ZBA-8-06
1 MINUTES ZONING BOARD OF ADJUSTMENT 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 August 22, 2006. Members Present Members Absent Michael V. Lee, Vice-Chairman Mike Furman Brian Eckel Michael S. Jones Dan Weldon
Tim Fuller Ex Officio Members Present Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary Shawn Ralston, Asst. Chief Zoning Enforcement Official 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 etation
in enforcement of the Zoning Ordinance. He added that appellants have thirty days in which to appeal any decision made by the Board to Superior Court. First order of business: Mr. Lee
swore in new alternate Board member, Mr. Peter DeVita. It was properly moved and seconded to approve the minutes of the July 25, 2000 meeting. Messrs. Eckel, Jones, Weldon and Fuller
voted in favor of approval, with one abstention (Lee). Mr. Lee swore in County staff, Ms. Ann Hines and Ms. Shawn Ralston. THE FIRST CASE: Gregory Kull, 1128 Loman Lane, is requesting
a variance from the setback requirements of New Hanover County Zoning Ordinance, Section 53-2 to allow an existing patio awning to remain in its present location. Property is zoned R-10.
Case No. ZBA-789 Mr. Lee said Mr. Wessell, attorney for the applicant, submitted a letter requesting a continuation of this case to the September 26, 2006 meeting. Board Decision: On
a motion by Mr. Eckel and seconded by Mr. Jones the Board voted unanimously to CONTINUE the case to the September 26, 2006 meeting.
2 THE SECOND CASE: Jane H. Hill, 2021 Teresa Drive, is requesting a variance from the minimum side and rear yard setback requirements of New Hanover County Zoning Ordinance Section 52-2
in order to continue construction of a 720 sq ft accessory structure. Property is zoned R-20. Case No. ZBA-787 (Continued from July 25, 2006 meeting). Mr. Lee called those to speak in
favor of or in opposition to granting the variance request to come forward to be sworn or affirmed. Mr. Lee swore in Ms. Jane H. Hill. Ms. Ralston gave an overview of the case. Ms. Ralston
stated that Ms. Hill is requesting a variance from the minimum side and rear yard setback requirements of Section 52-2 of the Zoning Ordinance in order to continue construction of a
720 sq. ft. accessory structure. Ms. Ralston stated the property is zoned R-20 which requires a minimum setback of 15 ft. on the sides and 25 ft. on the rear. She said Ms. Hill submitted
a new survey of the property that shows the accessory structure to be 20.4 ft. to 20.9 ft from from the rear property line and 4.41 ft. to 4.85 ft from the side property line. Ms. Hill
stated she had a new survey done and the side line is not in question, just the adjoining property in the rear. Mr. Jones asked how much was lost on the side. Ms. Ralston said the plan
originally showed an 8.2 ft. setback on the side. Ms. Hill explained that was measured to the side stop but it is no longer at that location. Mr. Fuller asked if the well is still active
that is shown on the original sketch next to the building. Ms. Hill said the well is still active and has been inspected by Environmental Health. Mr. Lee called those to speak in opposition
to the variance request to come forward for testimony. There was no one present to speak in opposition to the variance request. Board Deliberation Mr. Eckel asked Ms. Hill if she attempted
to discuss this with the owner who made the complaint. Ms. Hill said she attempted to discuss this with the owner but the owner just told her to learn the rules and regulations of New
Hanover County. Ms. Hill also said the rear property is a small wooded area with a ditch in the center, but no one uses the area. Mr. Fuller asked the status of the building permit.
Ms. Ralston said the building permit has been denied. Mr. Lee said this is very difficult because the building is almost completed.
3 Mr. Moore said there is the option of granting the variance as to the side but not to the rear. Ms. Hines mentioned that there have been cases in the past when the structures had to
be cut off. She asked Ms. Hill who did the work on the structure. Ms. Hill said her son did the work. Mr. Eckel asked if staff had spoken to the owner who made the complaint. Ms. Ralston
said she had a brief discussion with that owner, and her only comment was that she was unhappy with the structure and she wants the building to be in compliance and not so close to the
property line. Board Decision 1. Jane H. Hill, 2021 Teresa Drive, is requesting a variance from the minimum side and rear yard setback requirements of New Hanover County Zoning Ordinance
Section 52-2 in order to continue construction of a 720 sq ft accessory structure. Property is zoned R-20. Case No. ZBA-787 (Continued from July 25, 2006 meeting) 2. On a motion by Mr.
