ZBA-8-05
1 MINUTES ZONING BOARD OF ADJUSTMENT August 23, 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 August 23, 2005. Members Present Mike Furman, Chairman Michael V. Lee Horace Malpass Brian Eckel
Tim Fuller 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, and the Board voted unanimously to approve the minutes of the June 2005 and July 2005 Board meetings. Mr. Shanklin asked to speak. He informed
the Board that ZBA Case No.754 has been withdrawn. Mr. Furman swore in County staff, Ms. Ann S. Hines. The first and only case before the Board was as follows: �
�permit for a commercial marina at 1512
Burnett Road is valid. Property is zoned R-15. Case No. ZBA-756. Mr. Furman called Ms. Hines to give an overview of the case. Ms. Hines stated that Mrs. Violet Ward and her son, David
Ward have filed an appeal from her letter to David Ward dated July 8, 2005.
2 Ms. Hines stated that the property in question is located at 1512 Burnett Road in the R-15 zoned district. She said the County Commissioners approved a Special Use Permit issued in
1971 to Mr. Homer Ward for a commercial marina. Ms. Hines stated that Mr. Homer Ward has since died and his sons Timothy and Donnie Ward have taken over the property to operate the marina.
She said Mrs. Violet Ward owns the adjacent property to the south of the marina property. Ms. Hines stated that the County has 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 wet boat slips occurred both before and after issuance of the special use permit. She
said although this activity was limited in scope, it was enough activity for Mr. Homer Ward to become vested in the Special Use Permit for a commercial marina. Ms. Hines stated that
there is considerable evidence that the marina was inactive around 1980, and the ordinance does not provide for the termination of a special use permit that becomes inactive, unlike
the grandfather clause that has provisions for abandonment of a nonconforming use after 180 days of discontinuation of use. She said despite the inactive period of ten years or more,
there is evidence that Homer Ward intended to continue to develop this property under his Special Use Permit, and this evidence includes his construction of bulkheads and a paved boat
ramp. y is correct in finding that Homer Ward did become vested under Special
Use Permit # 13 by continuing to operate his marina after the permit was issued, that the permit was not invalidated or revoked at any time, and that the present owners still have the
right to proceed under its terms and conditions to operate a commercial marina on this property. She added that the permit has not been revoked for violations. Mr. Furman called those
to speak in favor of granting the appeal to come forward to be sworn or affirmed. He swore in: Mr. David Ward Mrs. Violet Ward Mrs. Brenda Elam Mr. Harvey Elam Ms. Patricia Wall Ms.
Kimberly Altman Ms. Linda Altman Ms. Debbie Pye Mr. Donnie Ward Mr. Frederick Altman Mr. Cecil Ward Mr. Lee asked Ms. Hines if the Wards are appealing her determination or her letter.
Mr. Furman called the appellants for testimony. Attorney Margaret A. Jennings stated that she is representing the appellants and she filed the appeal on behalf of Violet Ward and David
Ward. Ms. Jennings stated that they are disputing the determination made by Ms. Ann Hines that Special Use Permit #13 issued to Mr. Homer Ward,
3 does not expire due to a lack of activity as a commercial marina since 1979. Ms. Jennings said numerous changes have been made to the ordinance since 1971 when that permit was issued.
She said if they were operating in 1971 it was non-conforming and their position is whatever the use was, it was limited and came into existence when he installed the underground gas
pumps. She said the marina went out of business in 1980 and the family now wants to do whatever they want to do 30 years later using the same conditions. Ms. Jennings said they couldn
and do whatever they want because the ordinance has changed.
Ms. Jennings said their position is that they have not met all the conditions of that Special Use Permit and 30 years is too late. Mr.
Moore said the first function of the Board of Adjustment is to hear and and decide appeals where it is alleged by the appellant that there is an error in any decision made by the Building
Inspector or other administrative officials in the carrying out or enforcement of any provision of the Ordinance. Mr. Moore said Ms. Hines issued that first letter and David and Violet
Ward are appealing Ms. Ms. Hines said it was not a decision but she only restated what had been stated numerous times.
