15 residential property that once contained the residence of the petitioners' late father, Homer Ward, and a commercial
marina approved by the County Commissioners in 1971 by special use permit. The plan that was approved in 1971 is in your Response packets as Exhibit C. The only buildings there now are
two residential outbuildings about 100 feet back from the front on Burnett Road, and
a boat ramp, with an access gate on the north side of the property. Gas tanks and a small building on
the pier were removed years ago. The buildings on the plan marked clubhouse and boat shed were never built, and the shaded area of the boat shed is still marsh land as it was never filled
as far out as the plan shows. The parking lot was never paved. The County Planning and Inspections Departments have accepted that the commercial marina was established before the area
was first zoned, and that the sale of fuel and snacks, along with some limited rental of boat storage, occurred both before and after the issuance of the special use permit. This marina
activity, though limited in scope, was sufficient for the owner to become vested in the special use permit. Once vested, a special use permit does not expire. Mr. Homer Ward closed down
his marina around 1980 and it remained inactive until recently. In 2002, after Mr. Ward passed away, the Petitioners applied for a new special use permit for a commercial marina with
112 dry stack storage spaces, fuel sales and marine equipment sales. The Planning Department report and an artist's rendering of that facility are in your Response packets as County
Exhibits A and B, respectively. This application was withdrawn before it reached the County Commissioners, in the face of neighborhood opposition. The Petitioners then entered into a
series of discussions with Planning and Inspections staff, attempting to get staff approval for modifications as minor changes to the old 1971 permit. The two Departments have discretionary
authority to approve minor changes to special use permits,
setbacks or changes in traffic patterns (Zoning Ordinance Section 71-1[9]). This is discretionary,
Commissioners for the change. No agreement
could be reached on any of the plans that the proposals qualified as minor changes, and each time the proposal was withdrawn. In the meantime, the Petitioners have continued their efforts
to make improvements to the property and establish a viable commercial marina on the site. This has mainly been in the area of demolishing the house, replacing the bulkhead and seeking
�
�
seen four boats and a couple of jet skis, �
�
3 �
�name of Carolina Marina & Yacht Club, and I would assume they will address this in the course of their presentation. �
� 1. We asked them to remove a business telephone for the new marina from a residential outbuilding and to use that building only for residential storage.
The building was built in 1989, some nine years after the old marina closed, and it was not shown on the 1971 �
�down. 2. We asked them to remove a travel trailer that was being used illegally. Travel trailers have
to be placed in travel trailer parks and not on private lots. This one was set up for occupancy and not merely parked. 3. We asked them to remove 9 electrical outlets that we c�
�reasons) from another residential storage building, built in 2004, and to refrain from using this building for anything other than residential
storage. This building was not shown on the 1971 plan, either. 4. And finally, we asked them to pave the required parking lot shown on the 1971 special use permit plan, before renting
out any more boat storage spaces. Petitioners want to cast our letter as trying to impose new or extra conditions under the special use permit. That is simply not the case.
a
wedge to get this Board to let them expand in ways that the special use permit did not authorize. Our concern is that they hope to to take this wording out of context and induce the
Board to write them a blank check to do whatever they want to, anywhere on this property, when clearly there are limits that were imposed in 1971 with that special use permit. If there
were no reason to impose special conditionssite-specific conditions in each and every casethen the ordinance would have simply allowed these marinas by right in every zoning district,
with every aspect of commercial marina operation available, subject to standard building setbacks. Clearly, the Commissioners did not intend to allow this kind of unbridled use of residentially
zoned propertyhence, the special use designation. The permit conditions count, and the approved site plan is binding. �
�
use permit. Certainly nobody at the County has been badgered or pushed around by the neighbors,
nor habout
everybody mad at us at this pointthough I will say, nobody on either side has been rude or uncivil in my presence, and I would hope that will continue. County staff is interested in
only one thing here: enforcing the regulations, and the terms of that special use permit. �
�this Board to exceed its authority. Let me explain how. The only things properly before
this Board, tonight or any other night, relate to variance requests �
�
4 etation on its own initiativeit has to be acting to either uphold or overturn something staff has done. The
Board hears appeals from specific actions, and again, here are those specific actions in the case before you: 1. We ordered the Petitioners not to use two outbuildingsbuilt as residential
outbuildings�
�only within the power of the Board of County
Commissioners. 2. We told the Petitioners to remove an illegal RV or travel trailer from the propertya separate issue, not even mentioned in the appeal. The RV was removed this month,
he Board to uphold our order because an RV can always
come back. 3. �
�nothing but grass out there.
The County Commissioners insisted on this parking lot, and gave specific instructions about providing spaces large enough for boat trailers. The
County Commissioners themselves. The Petitioners are ignoring the substance
of our letter of April 6, and are trying instead to get this
part of this determination. This deter�
�
�
� in 1971.
the law. This Board hears appeals from staff decisions. In this case there was no plan before staff to review, other than the one drawn in 19
�
�
t
as the plan shows. The lot is not 650 feet deep, and it never was. So the Petitioners understandably want more ground to work with. They may be trying
to fit ten pounds into a five pound sack. But if they need more room to lay out their parking lot than the property will allow without reducing setbacks from the road or property lines,
then they may just need to go back to the �
�Board of Adjustment. �
�r very �
�are based squarely on the approved plan. Ms. Hines ended by asking the Board to please take time to review her written response
and attachments, which includes supporting affidavits, photographs, and written records. Ms Hines said she would be happy to answer questions now or later, and she would also like to
reserve the opportunity to speak again after hearing what the Petitioners have to say. .
5 Mr. Lee asked Ms. Hines if she wants to incorporate this response into the record as part of her testimony. Ms. Hines answered yes. Mr. Shanklin objected, stating he objects specifically
to affidavits of individuals not present and would not be available for cross-examination. He said they are also objecting to exhibits not identified and introduced properly. He also
said they reserve the right to cross-examine Ms. Hines. Mr. Lee said they would probably need to go through the packet and specifically identify Mr.
blanket statements, it would not
give the opportunity to look at each particular issue. Mr. Shanklin said he objects specifically to Exhibit L (Dexter Hayes affidavit), Exhibit Q (Grady Hobbs affidavit), and Exhibit
R (Reggie Hucks affidavit). Mr. Holt Moore said that since this is quasi-judicial and not a court of law, hearsay has traditionally been allowed in this board setting. Mr. Lee asked
Mr. Shanklin if he had objections to any other exhibits. Mr. Shanklin said he objects to the extent that these affidavits have exhibits attached them. Ms. Hines asked if any of the affidavits
could be entered as a business record. She said the Reggie Hucks affidavit is a cover sheet for contents from the Inspection Department permit file. Mr. Shanklin said he has no problem
with that because it is a business record exception to the hearsay by identifying a County public record. Ms. Hines said the Dexter Hayes affidavit is the same. Mr. Shanklin said that
Sam Burgess was present and he could speak on the record. Mr. Burgess came forth and Mr. Lee asked him to take some time to read the affidavit of Dexter Hayes. Mr. Lee called the appellant
to give testimony. Mr. Kenneth A. Shanklin introduced himself and Mr. Matthew A. Nichols. He said they are representing the appellants, Donnie and Tim Ward and their new entity, Carolina
Marina and Yacht Club Incorporated. Mr. Shanklin gave the following overview: This property is located in the south part of the County and has a lot of history. Our zoning ordinances
were adopted back in 1969 and they have changed so much since then. Part of our exhibits will be in the 1971 Zoning Ordinances that were in effect when this marina was approved. This
is a commercial marina and Ms. Hines has pointed out some things as to what this case is and what it is not.