Eckel and seconded by Mr. Weldon, the Board voted unanimously to DENY the variance request. THE THIRD CASE: Ed Bagley, 203 Patalanda Road, is appealing a civil citation issued for violations
related to structures on his property. Property is zoned R-15. Case No. ZBA-791. The Chairman called those to speak in favor of or in opposition to granting the appeal to come forward
to be sworn or affirmed. Mr. Lee swore in Mr. Edward Bagley, Ms. Patricia Roberts, and Mr. Anthony Grant. Mr. Lee called Ms. Hines to give an overview of the case. Ms. Hines stated Mr.
Bagley is appealing the issuance of a $100.00 citation for violations on his property at 203 Patalanda Road. Ms. Hines said Mr. Bagley had additions done on both a mobile home and an
accessory structure without building permits. She said Mr. Bagley was first contacted in 2004 about the additions, and permitting the work required him to relocate the well and septic
system. She said they have been trying to work with Mr. Bagley for over two years and several letters were issued. Ms. Hines said the mobile home has been enlarged; a portion of the
roof has has been raised, the outbuilding has been converted into a guesthouse complete with kitchen and bathroom; and decks have been added to both structures, all without permits,
and there are also some building setback issues on some of the deck additions. She said a portion of the mobile home addition has been removed but the remaining portion needs building
permits and proper inspections along with an as-built certification by a structural engineer. Mr. Bagley said a fine should be for someone who had failed to cooperate but a year ago
he had completed about 85 % to 90 % of things on their list. He said he removed the 9 by 9 addition to the trailer. He stated that he had the accessory building built so that when he
came down to visit, he and his dog would have somewhere to stay. Mr. Bagley said the septic system had to be placed in
4 the front yard because the inspectors discovered that one drain line of the septic tank was under the foundation and he also had to contact a consulting engineer to point out what
else he needed to do. Mr. Bagley said he has done most of the things that Zoning has asked him to do and he should not have been fined. Mr. Eckel asked Mr. Bagley if he is working towards
being 100% compliant. Mr. Bagley said yes. He said over a year ago he had one mobile home addition torn down and a year ago the septic system was put in place and that was about 85%
to 90% of the total money. He said he came down July 10 to meet with inspectors for the Electrical, Plumbing, and Mechanical Department and they told him to hire contractors to apply
for the permits. Mr. Bagley said the Plumbing contractor examined all of the plumbing, removed the sink and provided a report within three days but the Electrical contractor was not
able to come out until the following week. He said Ms. Roberts wrote her letter about the $100 fine four days after they met and that was not enough time. Mr. Eckel asked Mr. Bagley
the date that he anticipates he will be 100% compliant. Mr. Bagely said he did not know because his attorney, Mr. Robert Calder, will have to prepare a deed for a 4-1/2 ft strip to be
added along the east boundary to meet the setback. Mr. Lee asked Mr. Bagley when he found out about this problem. Mr. Bagley said in 2004. Mr. Lee asked Mr. Bagley when he called Mr.
Calder to help with the setback issue. Mr. Bagley said two months ago. Mr. Bagley also said he had a second survey performed by Sherwin Cribb, who had also done the survey of the house
next door, which caused that neighbor to erect a fence on the incorrect line. He said he measured six feet from that incorrect line to build his deck, but the line was actually 4-1/2
ft. in and he was not aware of that until he received a survey from Hobbs. Mr. Bagley said the only thing he could do was to have the neighbor agree that she would not claim the 4-1/2
ft. on his side of the fence. Mr. Fuller said in Ms. thMr. Bagley has not procured building permits for the
work. Mr. Bagley said he got six permits; the first permit was in December 2004 for the work on the septic tank. Mr. Fuller asked Ms. Hines for clarification about the building permits.
Ms. Hines said Mr. Bagley has still not gotten building permits for the work. �
�second day offense is He asked when that second offense would occur. Ms. Hines said that would occur when he is cited again. Mr. Lee
called Ms Hines to give additional information on the case.