She said it was not the first time it was stated but might be the first time it was written, and the letter is a
Mr. Shanklin stated that he would like to make a motion for dismissal of the appeal on the following grounds: 1. The County has admitted that the Special Use Permit was valid at that
time and they have a case pending in the North Carolina Court of Appeals in which that was stated. 2. Violet and David Ward do not have the right to appeal because David Ward does not
own the property. 3. The January 2004 appeal by the neighbors was ruled as no standing and based on fact, there is no authorization to exert an appeal. 4. The County is the only one
that has the right to come forth, not the neighbors. Ms. Jennings said the New Hanover County Zoning Ordinance gives them the right to appeal. Board Deliberation Mr. Eckel asked what
would the decision mean if the Board ruled on the merits tonight. Mr. Moore said it would have the same effect but this is a determination and the Board does have the power to do that.
Mr. Fuller said Ann Hines made the determination that the Special Use Permit was still in effect and the appellants want the Board to declare that letter invalid. Attorney Bill Mason
said the residents have made it clear that the Special Use Permit is not valid. He said the Wards went to the Planning Department in 2002 to get approval for some minor modifications
and they could not get approval, so those plans were withdrawn. Mr. Mason said they then applied for a new special use permit and had to withdraw due to opposition from the
4 neighbors. He said the Wards through Mr. Shanklin filed a lawsuit, which is presently in the Court of Appeals. Mr. Mason said there is no action to appeal from. Ms. Hines said she
agrees with Mr. Mason and the letter is not an appealable action. She said it is no more appealable than any other letter. Board Decision: 1. On a motion by Mr. Eckle and seconded by
Mr. Fuller, the Board voted to DENY Mr.
Mr. Furman called Ms. Jennings to continue with her case. Ms. Jennings called Mr. David Ward for testimony. Mr. David Ward said before he sent out the letter he first talked to Mr. Holt
Moore and Ms. Ann Hines, and they both agreed that it was a good idea.
she did not encourage him to do this. Mr. Bill Mason asked to address the Board. He said he wants it noted that they entered
into a settlement with the County and the case was dismissed. Mr. David Ward stated that he did receive a letter from Ms. Ann Hines in response to his letter asking for clarification
on some items concerning Special Use Permit #13. He said that he and the neighbors in the Tucker Burnett Subdivision believe Special Use Permit #13 is not valid. Mr. Ward said according
to the 1969 County Zoning Ordinance there is a time limit on special use permits but he has since been told that Special Use Permit #13 was grandfathered in the new ordinance. He said
there is evidence that the marina was in operation prior to 1971. Mr. Ward said he has letters from Senator Elizabeth Dole, and Colonel Charles Alexander Jr. of the U.S. Army Corps of
Engineers. He said the letter from Colonel Alexander stated that their records show that Homer Ward was only authorized to build a private bulkhead, boat ramp and pier and an application
was never received to construct a marina. Ms. Hines said she is concerned whether actual permits will be submitted because the term private was not used as a qualifier in the Corps of
Engineers permit she had seen. Ms. Jennings asked Mr. David Ward when he became aware of the Special Use Permit. Mr. Ward said in the spring of 2003 a neighbor informed him of the Special
Use Permit. Ms. Jennings asked Mr. Ward to identify Exhibit C. Mr. Ward said it was a copy of Special Use Permit #13 issued to Homer Ward in 1971. Ms. Jennings asked Mr. Ward to read
item numbers #1 and #2 on the Special Use Permit. That 50% of the off-street parking spaces be at least 32 feet in length. (#2)
non- Ms. Jennings asked Mr. Ward
if he has seen the sign and Mr. Ward said there has never been a sign.
5 Mr. Shanklin objected. He said that is hearsay. Mr. Ward said he has been on the property on several occasions, worked in the shop, has been in the house several times and has never
seen a sign. Mr. Ward said the gas tanks were removed in 1989 and Homer Ward sent a letter to CAMA in 1990 stating that they had not been in business for 10 years. He said they shut
down prior to 1980 and the clubhouse was never built. Ms. Jennings presented Exhibit D and asked Mr. Ward to identify it. Mr. Ward said it is the letter to CAMA. Ms. Jennings asked Mr.
Ward to read the handwritten note on the document. Mr. Ward read, �
� Ms. Jennings asked Mr. Ward whose signature is on the document. Mr. Ward said Homer Ward signed the document on October 16, 1989. Ms. Jennings asked Mr. Ward to read the
handwritten note on the next page of the document. Mr. Ward read, �
�Tank Facility I.D. No. 0- Ms. Jennings submitted
Exhibits E and F and Mr. Ward identified Exhibit E as the plan submitted along with Special Use Permit #13 application and Exhibit F as an artist rendition of the plan for year 2002.
Mr. David Ward presented a drawing that he said shows the correct dimensions. He said the 660 feet on the drawing in Exhibit E is incorrect. Ms. Jennings presented Exhibits G and H.