6 We currently have a case pending in North Carolina Court of Appeals entitled Timothy H. Ward and Donnie H. Ward vs. New Hanover County. This is No. 04-CVS2195 and it has a number in
the Court of Appeals of COA05-423. The issue in that case is the interpretation of the Special Use Permit and I have introduced into record Exhibits A and B, which is the Complaint for
Declaratory Judgment and second, the answer from the County. The County has admitted that they have a valid Special Use Permit, which is Special Use Permit number13. Back when the County
was first issuing special use permits, we did not have the technology that we have today like computers and fancy maps. The County has admitted, on the record, that it was a commercial
marina. Commercial marina means something because the County Ordinance does not have various stages of commercial marinas. The appeal deals with certain things. One of the objections
deals with the right to use telephones. It is our position that telephones are protected by the first Amendment to the United States
f telephones. If I go to my house today �
�Constitution. This case involves to some degree, the limitations of Special Use Permit number
13 as to what it says an�
�not
adopted under the zoning authority of the general statutes, but under other statutes involving floods and hurricanes, which would be the environmental environmental section. The other
issue that we are addressing is the DCM-CAMA in respect to the RV, which is off the property and has been taken care of. The other issue is electrical use. We have agreed to that and
it is on Article 3, page 2 of the April 2, 2005 letter to Donnie and Tim Ward signed by Ms. Hines. Item number 4 deals with the interpretation of the Special Use Permit concerning storage
and construction of the parking. In the lawsuit that we have with the County, the neighbors to my right objected to the marina based on certain things that were considered when first
issuing the marina and those things are past and , but the two-year
requirement under our �
�was no such requirement to construct any part of a commercial marina without a special use permit. This case is simple on one hand and complex on the other and tonight we
will try to make it �
�marinas, no B commercial marinas, no C version or D version; it is just a marina and the County has admitted that. In North Carolina law, when you admit something in a judicial
proceeding, like a court of law, that is bonding. Also the County, in their response to certain allegations in the complaint, admitted the marina applied to all of Hom
the father of Tim Ward to my immediate left and Donnie Ward to my next left. Homer Ward is deceased. Special use permits run with
the land and run with the kids and also passes on to successors of sons. We are here tonight opposing the citations that have been imposed upon us and we are in the position that we
have the right to do certain things on this property. We are not trying to force you to change things. We are just trying to have the right to do what we have the right to do. Mr. Lee
then swore in Mr. Sam Burgess for testimony. He asked Mr. Burgess to identify himself. Mr. Sam Burgess stated his name and said he is a Planner with New Hanover County Planning Department
and he has been there for 21 years. Mr. Lee asked Mr. Burgess if he had had the opportunity to review the Dexter Hayes affidavit. Mr. Burgess answered yes.
7 Mr. Lee asked Mr. Burgess if the information in the affidavit was accurate and correct according to his experience with the Planning Department. Mr. Burgess said the information was
accurate. Mr. Lee asked Mr. Burgess if any information was incorrect and Mr. Burgess answered no. Mr. Lee asked Mr. Shanklin if he would like the opportunity to ask Mr. Burgess questions
on the affidavit. Mr. Shanklin said they would not need to ask Mr. Burgess any questions concerning the affidavit. Mr. Lee asked Mr. Shanklin the whereabouts of the specific orders that
they are appealing. Mr. Shanklin said they are appealing the residential aspects of classification of properties, residential from the standpoint of use, the right to telephones, the
issue of floodplain regulations, and the construction issues. Ms. Hines pointed out that the floodplain issues are in a separate file in this matter and she has not addressed them at
all tonight. She said they are under a different set of regulations and for the sake of clarity they had to keep the two cases separate. Ms. Hines added that she has already provided
Mr. Shanklin with their response. Mr. Shanklin said they have resolved the issue with the RV and electrical. Mr. Lee asked Mr. Shanklin to continue. Mr. Shanklin called Mr. Tim Ward
for testimony Following is the testimony of Mr. Timothy Ward: Mr. Shanklin asked Mr. Ward to identify himself, for the record. Timothy Ward. I reside at 6601 Sedgewood Road in Wilmington.
Mr. Shanklin asked Mr. Ward if he was a plaintiff in the lawsuit marked Exhibit A. I am. Mr. Shanklin asked Mr. Ward if he helped prepare the document. I did. Mr. Shanklin handed Mr.
Ward a document, which he said was marked Exhibit B. He asked Mr. Ward if he could identify the document. Yes, it is the answer that we put in to Superior Court. Mr. Shanklin asked if
that was supplied by New Hanover County.
8 Yes Mr. Shanklin said those are true copies of the filing of that pleading which is Civil Action No. 04CVS2195. He asked Mr. Ward to read number 4. Plaintiffs are owners in fee simple
of property located at 1512 Burnett Road, Wilmington, New Hanover County, North Carolina, which property is identified as Lots 1, 2, 3, and 4 of Block 3 of the Tucker Burnett subdivision
and more particularly described in that general warranty deed dated and recorded on June 20, 2001, in Book 2963 at Page 412 of the New Hanover County Registry, a �
�
Mr. Shanklin asked if that was the deed into him and his brother Donnie Ward. He also asked who currently owns the property. Yes. It has been transferred into Carolina Marina
and Yacht Club, LLC. Mr. Shanklin asked who the members were in that corporation. Timothy [ myself] and my brother Donnie. Mr. Shanklin asked him to turn to appellants Exhibit A and
read number 5.
Homer H. Ward, Special Use Permit No. 13 to operate a commercial marina on the Subject Property. Mr. Shanklin asked him to read numbers 6 and 7. He also as
response. # 6. A true and accurate copy of the aforementioned Special Use Permit No. 13 is attached hereto # 7. Special
Use Permit No. 13 was validly issued by the Board of Commissioners of Defendant Count
to the benefit of Plaintiffs as successors in title and heirs of their father, and continues to be a valid
permit currently. Paragraphs 6 and 7 admitted (Count Mr. Shanklin asked who is Homer H. Ward and if he was deceased and if he and his brother Donnie are heirs.