5 Ms. Hines stated they have tried to work with Mr. Bagley for two years without getting the desired results. She said Mr. Bagley did make applications in 2005 for two building permits
but they were not granted because neither of the two buildings met the required building setbacks. She said Mr. Bagley removed one mobile home addition and completed work on the septic
repairs in late 2005. She said the outbuilding was built over part of the septic system, and had also been tied into the septic system for the mobile home, which was not acceptable without
permits from the Health Department. She said there were serious questions about the floor loading on the guesthouse building and the structure integrity of the mobile home; therefore
an as-built analysis had to be made by a structural engineer. Ms. Hines said both of these structures have living space, that there are safety issues and wiring work involved, but the
bulk of the work involves the structures themselves. Ms. Hines said the property has now been placed in a flood zone due to new flood maps adopted in April 2006 and more information
is needed to issue the Building permit because the value of the work needs to be assessed. She said if the value of the work exceeds half the value of the structure before the work started,
the buildings would need to be elevated, possibly on pilings. Ms. Hines said portions of the decks are going to have to be removed unless Mr. Bagley comes to the Board seeking a variance
for the decks and this was explained to him in July 2004. She said the mobile home in the rear is non-conforming but they agreed to let it stay in that location; however, one of the
elevated decks on the mobile home is within the 20 ft rear setback. Further, it is questionable where the edge of the right-of-way is on the front side of Patalanda Road, and there may
be front setback problems as well. Ms. Hines said the guesthouse deck near the side property line is just about completed but that would not keep him from getting a permit for the mobile
home work. She directed the Board to Exhibit F, a letter dated April 11, 2006, which spells out Mr. iod. She said Mr. Bagley had the opportunity
to appeal, and the time has run -day period
for filing of appeals. She reiterated that the violation did exist on the date they were at the site and issued the civil citation. Ms. Hines said this is a complicated matter and the
delays have made it worse and that is the reason Mr. Bagley had to be cited. Board Decision: 1. Ed Bagley, 203 Patalanda Road, is appealing a civil citation issued for violations related
to structures on his property. Property is zoned R-15. Case No. ZBA-791 2. On a motion by Mr. Jones and seconded by Mr. Eckel the Board voted unanimously to DENY the appeal. THE FOURTH
CASE: Violet P. Ward and David Ward have appeasite plan submitted for a commercial marina
at 1512 Burnett Road; appeal relates to reinstatement of plan approved September 29, 2005. Property is zoned R-15. Case No. ZBA-790 The Chairman called those to speak in favor of or
in opposition to granting the appeal to come forward to be sworn or affirmed. Mr. Lee swore in Mr. David Ward, Ms. Violet Ward, Mr. Tim Ward, Ms. Kim Altman, Mr. Bill Raney, Mr. Donald
Ward, Mr. Kenneth Shanklin, and Mr. Matthew Nichols. Mr. Lee called Ms. Hines to give an overview of the case.
6 Ms. Hines stated Violet and David Ward have filed a second appeal concerning a commercial marina, next door to their property, approved by a special use permit in 1971, in addition
to the appeal already before the Board. Ms. Hines said in the past two years the Board has considered other appeals concerning this property filed by both the marina property owners
and the appellants in this case. She said the Board upheld staff in all these cases, affirming that: 1. The special use permit is still valid. 2. Parking improvements are needed for
the marina owners to proceed with additional boat storage. 3. Residential storage buildings on the marina property may not be used in connection with the marina. 4. Floodplain elevation
requirements and use limitations apply to those outbuildings. Ms. Hines said the current appeal relates to changes in the special use plan that were approved as minor changes by Planning
and Inspections staff, such that the special use permit did not have to go back to the Commissioners to be modified. She said Planning and Inspections have given administrative approval
under Zoning Section 71-1 for a series of minor changes and refinements to the site plan: 1. The first approval was given August 19, 2005 for a temporary gravel parking lot. 2. On September
29, 2005, a full site plan was submitted that refined the original 1971 site plan to: a) Reflect accurate measurements. b) Deleted a boat shed. c) Shift some floor area from a trailer
to an office that will be attached to the club house. d) Added parking spaces that were authorized in the original permit. e) Added underground wastewater and storm water management
features. f) Modified the dock configuration. Ms. Hines said her position is that the appeal is either too early or too late. She said it is too early in the sense that no building permit
has been issued, based on this plan. Ms. Hines said the owner has a stamped plan with a stamped approval on it that is being used by the owner to try and get other permits needed for
this facility (i.e., CAMA, stormwater permits, grading permits). Ms. Hines asked the Board to dismiss this appeal, acknowledging that there is still the
e. Ms. Hines said the appeal was not filed within the two-�
�knowing about the plan approval, and the Zoning Board of Adjustment Rules of Procedure call for a 14-day appeal period following notification of the
action. Ms. Hines said the appellants knew about this plan several months ago because she talked to David Ward around the time staff approved the plan. Ms. Hines said Mr. Ward knew about
the plan in February 2006 because he stated in a letter to her that they had been studying the September 2005 site plan. Ms. Hines said the Wards have been habitually late in filing
these appeals, noting that the February 14, 2006 plan was appealed three months late late in April. She said to allow an appeal at just any time would not be fair because people spend
money on design and construction based on plan approvals. Ms. Hines said this Board has adopted a policy in its Rules of Procedure for a 14-day period to file an appeal, and she asked
the Board to strongly enforce this rule in this case.