Mr. Ward identified Exhibit G as a letter dated November 10, 2003 to Jason Dail from the Land Management Group about the Wards filing for a CAMA permit. He said the letters states that
the Army Corps of Engineers permit also authorized the original marina construction in 1971. Mr. Ward said Exhibit H is the current plan issued for a Storm Water Permit. Ms. Jennings
asked Mr. Ward how the use is identified on Exhibit H and Mr. Ward said residential. Ms. Jennings asked Mr. Ward what was listed as the proposed use and Mr. Ward said a commercial marina.
Mr. Shanklin objected. He said the document speaks for itself and he moved to strike the testimony from record. Ms. Jennings asked Mr. Ward to identify Exhibit I.
6 Mr. Ward said it is a Planning Department document dated May 7, 2004. He said the document states that because of the location of the proposed boat shed, staff concluded that there
is no way to locate the boat shed without reducing the originally approved setbacks and if they wished to include the boat shed they would be required to go back through the public hearing
process. Mr. Eckel asked if the Code required them to build the boat shed per what was drawn on the map. Mr. Moore said if the boat ramp was there then the parking would need to be in
place because of heavy public use. Mr. Eckel asked if the plans were attached when the Special Use Permit was issued. Ms. Hines said yes. Ms. Hines said it is possible under the current
ordinance you could start construction on a project but not build everything because there is nothing in the ordinance to say Special Use Permits expire. Mr. Furman asked what happens
if you just walk away from the project. Mr. Moore said if the project is never up and running you can walk away because the Special Use Permit runs with the land. Mr. Ward read from
the 1969 Ordinance #4 ll 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.
A 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 twelve (12) months of the date of issuance. Mr. Ward also read #8 of the 1969 Ordinance In the event of failure to comply with the plans approved by the Board
of County Commissioners or with any other conditions imposed upon the Special Use Permit, �
� Ms. Jennings asked Mr. Ward to identify Exhibit J. Mr. Ward said it is the Vesting Rights statute. Ms. Jennings asked Mr. Ward to read #1 under Duration
and termination of vested right. Mr. Ward read A right which has been vested as provided for in this section shall remain vested for a period of two years. This vesting shall not
be extended by any amendments or modifications to a site specific development plan unless expressly provided by the county. Ms. Jennings said the Wards would like the Board to ignore
that and go on the assumption that the Special Use Permit is still valid after 30 years. Ms. Jennings said property changes after 30 years and what was harmful 30 years ago is still
harmful today. She said their position is that the Special Use Permit is no longer valid. The Chairman called for those in opposition to granting the appeal to come forward for testimony.
Mr. Shanklin asked to cross-examine Mr. David Ward. He asked Mr. Ward his age and Mr. Ward answered 46.
7 Mr. Shanklin asked Mr. Ward his age in 1971 and Mr. Ward answered 13. Mr. Shanklin asked Mr. Ward if he had training as an attorney and Mr. Ward answered no. Mr. Shanklin asked Mr.
Ward if he has training as a surveyor and Mr. Ward said no, but he worked with his father who was a trained surveyor. Mr. Shanklin asked Mr. Ward who owns the property next to the Wards
and Mr. Ward said his mother since 1994. Mr. Shanklin asked Mr. Ward how well he knew Homer Ward and Mr. Ward said very well. Mr. Shanklin asked Mr. Ward where his parents lived prior
to 1994 and Mr. Ward said in Willow Woods. Mr. Shanklin asked Mr. Ward if he finished high school and Mr. Ward answered yes. Mr. Shanklin asked Mr. Ward ho
said he visited the property at least a dozen times during the middle of 1970 to 1971. Mr. Shanklin asked
Mr. Ward to identify Exhibit 1. Mr. Ward said it was a sign for Ward Marina. Mr. Shanklin asked Mr. Ward if he had seen this sign before and Mr. Ward said he has seen pictures of the
sign. Mr. Shanklin asked Mr. Ward if he used the New Hanover County Zoning Ordinance Code book for 1969 as his reference and Mr. Ward answered yes. Mr. Shanklin asked Mr. Ward if the
Special Use Permit shows the marina to be in the R-15 zoning district and Mr. Ward answered yes. Mr. Shanklin asked Mr. Ward to identify Exhibit 2 and Mr. Ward said it is the appeal
against the County. Mr. Shanklin asked Mr. Ward if his attorney filed the document and Mr. Ward answered yes. Mr. Shanklin asked Mr. Ward if the pleadings had been sent to him in that
case and Mr. Ward answered no. Mr. Shanklin asked Mr. Ward to turn to page 133 and 134 of the pleadings from Case No.COA05-423. He asked Mr. Ward if he had seen this document before
today. Mr. Ward said yes, it is from the Army Corps of Engineers. Mr. Shanklin asked Mr. Ward to turn to page 46 and identify the document. Mr. Ward said it is the minutes from a Planning
Commission meeting June 2, 1971. Mr. Shanklin asked Mr. Ward to turn to page 48, the 4th or 5th line down and read.