He is my father. He is deceased. He died January 2000. Yes, we are his heirs. Mr. Shanklin asked Mr. Ward if Exhibit A was a true copy of the deed. He asked him to read the legal description.
Yes. Lots, 1, 2, 3, & 4, Block 3, Tucker Burnett. Mr. Shanklin asked Mr. Ward to identify appellants Exhibit C. A copy of the Tucker Burnett subdivision as drawn back in May 10,1947.
9 Mr. Shanklin asked if the map accurately shows the lots referenced to the deed. Yes. Mr. Shanklin had Mr. Ward to highlight the lots with a yellow marker. Mr. Shanklin asked Mr. Ward
to identify appellants Exhibit D. It is the Application for a Special Use father,
for special use for a marina. Mr. Shanklin asked the zoning of the four lots in 1971. R-15. Mr. Shanklin
asked Mr. Ward the date of the Application for Special Use Permit. May 6, 1971. Mr. Shanklin asked Mr. Ward to identify appellants Exhibit E. It is the subsequent Special Use Permit
granted by New Hanover County to my father for the purpose of establishing a marina. Mr. Shanklin asked if it was a true and accurate copy of that permit. It is. Mr. Shanklin asked Mr.
Ward if his father filed any other applications regarding this property in use of a commercial marina in 1971. With various agencies for dredging, he established a store on the pier
that sold various commodities such as beer and gasoline. He had underground storage tanks and he had to apply for those permits. So, yes he had other applications. Mr. Shanklin asked
Mr. Ward to identify appellants Exhibit F. This is the drawing prepared by my brother, initials show DHW. He drew this after discussions with my father and it was attached to the Special
Use Permit application and with the other permit applications, to show the scope of what he had envisioned for the marina. Mr. Shanklin asked Mr. Ward where he lived in 1971. I was living
at this residence. Mr. Shanklin asked Mr. Ward to describe the property at the time the permit was issued.
size of the home, but there was no paving done, no fence built, the pier
was built, and the boat ramp
10 was in position. There was discussions about trying to obtain the additional bulkhead shown as proposed and the north gate was in place to provide access. Mr. Shanklin asked Mr. Ward
if he, his brother, father and mother lived at that location. We did. Mr. Shanklin asked Mr. Ward to identify appellants Exhibit G. �
�authorization to use to property for the benefit of the family; that
we would be in control of what took place. So, they granted the deed to us. Mr. Shanklin asked if on June 20, 2001, he and his brother Donnie sold off the property. He asked if it was
the same property shown on the original application for a Special Use Permit. Yes. Mr. Shanklin asked if his father operated a commercial marina on this property. He did. Mr. Shanklin
referred to a letter from Ms. Hines in April concerning the telephone. He asked Mr. Ward where the telephone was located. �
�that remains on the property. It has two large roll-up
doors 20 feet high with two large bays for servicing boats. Mr. Shanklin asked Mr. Ward to identify the photograph marked as appellants Exhibit H. That is the boathouse. Mr. Shanklin
asked Mr. Ward when the structure was built.
Mr. Shanklin asked Mr. Ward if there is a telephone in the structure and where is it located.
It is located on the very back wall, which was the most direct point where Southern Bell could access to put a phone in. Mr. Shanklin asked Mr. Ward if a residence was built on this
property before the Special Use Permit was applied for back in 1971 and when was the structure built. Mr.
Shanklin asked Mr. Ward if the structure was on the site today.
11 Mr. Shanklin asked Mr. Ward if the structure was torn down. Yes it was. We had a contractor tear it down. Mr. Shanklin asked Mr. Ward what business is transacted at the building.
I had a marina in the development stages and currently operate to a limited degree. I incorporated in 2002. Mr. Shanklin asked Mr. Ward if the property lines had changed since the Special
Use Permit was issued in 1971. They have, as Ms. Hines referred. The site plan called for the property to become even on both �
�for, authorized and fill that did take place, just not to
the extent that the original proposed drawing has but i
on the southeast property line area area of the property. Other than that all other property lines have remained intact. Mr. Shanklin asked Mr. Ward
if he has a current CAMA application pending and what is the status. I do. It is actually on hold at this point. They are researching further documents based off of
Mr. Shanklin referred to the April 6, 2005 letter. He asked Mr. Ward if he could identify the letter. Yes, I received this letter. Referring to item number 4, Mr. Shanklin asked Mr.
Ward if he was requested by Ms. Hines to pave some of the property. Yes, I was told by Ms. Hines that I had to do that. Her reference was that the paving had to be inline with the original
1971 proposed parking plot. Mr. Shanklin asked Mr. Ward if he intends to do that. I do intend to do that. As I said to her, it is a matter of at what point is it a necessity. I have
currently a pending stormwater plan for an application that should be back in a month or two. So, �
� Mr. Lee called a 5 minutes recess. Following recess Mr. Lee instructed Mr. Shanklin to continue
his testimony. Mr. Shanklin asked Mr. Ward to identify appellant Exhibits I and J. Mr. Shanklin said they are the minutes from the Planning Board and the Board of Commissioners with
the adoption of the Special Use Permit number 13. He asked Mr. Ward if these were the true and accurate copies of those documents.
12 coincides
with the Special Use permit that we have already talked about. [Exhibit] J is the minutes of the Board of Commissioners. Mr. Shanklin asked Mr. Ward if he has read these minutes and
if the minutes have any conditions that exist to the Special Use Permit. I have read the minutes several times. They do not have any special conditions. Mr. Shanklin asked Mr. Ward if
the minutes discussed anything about telephone usage. It does not. Mr. Shanklin asked Mr. Ward to identify appellants Exhibit J.
Dece�
� Mr. Shanklin instructed Mr. Ward to turn to page 13, Section 52 Residential, also to turn to page14, Section 52-3 Special Uses, Dock and Marinas, and then to page 29, Sections
70 and 71-1(4). He asked Mr. Ward if there are any conditions in the ordinance other than those his father had to meet when the marina was approved. I do not. Mr. Shanklin asked Mr.
Ward to turn to page 30 and read item number 5. In granting the Permit the Planning Commission may recommend and the county Commissioners may designate such conditions in addition and
in connection therewith, as will in its opinion, assure that the use in its proposed location will be harmonious with the area in which it is proposed to be located and with the spirit
of this Ordinance. All such additional conditions shall be entered in the minutes of the meeting at which the permit is granted and also on the certificate of the Special Use Permit
or on the plans submitted therewith. All specific conditions shall run with the land and shall be binding on the original applicants for the Special Use Permit, their heirs, successors
and assigns. Mr. Shanklin asked Mr. Ward if there is any condition in that paragraph with respect to timing in construction. No, there is not. Mr. Shanklin asked Mr. Ward to identify
appellants Exhibit L. Zoning Ordinance for New Hanover dated October 1969, updated and reprinted in 1983. Mr. Shanklin asked Mr. Ward to turn to Section 70 on page 45 and 46. He said
comparing the 1973 Ordinance with the Ordinance of 1971-73, Section 71 has changed. He asked Mr. Ward if that was correct. Yes.