7 Mr. Lee reminded the Board that the only matters to be considered in this case are the facts and evidence as presented tonight. Mr. Lee called for those to speak in favor of granting
the variance to come forward. Mr. Bill Raney stated that he is the attorney representing Violet and David Ward. He said the Wards are most interested in having a hearing on whether these
administrative staff approvals are minor changes or major changes that should have been submitted for consideration through the normal special use process (public hearing, Planning Board
and County Commissioners). Mr. Raney said their primary concern is that in the past, the Wards and others in the neighborhood have not received written notice of certain actions being
taken. He said a previous lawyer for the Wards had asked to be notified of any proceedings or approvals, but when the September 29 staff approval was given there was no written notice
to the Wards. Mr. Raney said they want assurance that they would be notified in the event a building permit is issued and that they would have the opportunity to appeal at that time.
He said the Wards also have concerns that the owners would say they already have the approval, and they have spent money reliant on that approval, and they do not want to have that argument
as a reason for not granting an appeal. Mr. Raney said they can discuss that issue first and if it that is not resolved then they would want to argue that the hearing is appropriate
on the merits and it is not too late. He said he has been discussing this with Mr. Ward and he is not �
�asked for a 3-minute recess to confer with his client. Mr. Lee called a 5-minute
recess. Following recess, Mr. Raney said their position is the Wards have a right to appeal the decision and they want the opportunity to argue their case tonight. Mr. Raney read from
Zoning Ordinance, Section 108: Duties of Building Inspector, Board of Adjustment, Courts and County Commissioners as to Matters of Appeal: 108-1: It is the intention of this Ordinance
that all questions arising in connection with the enforcement of this Ordinance shall be presented first to the Inspections Director or when so delegated to the Zoning Enforcement Officer
and that such questions shall be presented to the Board of Zoning Adjustment only on appeal from the Inspections Director or Zoning Enforcement Officer. Mr. Raney said that language
is important because it shows that the Wards tried to follow what they understood was the procedure. He said they have followed that procedure in the past and in some of �
�The decision or ac
Ordinance that would indicate any time limit
for an appeal, and the 14 days may have been discussed with them before, but it is not possible to file an appeal in 14 days. Mr. Raney proceeded �
�14 days after the interested party or parties receives notice of the order, requirement, decision,
or determination by the County official. He said when the Wards got a notice at the end of March from the Zoning Officer, the September 29 approval had been done and the Wards appealed
that on April 11. Mr. Raney then called Mr. David Ward for testimony. He asked Mr. Ward how he first heard of the amended plan. Mr. Ward said on December 20, 2005, Tim Ward asked for
a meeting with the homeowners to inform them of his plan to go before the Planning Board to request permission to have a dry boat �
� drawing and a
8 was
not the same as what the County said he planned to do, he went to the Planning Department in January and talked to the Planning Director, Dexter Hayes. Mr. Ward said Mr. Hayes informed
him that they did have a change in plans. He said Dexter Hayes showed him the new plan and he got a copy of that plan the latter part of January. Mr. Ward said he sent a letter to Ann
Hines on February 9 asking
those questions because they were too lengthy. He said he sent another letter with questions
ould not answer answer for statements made by Tim Ward. Mr. Ward said he was relying on answers from Ms. Hines in order to make an appeal.