8 Mr. Ward read Mr. Ward informed the Planning Commission he has permits from the Corps of Engineers and State for dredging and most of the dredging and filling has been done. The
Planning Department recommends issuance of special use permit, subject to the following: 1. That 50% of the off-street parking spaces be at least 32 feet in length. 2. Proposed sign
not to be larger than 32 square feet in size-non-illuminated. 3. That no construction of boats be permitted on the lot. 4. When proposed club house is constructed additional off-street
parking spaces be provided in accordance with the Zoning Ordinance. 5. All sales and services connected with the operation of the club facility shall be incidental to the marina operations.
6. Sale of boating and fishing supplies except sale of gasoline and oil shall be from an enclosed structure. 7. No smoking signs shall be posted at each gasoline point. Mr. Shanklin
asked Mr. Ward if it is mentioned anywhere in the minutes that they need approved plans. Mr. Ward answered no, but plans go with the permits. Mr. Furman asked Mr. Ward if he knows for
a fact that there are other non-existing documents. Mr. Ward said no permit ever existed and they have researched that all the way back to Washington, D.C. He said the documents all
say just for a private pier and boat ramp. Ms. Jennings introduced Exhibit J an aerial photograph from the County showing the pier. Ms. Hines said the permit did not say private and
she does not know what it was based on. She said building permits are only retained for six years, so there is no record of a building permit for the pier. She advised the Board to look
at the appeal because it sMs. Hines stated that special use permits issued today may expire for lack of activity,
but that they �
�years to start, but in 1971 there was no such provision. She further stated that just because every single structure is not built that appears on the plan, that does not serve
to invalidate the permit. Mr. Furman called for any others to testify in opposition to granting the appeal to come forward. Mr. Furman swore in Donnie and Tim Ward. Mr. Shanklin asked
Mr. Tim Ward in what year was he born. Mr. Tim Ward answered 1956. Mr. Shanklin asked Mr. Tim Ward to identify Exhibit 3. Mr. Ward said it is the south side of the pier and the building
was used for selling fishing supplies �
� Mr. Shanklin asked Mr. Ward to identify Exhibit 4. Mr. Ward said it is a similar photo of the same area.
9 Mr. Shanklin asked Mr. Ward to identify Exhibit 5. Mr. Ward said it is the beer license good from 1982 to 1983. Mr. Shanklin asked Mr. Ward to identify Exhibit 6. Mr. Ward said it
is a similar document from the State Department of Revenue in 1974 to the Ward Marina. Mr. Shanklin asked Mr. Ward to identify Exhibit 7. Mr. Ward said it is a permit for a beer license
from 1977 to 1978 issued to Homer Harley Ward. Mr. Shanklin asked Mr. Ward to identify Exhibit 8. Mr. Ward said it is North Carolina Board of Alcoholic Control license to sell beer.
Mr. Shanklin asked Mr. Tim Ward when he moved to North Carolina. Mr. Ward said he left in 1985 and moved back in 2001. Mr. Shanklin asked Mr. Ward to identify Exhibit 2. Mr. Tim Ward
said it is the Ward Marina. Mr. Shanklin asked Mr. Donnie Ward if he has lived in North Carolina all his life and Mr. Donnie Ward answered yes. Mr. Shanklin asked Mr. Donnie Ward if
he assisted in the operation of the marina. , and fishing supplies. Mr. Shanklin asked
Mr. Donnie Ward if boats docked there to purchase fuel and Mr. Ward answered yes. Ms. Jennings asked Mr. Donnie Ward if the marina went out of business because their mother got sick.
Mr. Donnie Ward said yes, a Board Decision 1. �
�use permit for a commercial marina at 1512
Burnett Road is valid. Property is zoned R-15. Case No. ZBA-756. 2. On a motion by Mr. Lee and seconded by Mr. Eckel, the Board voted unanimously to
determination.
10 There being no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Vice-Chairman