13 Mr. Shanklin said paragraph 4 in the 1973 Ordinance is now paragraph 3 in the Ordinance of 1983. He asked Mr. Ward if that was correct. Yes. Mr. Shanklin asked Mr. Ward to turn to
paragraph 5 in 1971-1973 and paragraph 5 in 1983. He said paragraph 4 in 1983 is a revision of paragraph 5 in 1972. It appears to be. Yes. Mr. Shanklin asked Mr. Ward if there was a
timing requirement in 1983 version of Section 70-1(4). There is. The Special Use Permit issued by the Board of County Commissioners shall become null and void if construction or occupancy
of the proposed use as specified on the Special Use Permit is not commenced within 12 months of the date of issuance. Mr. Shanklin asked Mr. Ward if that time period was in effect when
his father obtained his Special Use Permit in 1971. It was not. Mr. Shanklin asked Mr. Ward if he knew what was actually done on the site once his father was issued the Special Use Permit.
He continued to develop and operate a commercial marina; selling fuel, both gas and diesel, boating supplies, refreshments, stored boats on the property and wet slips; for which there
were 20 wet slips established. He charged people for use of the ramp. Mr. Shanklin then called Donnie Ward for testimony. He asked Mr. Ward to state his name and address. Following is
the testimony of Mr. Donnie Ward: Donald H. Ward. I currently live at 1507 Burnett Road. Mr. Shanklin asked Mr. Ward if he is a party in the lawsuit along with his brother. I am. Mr.
Shanklin asked Mr. Ward if he helped his father with the construction of the marina back in 1971 when Special Use Permit 13 was issued. Yes I did. As a draftsperson going to UNCW, I
thought I knew how to draw a set of plans. He asked and I did. I drew what you see. Mr. Shanklin presented appellants Exhibit F and asked Mr. Ward to identify the document. It is what
I drew. Mr. Shanklin presented appellants Exhibit C and asked Mr. Ward to identify the document.
14 Those are the 4 lots. Mr. Shanklin asked Mr. Ward when he was preparing Exhibit F, which is the site plan for Special Use Permit 13, if he had a drawing of the property. Yes. We had
this. [He referred to Exhibit C] Mr. Shanklin asked Mr. Ward if he went to the courthouse with his father when he was awarded Special Use Permit 13. Yes. I did. Mr. Shanklin asked Mr.
Ward if he went to the Planning Commissioners meeting with this father. He also asked Mr. Ward his age in 1971. Long time ago the best I can remember, yes. I was about 18 ½. �
� I did. Mr. Shanklin asked Mr. Ward if any objections were
raised at the Planning Board and County Commissioner level as to the granting of this Special Use Permit 13 to your father for the commercial marina. As best I can remember, no. Mr.
Shanklin asked Mr. Ward if he has read the minutes of the Planning Commission and County Commissioners meeting. I have. Mr. Shanklin asked Mr. Ward if he read anything in the minutes
of anyone objecting to the issuance of Special Use Permit 13 to your father. Mr. Shanklin asked Mr. Ward if he, his father, mother and brother live at the residence
located on this property. He also asked when was the house discontinued as a residence. We did at that time, yes. In 2002. Mr. Shanklin asked Mr. Ward if he and his wife were living
there at that time. I was and my wife and daughter. Mr. Shanklin asked Mr. Ward where they presently live. We live across the street at 1507. That property was 1512 and 1507 is immediately
across from it.
15 Mr. Shanklin asked Mr. Ward if he helped his father in the operation of the marina and what did he specifically do. I did. I di�
�
�
�t would give you the shirt off his �
�to keep them on trailers, and he was in partnership with my father-in-law with a shrimp boat. He
was in it to make money and that is the only reason he spent his hard earned money, as an electrician to do that project. So from selling fuel, which was gas and diesel, storing boats,
docking boats, we operated a marina. Mr. Shanklin asked Mr. Ward how long he lived in the house with his parents. Well, the house was originally a pump house, which was a cottage and
became two other wings that were added on in probably 1970. We stayed on the property from 1968 on until I got married in 1972. Mr. Shanklin asked Mr. Ward if his father conducted a
business from his residence. He did not, other than his electrical business that he operated out of an office. Mr. Shanklin asked Mr. Ward if his father keep books. Yes. He kept books
on a legal pad. Mr. Shanklin asked Mr. Ward if there was a telephone in the residence. He also asked if he (Homer Ward) received calls on behalf of the marina and if there was another
telephone at any other location on the marina. He did. There was not. Mr. Shanklin asked Mr. Ward when attending the Planning Commission and County County commissioners meeting was there
was any mention of the distinction between commercial and residential use of this property, Not to my knowledge. Mr. Shanklin asked Mr. Ward when he drafted this plan, if someone told
him specifically to show the Ward home. My father told me what to draw. Mr. Shanklin asked Mr. Ward if the fence that is shown on the drawing ever built. Yes, it was. Mr. Shanklin asked
Mr. Ward if the proposed parking area shown in the middle of Exhibit F was used as parking. �
�
16 Mr. Shanklin asked Mr. Ward if there was parking anywhere else on the property. It was limited because of the dredge material on both sides. The dredge material was so soft that
economic
factor, to bring in dirt and to use what dirt was good and solid there. That is what he told me to draw for petition to get this approv
park on at that time. �
� Mr. Lee noted that the two witnesses that had just given testimony were sworn
in earlier. Mr. Matt Nichols referred to Ms. Hines letter of April 6, first paragraph (The distinction between the
constructed in 2004 must be limited to unconditional residential storage). Mr. Nichols
said if you look at the face of Special Use Permit 13, there is no distinction between commercial and residential. He said there is nothing in the New Hanover County Ordinances back
in 1971 currently prohibiting their clients from using the entire property in conjunction with that Special Use Permit. Mr. Nichols said there is nothing in the minutes from the Planning
Board meeting or County lots 2, 3 and 4 with the Special Use Permit.
If you look at the map and permit, the permit applies to lots 1, 2, 3 and 4. Mr. Shanklin said it is their position that the home was a non-conforming use because it applied to the entire
site and that use has been discontinued. He said that marina is on the entire site, they have the right to use the telephone and there was no condition of that when the permit was issued.