He said they were promised by the County that this site plan from 1971 would not be changed and he was not aware of the changes until January 1. Ms. Hines asked Mr. Ward if he recalled
the letter sent to him on February 17 where he was notified that another minor revision had been made and he could view that plan at the Planning Department. Mr. Ward said yes and he
did go to Planning to view that plan and get a copy of it. Mr. Shanklin asked Mr. Ward if he had been in several hearings with him. Mr. Ward said no, they had been here before for one
case. Mr. Shanklin asked Mr. Ward if he had been to the Planning Board hearing in December 2002. Mr. Ward answered no. Mr. Shanklin asked Mr. Ward if he was aware of a lawsuit involving
his client and the County. Mr. Ward said yes. Mr. Shnaklin asked Mr. Ward if he tried to intervene in that lawsuit in 2004. Mr. Ward answered yes. Mr. Shanklin asked Mr. Ward if that
hearing was August 23, 2005 and if he testified at that hearing. Mr. Ward said yes to both questions. Mr. Shanklin asked Mr. Ward if he questioned the validity of Special Use Permit
#13 at that hearing and did he also present copies of letters he had written to various government agencies (Army Corps of Engineers, Division of Coastal Management), to Senator Dole
and Congressman Mike McIntyre. He also asked Mr. Ward if he continued writing to those agencies in 2005 and 2006. Mr. Ward answered yes to all questions. He said he wrote to whoever
would listen in order to stop the destruction of a primary nursery and that Senator Dole, Mr. McComas, the Lieutenant Governor and Congressman Mike McIntyre are all very concerned with
that area. Mr. Shanklin asked Mr. Ward if he has been intensely involved with fighting this case and how many attorneys had he hired since 2004. Mr. Ward said yes he is deeply involved
and they have had several attorneys.
9 Mr. Shanklin asked Mr. Ward when he hired Mr. Raney. Mr. Ward said in November 2005. Mr. Shanklin asked Mr. Ward if he recalled saying, when he testified before the Planning Board,
that Tim Ward had more plans than he had shirts. Mr. Ward said yes, because he has changed his plans several times. Mr. Shanklin asked Mr. Ward the first time he saw the September 29,
2005 plan. Mr. Ward said January 1, 2006. Board Deliberation Mr. Lee said the first item to address is whether the appeal is premature. He said he does not think it is premature and
they do have the opportunity to appeal in the future. Mr. Fuller said he agrees with Mr. Lee and the appeal should be known before the developer spends too much and gets too far along
in the process. Board Decision 1. On a motion by Mr. Fuller and seconded by Mr. Jones, the Board voted unanimously that the appeal before the Board at this time is not premature. Mr.
Lee said there is a 14-day requirement and there are several variations to this particular matter. He directed the Board to the timeline on the plans on page 2. He said it appears that
when the last plan was withdrawn, the September plan was revived to become the latest plan. He said it appears that an appeal was filed within the 14 days from the withdrawal of the
last plan. Board Decision 2. On a motion by Mr. Lee and seconded by Mr. Fuller the Board voted unanimously that the appeal was filed in time and that it was filed within 14 days of the
appellant receiving notice of the September plan being re-approved. The Board will hear the appeal. Mr. Raney passed out some materials that he said included the original documents relating
to the 1971 plan approval, the action of the Planning Board, the action by the County Commissioners and the plan approved September 2005. Mr. Raney said it is their position that the
approval of the modifications of the newer plan were more than insignificant because they do not meet the standards provided in the Ordinance for staff approval. He read Section 71-1(9)
of the Zoning Ordinance: The original applicant(s), their successors or their assignee may make minor changes in the location and/or size of structures provided the necessity for these
changes is clearly demonstrated. Minor changes shall be reviewed by the Planning Department and upon favorable recommendation by the Planning Director may be approved by the Superintendent
of Inspections. Such approval shall not be granted should the proposed revisions cause or contribute to:
10 (A) A change in the character of the development. (B) A change of design for, or an increase in the hazards to pedestrian and vehicle traffic circulation, or (C) A reduction in the
originally approved setbacks from roads and/or property lines. Mr. Raney said it is their contention that the proposed new plan changes the character of the development in several ways.