Ms. Hines said the County does not argue with the fact that lots 1, 2, 3, and 4 are shown on the Special Use Permit and on the plan. She said they are described as the property subject
to the Special Use Permit, but the difference is that in her reading of the Special Use Permit and of the plan, off-street parking is shown and there are specific conditions on the permit
by the County Commissioners that the off-street parking, in a certain amount, has to be provided for boats and trailers. Ms. Hines said the reason for this is today our ordinance assigns
a certain number of parking spaces for every wet boat slip in the water and a certain number for every dry boat slip because when you have people using a boat ramp, particularly in a
residential neighborhood, there needs to be some place to park. She said the County Commissioners wanted that to be in an orderly fashion on this property and Mr. Ward showed a parking
lot on his plan. Ms Hines stated that they are asking that if the marina is going to offer wet or dry storage space, they provide that off-street parking to the public. Ms. H�
�
The Special Use Permit if granted, shall include such approved plans as may be required. Ms. Hines said in granting special
use permits, the Commissioners make findings that the use will be compatible with the neighborhood and would not endanger the public health and safety. She said it is their contention
that off-street parking is one of those things that preserves the public safety and welfare by providing it on-site. Ms. Hines said Mr. Homer Ward never did it and the County never came
in to revoke the Special Use Permit or force him to do it probably because the use of the property was so limited. She said from what she has seen recently, if this matter was not appealed
she could not see a reason to issue zoning citations for civil penalties for the degree of activity that is there now. She said the purpose of that section in her letter was to advise
the Wards that if they are going to offer boat spaces to the public, now is the time to develop the parking lot. Ms. Hines
17 also said the entire property is shown on the Special Use Permit and the marina is occupying that property, but there are different areas of the property with different labels on
them. She said if we were going to take the residence to be a non-conforming use, the County would never have allowed either of those residential outbuildings to be erected because they
are not shown on the Special Use Permit plan. Ms. Hines said for many years that property housed a dual use and in recent years a single residential use. She said the house is not there
anymore and whether there was an extension telephone or a telephone in the house that Mr. Ward used in connection with the marina could arguably have been a holdover from the non-conforming
use. She said that link has been broken because there is not a house there anymore, but an outbuilding that has been adapted for use as an office. Ms. Hines said t
�
�to assert some perceived right to park cars or store boats
in that area, then that is something that can �
�that the Board needs to focus on those two buildings and their use in connection with the marina, and not carry over into a broader area
that might have implications that none of us can foresee at this point. Mr. Lee asked the Board members if they had any clarifying questions before they go into another phase of the
hearings. Mr. Eckel asked Ms. Hines where on the plan or Special Use Permit did the applicants say they would put asphalt down. Ms. Hines directed him to the key section on the right
hand side of the plan. Ms. Hines pointed out a square that says asphalted and another square that says fill. Mr. Eckel asked where the current boathouse with the telephone located.
Ms. Hines said the County
has accepted them as residential outbuildings because there has been a residential use on the property. She said it is residentially zoned and it has an area that historically was exclusively
residential except for some home occupation activities that Mr. Ward did there. Mr. Eckel asked the definition of a residential outbuilding. Ms. Hines said it is an accessory structure
that is an accessory use to whatever the principal use is, and in this instance, the residence is one of the two principal uses on the property and the other being the marina. She said
the accessory building is for things like storage and parking. Mr. Eckel asked if a residential outbuilding could double as a residential outbuilding and commercial use. Ms. Hines said
there would probably be code problems related with that. In this instance, this �
�district. Mr. Lee reminded everyone that this appeal is focused on those specific issues that were cited here
today. He said if the use is not something you would like to see, if it is going to affect your
18 property values, those are not the issues that we will be discussing. He said it relates to the order of the Administrative Officer in Zoning Enforcement and whether that order should
be upheld or reversed. The Vice-Chairman called for those to speak in opposition to the appeal to come forward to be sworn or affirmed. Attorney Margaret Jennings introduced herself.
She said that she is representing the Wards, cousins of the appellants. She said she would like to speak in support of the County upholding the violations, specifically, with respect
to the division of residential and commercial use of the property. Ms. Jennings was sworn in earlier. Ms. Jennings stated her name again and gave her address as 1501 South 3rd Street,
Wilmington, North Carolina. She stated that she has been involved in this case for a very limited time and she asked the Board to not lose sight of common s�
�we have here is a bad bad decision by the County spiraling into more bad decisions and leaving the Board in a precarious
position to try and figure out what somebody was determining 34 years ago in a special use permit hearing. Ms. Jennings said testimony has been given and what we have is a permit and
a map. She said the focus should be the fence on the map that divides the residential and commercial property. She said a special use permit is something somebody applies for when what
they want to do on the property is not in conformity with what is around the property. Ms. Jennings said Mr. Shanklin has successfully been able to argue in the past that there was a
vested right here and her clients are adamantly opposed to that view. She said there is evidence in the record, that the property closed in 1980 and 22 years passed from the time that
the property was closed out to the time the family came back and said they wanted to open a marina. She said they did not apply for a new permit because they would not have gotten it.
Mr. Shanklin objected saying that is speculation. Mr. Lee sustained the objection. Ms. Jennings continued by stating that the garage is built directly beside the residence and the fact
that it is a large structure does not make it a commercial structure. She directed the Board to the 1969-72 Ordinance, page 30. Ms. Jennings said Mr. Shanklin did not direct their attention
to In the event of failure to comply with the plans approved by the Board of Commissioners or with any other conditions imposed upon the
Special Use Permit, the Permit shall thereupon immediately become void and of no effect. No building permits for further construction or certificates of occupancy under this Special
Use Permit shall be issued, and all completed structures shall be re-graded as non-conforming uses subject to the provisions of Article IV of this Ordinance provided, however, that the
Board of County Commissioners shall not be prevented from thereafter rezoning said property for its most appropriate usethe
Board of County Commissioners could go back and rezone that property in any way possible. She said over a period of numerous years properties undergo dramatic changes and what would
have been acceptable in 1971 may or may not be acceptable today. She said to most people, a marina is not an offensive use of property and had that been an industrial site, the Planning
ecision might not have been the same. She said the map shows a fence clearly delineating out where a residence exists and this proposed marina.
19 Mr. Lee said that issue is not part of the decision or the appeal because it was not part of the property subject to the permit and would not be something before the Board for consideration.
Ms. Jennings said Mr. Shanklin has argued that the entire property is a commercial marina including the area where the residence exists. She said he described lots 1, 2, 3, and 4 and
said they do not specify out any area that is not commercial, therefore they have a right to expand that use into that area. Mr. Lee said it is his understanding that the violation was
not necessarily that they were using this portion of the property that was not covered under the Special Use Permit. Ms. Hines said the decision is based on the fact that there are two
structures that were erected as residential structures in association with a residential portion of the property being used in connection with the commercial marina and the structures
are not shown on the plan for the commercial marina. Mr. Lee said Ms. Jennings is arguing that this is not part of that Special Use Permit from the
perspective of this cannot be used for commercial property under the Special Use Permit, but can only be used for residential by virtue of the Permit. Ms. Jennings continued by stating
that they just want to note to the Board that the previous decision made 34 years ago is why there is a problem now. She said none of the things that were set forth in the permit has
been done; the proposed clubhouse was not built, the parking lot was not done. She said they want you to believe that they have until eternity to do these things. Mr. Lee said that is
not part of the violation and not before the Board. Mr. Shanklin asked Ms. Jennings to read paragraph 4 of the Special Use Permit. Ms Jennings read #4: When proposed clubhouse is constructed
additional off-street parking spaces be provided in accordance with the Zoning Ordinance. Ms. Jennings added that they want that Mr.
Lee called for anyone else in opposition to or support of the appeal to come forth for testimony. Mr. Bill Mason introduced himself and said he was involved in a case with Mr. Shanklin.
He said he is an attorney representing the interveners and he wants the record to reflect that they have taken a position previously with the Planning Board in court and taken the position
here, for the record, because they have to preserve their position that the Special Use Permit is invalid and void for several reasons including the North Carolina vesting statute. He
said their case is still alive in the sense that if Mr. Shanklin is right and the other case comes back, that their motion to intervene will be considered. He said it was dismissed as
moot because their case was dismissed. Mr. David Ward introduced himself and gave his address as 1508 Burnett Road and also owns a home at 1226 Burnett Road. Mr. Ward stated that vested
rights do expire in New Hanover County and the law states that you are given time to perform work and the time limit was two years in 1991. �
�residence several times and performed
work at the residence. He said he helped to pour the concrete for the building on the property in 1990 or1991 and tax records going back to 1989 do not show a permit for this building.
He said their father kept a tractor, his personal boat and many other items in this building. Mr. Ward said Mr. Homer Ward sent a statement to a North Carolina state
20 environmental agency informing them that he had closed the marina down prior to 1980. He then presented pictures to the Board and pointed out the fence on the property. Mr. Ward said
the drawing mistakenly shows 650 feet of property but he has another drawing that shows it as 490 feet on one side and approximately 580 feet on the other side. Mr. Ward also said that
everything on the drawing is labeled as proposed beyond the fence and there is nothing on the front part of the property but a residence. He said the appellants said they were operating
this marina until their to the state. Mr. Ward read from the letter:
In 1990 I have closed down and been out of business for 10 or more years. Mr. Lee asked Mr. Shanklin to explain the letter, for the record. Mr. Shanklin said the letter speaks for itself.
Ms. Hines said a copy of the letter is in the record. Mr. David Ward said the boat ramp was not built until 1992. He said the Corps of Engineer permitted him to put in a boat in 1969
but the permit had long expired before they built the boat ramp. He submitted the letter to the Board as David Ward Exhibit #4. Mr. Shanklin objected stating that anything that deals
with the Corps of Engineers permit and the validity of it is in that jurisdiction and not this Board. Mr. Lee overruled the objection stating that the Board will read the letter and
determine whether it is within their scope or not. Mr. Ward continued his testimony. He said in minutes of the County Commissioners meeting it says he was already dredging and filling.
Mr. Shanklin asked Mr. Ward if he owns any property in close proximity to the property before the Board tonight. Mr. Ward said he owns 1226 Burnett Road. �
� Mr. Ward answered approximately ¼ of a mile in the same subdivision.
Shanklin
said Mr. Ward has not filled the requirements of G.S. 153A-345 and he does not own property next door and therefore has not met the criteria. Mr. Ward said he was on the court papers
when they went to court for the forklift along with other neighbors and it was allowed then by this attorney. He said he lives next door and has been living there for 2-1/2 years and
he is speaking on behalf of his mother because she has hearing problems. Mr. Lee asked Mr. Ward if he received a notice from the County about this hearing. Mr. Ward said yes he did receive
notice. Mr. Ward added that he is directly affected by the decision of this because his home is on the road going into the neighborhood and any traffic going in and out of this neighborhood
will affect him as well as anyone else living there.
21 Mr. Shanklin asked Mr. Ward where he was living in 1971. Mr. Ward said in 1971 he was living in Willow Woods in Seagate. Mr. Shanklin asked Mr. Ward if he visited this Ward property
and Mr. David Ward answered yes. Mr. Shanklin asked Mr. Ward if he was aware that Mr. Homer Ward applied for this Special Use Permit. Mr. Ward said no, he was not aware. He added that
he and the neighbors were not aware that he had a Special Use Permit until 2002 when they applied for another permit. He also said if he and the other homeowners had known he was applying
for a Special Use Permit back in 1971, they would have objected to it. Mr. Lee requested input from legal counsel. Mr. Moore stated that it is a matter of standing and this is a public
hearing. He said they are affected more than the population at large and in his opinion, would have standing to participate and a right to be heard.
Ward. Mr. Lee noted that Mr. David Ward was sworn
in earlier. He called for others that wanted to speak on the appeal to come forth. Ms. Patricia Wall introduced herself and gave her address as 1504 Burnett Road. She stated that she
is against the whole thing but today is concerned about making him do what he has been told to do. She said if he does not provide the parking area, then people will park on the street,
children will be endangered, and customers will park in their yards. She said they do not want any of it but if he is granted to have the marina, he needs to be made to follow the rules
of New Hanover County. Mr. Lee asked Mr. Shanklin if he would like to address the Board with respect to any of the other testimony that had been given. Mr. Shanklin said the facts are
the facts, and the law is the law. Ms. Hines stated that in her initial summary she paraphrased her response and she is concerned that the Board would not digest the content of it. Ms.
Hines said she put a lot of work and thought into it because it is important; it is important to Timothy and Donnie Ward and their business, and it is important to the people in the
neighborhood. She said this is viewed very seriously and they maintained as much objectivity as they possibly could in the face of a fair amount of input from both sides. Mr. Lee asked
Ms. Hines if she is requesting that they continue this matter to have the opportunity to review the documents further. Ms. Hines said she is suggesting that it will take some time for
the Board to digest the information unless everybody here has actually taken the time to read it, and that she would hope that the content of what she has submitted would not be excluded
from consideration by the Appeals Court as not having been before the Board.
22 Mr. Lee asked the Board members if they had any clarifying questions before he closes the public hearing. Mr. Gintoli said his understanding is that they have a Special Use Permit
with a plan of what they were to do and the only problem is two items that Ms. Hines addressed, which are removing the telephone and no rental of boat slips in conjunction with the commercial
marina until the required parking is developed and approved. Mr. Lee said that is his understanding of the issue, also. Mr. Shanklin said when they read the letter from Ms. Hines they
were confused on certain points. He said one issue is the telephone and they have to put in the paving before they can start renting. Mr. Holt Moore further explained that the whole
notion that the telephone has to come out is because of the underlying determination that that portion of the property is residential. He said whichever way the Board finds, there needs
to be some basis for the findings. He said the Board would need to answer that question in order to have a basis for their decision. Mr. Eckel said he has not heard evidence either way
on any telephone calls that were made. Mr. Moore said that the Board might be able to stipulate. He said the fact that they appealed that �
� Ms. Hines said her objection is not altogether about the telephone in the zoning case, but it is the implication of what that telephone
means. Ms. Hines said per the online Talking Phone Book, that telephone is listed as Carolina Marina and Yacht Club with the same telephone number at the same address. She said that
telephone in that building makes that building an office for the marina. She said there is no other office for the marina; the street address is for that property. Ms. Hines said the
only three buildings on that property are this building, a little 12 x 24 shed that was built last fall, and a gazebo, and the only building with a telephone is this building. Mr. Eckel
Eckel said the Board cannot remove telephones but we can limit what they can use the telephone for. He read from Ms. Hines letter �
�rgest storage
�
�issue. Ms. Hines said that is what they are asking to have happen. Mr. Gintoli said his understanding is because there is a telephone in that building, they
are operating a marina and they are not to operate a marina until the paving and the other conditions are met. He said that is the reason it is stated that the telephone is to be removed
because it is listed as a marina. Mr. David Ward said Ms. Hines sent a letter out that the County has taken the position that the fence toward the water was commercial use and from the
fence to the road is deemed as residential. Ms. Hines said that letter was sent from Baird Stewart in Planning Department. Mr. Ward said the County sent a letter stating that they wanted
this property line to divide and they used the fence as a dividing line.
23 Mr. Shanklin said that was a suggestion and not a final determination. Mr. Eckel asked Ms. Hines why they were not asked to build the proposed clubhouse and boat shed before renting
slips. Ms. Hines said the clubhouse by definition in the Special Use Permit was to be incidental to the operation of the marina. It was not an essential part of the marina operation
and, if it had been, it would have been built. She said the reason they are asking for the paving to be done is because the parking has a direct relationship with the use of the boat
ramp, which would be used to maneuver boats in and out of the water and the use of slips. Ms. Hines pointed out that the Commissioners said in the Special Use Permit, if they are going
to build the clubhouse, they would need to provide more parking for it and it was understood that some parking would need to be marked on the property at such time as the clubhouse is
built. How much parking is based on what is in the clubhouse. She said the boat shed on the other corner of the property is on an area as proposed to be filled but it was never filled.
She said that land does not exist and to build a boat shed would require moving it closer to the street, which would result in a reduction in the building setback. She said that would
be a revision of the Special Use Permit that would require County Commissioner approval. Mr. Eckel asked Ms. Hines if the appellant did not have asphalt in the key, would they still
ask for the paving. Ms. Hines said they would ask for an appropriate surface. She said if parts of the property were as �
�the parking spaces would need to be marked and they would be looking
for them to be big enough to accommodate vehicles with trailers. Mr. Eckel asked regardless of the Special Use Permit, if Zoning could mandate what type of surface they had to have for
parking. Ms. Hines said the ordinance says a parking lot has to have an appropriate surface. Mr. Nichols said the Board should not overlook the fact the Chief Zoning Code Enforcement
Official is telling these gentlemen they cannot use a telephone on their property. He said the use of a telephone is a critical issue and it is their position that the County cannot
cite people for using a phone, regardless of where it is, or for whatever purpose they want to use it. He said this is a very basic concept and should not be a law. Ms. Hines pointed
out that no one has been cited and no civil citations have been issued in this case. Mr. Lee then closed the public hearing. He said they may reopen the public hearing to take additional
facts and testimony into the record if the Board deems that they need to ask some additional questions. Board Deliberation
April 6, 2005 is affirmed and said letter does not purport to
impose nor does it impose additional conditions, restrictions, or limitations upon petitioners to block the right to operate a commercial
24 marina on the property above and beyond the conditions contained in the Zoning Ordinance, the Special Use Permit or the lawful regulations pertinent to the property. Mr. Lee asked
Mr. Fuller if he was proposing this motion for final determination now. Mr. Fuller answered yes, to say that we are upholding the ruling of the Zoning Enforcement Official. Mr. Gintoli
said what we have is the Special Use Permit and the plan. He said the plan indicates that this parking must be paved and the Board does not have the authority to change what the Special
Use Permit says. He also said the telephone constitutes the use of a business being there and the business is not allowed until these conditions are met, some of which is paving, moving
the trailer off the site, and completion of electrical work. Mr. Gintoli said he agrees that we should �
� order that says they
need to limit the building to residential storage only. Mr. Lee said if they are using
residential use, as it is supposed to be used. He said the telephone being there does not make a difference.
Mr. Gintoli said it is listed as a marina and they cannot operate a marina. He questioned how a �
�Special Use Permit. Mr. Fuller asked how staff would insure that the conditions of the Special
Use Permit have been met if in a building not intended for occupancy for commercial use, they are allowed to put in a telephone and use that telephone to solicit boat rentals and make
reservations for use of the boat, and ramp. He said they could essentially operate their business in violation of all the other conditions of the Special Use Permit and the County would
have no recourse. Mr. Lee said if they are using it in violation of the Zoning Ordinance, they can shut down the building, cite them with a monetary penalty and other ways they can enforce
this, but he said the issue is, are they using it for commercial or residential. He also said he does not think the Board �
�scope of review as to whether her determination that it is being
used for commercial purpose is before the Board. Mr. Eckel asked if you are not allowed to use your telephone for commercial use in any property zoned R-15. Ms. Hines said in your residence
you are allowed to conduct a home occupation and that can include a home office with a business telephone. Mr. Eckel asked if there is any place in the ordinance, which states a telephone
could not be used for commercial use in an R-15 zoned district. Ms. Hines explained to Mr. Eckel that you probably would not find that in the Zoning Ordinance expressed in the way that
he is saying it, but what is in the Ordinance says you can only use property in certain zoning districts for uses that are permitted in that zoning district. She said if an office or
marina is not permitted by right and only permitted by a Special Use Permit, then that
25 marina office needs to be in place that is shown on the plan. If it is in another building, on that property, then that building is an office with a business telephone in it, and
that is not allowed. Mr. Shanklin referred to Section 23-16 Home Occupation. He said that is a specific use. He said, for example, if he goes to his home and calls a client on the telephone,
there is nothing wrong with that. �
�she said �
�without commercial listing, they would have a valid point, but staff sees this as a violation of this Special Use Permit and Zoning Ordinance. Mr. Eckel said he
agrees with limitation of building use but he cannot agree with removing the telephone from the building. Mr. Lee said he also cannot agree with removing the telephone and if the telephone
is continued to be used to the point where it gives rise to a commercial versus residential use, Zoning could go out and enforce that in the way in which they are allowed to enforce
it. Mr. Gintoli emphasized that it has already be proven that it is being used for commercial purposes because it is listed as a commercial marina. He asked if you advertise in the telephone
book as Carolina Marina are you not soliciting business? The Board entered into discussion about the telephone. Following the telephone discussion, Mr. Lee said they all in agreement
that it has to be limited to a residential use. He asked the Board if they all made that determination based on the evidence. Mr. Malpass said he agrees that they are not in compliance
with the Special Use Permit, at this time. Mr. Lee said there are the residential use issue and the parking issue. Mr. Eckel said the Special Use Permit was for for the entire tract
and it was deemed to be a marina. He said he understand the logic of the fence being down the middle to separate what used to be the
marina, but the permit is for the entire tract. He said the Board could not say that one side of the fence is residential and the other side is commercial. Mr. Lee said part of the
argument is that this is a site-specific plan approval with respect to the uses that were there. Mr. Eckel said he could understand it better if Ms. Hines would say they have to build
a clubhouse and everything according to the plan. Mr. Lee said the first issue is if they construct a new structure it has to be used for residential or can it be used as commercial
as part of the Special Use Permit. Mr. Moore reminded the Board that there is a motion on the table and if they were going to do anything other than vote on the motion, it would need
to be rescinded or modified by the person that made the motion. He also said this is an appeal from the Zoning Official and the ordinance says the concurring vote of 4/5 of the members
of the Board shall be necessary to reverse wholly or partly
26 any such decision. Mr. Moore said that gives the Board the option that they could rule in part or not at all and it would take a 4/5 vote to change anything. Mr. Shanklin said there
is no testimony as to how they anticipate using either building. Mr. Moore said there is a fine line with having the telephone in there and using it commercially. He said he does not
know if it is inappropriate for the Board to make a finding as to whether that telephone can be listed with a commercial name. Mr. Fuller said if you take the Special Use Permit and
the site plan, it clearly delineates the commercial marina property from the residential property. Mr. Lee said all parties have admitted that the Special Use Permit applies to the entire
property. He said the County has said that the entire tract is governed by the Special Use Permit, but that does not necessarily mean they can build any structure there under that Special
Use Permit. He further explained that the it says if they were going to build a new structure there that was not part of the Special Use Permit, it would not be covered by the Special
Use Permit. Mr. Lee said it is not because of where it is located but by virtue of the new building. Ms. Hines said that is correct because by covering the entire property, it means
the special use permit imposes limitations on all of the property. Mr. Lee said based on the evidence, he feels the new structures should be limited to a residential use. He said as
far as parking goes, it incorporates by reference, the Zoning Ordinance. He said whatever the Zoning Ordinance parking requirements are would be a part of this as well and he was not
sure what those requirements would be. Mr. Lee asked Ms. Hines if she knew what the parking requirements were in the older ordinance. Ms. Hines said the ordinance was silent with respect
to commercial marinas. She said the only parking standard for this marina was to meet what is shown on the site plan. �
�Where plans are required to be submitted and approved as part of the application for a Special Use Permit, modifications of the original
plans may be authorized by the Board of County Commissioners after the review and recommendation by the Planning Commission.�
�s, if they �
�plan. Mr. Fuller also said Ms. Hines has been very generous by not telling them to cease and desist because if you look at the Special Use Permit, nuSale
of boating and fishing supplies, except sale of gasoline and oil shall be from an enclosed structureany of the requirements
of the Special Use Permit. Mr. Fuller said they have have not submitted a plan of what they intend to do and it appears they are operating without telling anybody what they are planning
to do or how big it is going to be or if it will ever comply, and they are asking the Board to agree to the plan. Mr. Malpass said they are doing something there now and that is why
Ms. Hines has called the question. He said the Board needs to decide what position to take on this.
27 Mr. Lee said the Special Use Permit says 50% of the off-street parking spaces must be 32 feet in length and it also says when the proposed club house is constructed additional off-street
parking spaces be provided. Mr. Fuller said they have asked for a motion to dismiss the telephone order based on the U.S. �
�permitted to do commercial activities on the entire site regardless of what the map shows. He said Ms. Hines is asking the Board
to affirm her April 6 letter, and they are asking to keep the telephone, operate their business and extend the commercial use beyond the fence. Mr. Moore said the Zoning Board has two
functions; one is variances and the other is to rule on appeals from determinations of the Zoning Enforcement Officials. He said the petitioners are the ones that bring this forward
and they have the right to abandon various claims. He said there are two decisions by Ms. Hines that remain before the Board and the Board needs to either affirm her decision or at least
4 of the 5 Board members would have to vote to change her decision. Mr. Moore said because Ms. Hines has specifically ruled that the telephone should be removed, the appellants are entitled
to a finding on that issue. Mr. Gintoli said the issue that they brought up about the constitutional rights of the telephone, can be handled by the courts, which is their recourse if
the appeal is denied. He said to let the courts decide about the telephone and uphold Ms. Hines letter and reject the appeal. Mr. Eckel and Mr. Lee expressed that they were against that
suggestion. Mr. Shanklin asked Mr. Lee if he could confer with his client. Mr. Lee called a recess. Following the recess Mr. Lee re-opened the meeting and reminded everyone that the
public hearing was still not open. Mr. Shanklin said they want to take 30 days to have the opportunity to resolve part of these items. He said they want to ask the County to re-re-clarify
some of their letter and if he sees one part in the letter that he does not like, he will appeal it. Mr. Lee asked Mr. Shanklin if that would include the second case before the Board
tonight. Mr. Shanklin said it would apply to the everything across the board. �
� Ms. Hines said further development of the marina would be her only concern. She said they would ask that things would remain at status quo
and not see any more boats coming in there. Mr. Shanklin said there would not be any more boats being brought in. Mr. Lee asked if anyone had an objection to continuing this case. Mr.
David Ward said he objects to continuing the case due to the amount of difficulty this has caused in the neighborhood and the affect it has caused on their lifestyle.
28 Mr. Lee said they would first need to do something about the motion that is presently on the
table. Mr. Fuller withdrew his motion. Ms. Hines said she has no objection to a continuance as long as no harm is done by an intensification of activity on the property. She said she
has seen four boats, a couple of jet skies, and no boats parked at the pier. Ms. Hines said her idea of status quo would be a similar level of not much activity through the next month.
Mr. Shanklin said there will be no new customers and they will transfer that telephone number off-site. Ms. Hines said she does not have a problem waiting a month Board Decision 1. Timothy
H. Ward and Donnie H. Ward, 1512 Burnett Road, are appealing the Inspection �
�commercial marina, and other matters. Property zoned R-15. Case No. ZBA-754. 2. On a motion by Mr. Eckel and seconded by Mr.
Malpass the Board voted to continue ZBA Case No. 754 and ZBA Case No. 755 to the July 26, 2005 meeting. Vote: 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 Vice-Chairman