He said the most obvious one is the nature of the dockage, the docking facilities, the wave walls and the significant increase in the parking area. Mr. Raney said on the old plan the
parking area is a considerable distance from the water but the new proposed parking plan has almost twice as much area and moves the paved parking area much closer to the water which
is a significant change in the character of the development [from Zoning Ordinance, Section 71-1(9)(A)(B)(C)]. Mr. Raney said the second standard in that Section of the Ordinance, indicates
that a plan shall not be granted if there is a change in design or increase in the hazards to pedestrians or vehicle traffic circulation and the third standard states a reduction in
the originally approved setbacks from roads and/or property lines. He said although the setbacks were not specifically mentioned in the action of the County Commissioners in the 1971
plan, the setbacks are shown on the plan. He said the setback from the bulkhead to the paving is greatly exceeded by the new plan. Mr. Raney then called Mr. David Ward to speak on the
differences between the two plans. Mr. Ward said the number of parking spaces on the old plan was 22 and now they want to have 41 spaces. He said the parking lot was scaled to be 230
plus feet away, 140 wide and 230 feet across the property. He said on the new site plan the parking lot is 30 feet away from the bulkhead wall with dockage added, but a primary nursery
is in that area that is protected and should not be disturbed. Mr. Ward said Tim Ward has said that he will have fuel on land and out in the water, and this could affect their drinking
water. He said the wave wall could possibly cause erosion. Mr. Raney asked Mr. Ward if he had any concerns about the addition of the storm water collection disposal system on this property.
Mr. Ward said yes. He said they want to have a detail shop to wash boats and a mechanic shop for vehicles which means anything that drains off the boats and cars would run into the system
and if the pump fails, it would run into the waterway. Mr. Raney asked Mr. Ward the proximity of the wells to the storm water disposal system. Mr. Ward pointed to the location of the
wells on the map. He also pointed out Carolina Beach Inlet on the map and said in the event of a hurricane the docks would end up being blown onto their property or floating on the waterway.
He said it would devastate their homes and property. Ms. Hines asked Mr. Ward what he said the dimensions of the paved parking area were on the original plan. Mr. Ward said 140 feet
x 200 feet. Mr. Raney submitted the old plan as Exhibit A and the new plan as Exhibit B. Mr. Matthew Nichols asked Mr. Ward where he lives. Mr. Ward said to the south of the property.
11 Mr. Nichols asked Mr. Ward if he testified that he was not aware of the 1971 plan until after 2000. Mr. Ward said they found out about the plan in December 2002. Mr. Nichols asked
Mr. Ward if he was aware that the property was a marina property for many years. Mr. Ward said no, that property was private family property. Mr. Nichols asked his relation to Mr. Tim
Ward. Mr. Ward said they are second cousins. Mr. Nichols asked Mr. Ward if he was aware that Tioperated
a marina 20 or 30 years ago. Mr. Ward said he was not aware of the special use permit and he did not see a marina operating at that location. Mr. Nichols handed a copy of the 1971 special
use permit to Mr. Ward and asked him to read number 4. when proposed clubhouse is constructed, additional off-street parking spaces need to be
provided in accordance with the Zoning Ordinance. Mr. Nichols asked Mr. Ward if the 1971 special use permit contemplates an increase in parking. Mr. Ward said yes. Mr. Nichols asked
Mr. Ward if it is determined by Zoning that the special use permit is in compliance with the Ordinance, would he agree that the increase in parking is OK. Mr. Ward said no, the increase
in parking is not OK because the 1971 special use permit had 22 spaces and to increase it to 41 is not what was approved in 1971. Mr. Nichols asked Mr. Ward his expertise in storm water
design and storm water permits. Mr. Ward said he helped his father who was in the heavy equipment business, worked with different contractors for many years installing drainage systems
and concrete work where he had to be familiar with slopes. Mr. Nichols asked Mr. Ward what licenses he has. Mr. Ward said he is a self-employed sub-contractor. Mr. Raney asked Mr. Ward
if he was referring to a particular type of parking when he spoke of the 41 parking spaces versus the 22 spaces on the plan. Mr. Ward said yes, half the parking spaces for boats on trailers
trailers would increase to 32 feet in length. Mr. Raney asked Mr. Ward if the parking would change for the clubhouse on the new plan.
12 Mr. Ward said the floor plan for the 1,500 sq. ft. clubhouse shows 45 parking spaces, but the Ordinance calls for 15 spaces per 1,000 sq. ft. Mr. Lee asked Mr. Ward if he was aware
of gas pumps being at the location. Mr. Ward said they found out that for a brief time some gas pumps were on the pier but there are not any records to prove it. Mr. Nichols asked Mr.
Ward if he just testified that he was not aware of a marina operating at that location. Mr. Ward said he testified that he recently found out that there were some gas pumps, for a short
period of time, on the pier. He said that does not constitute a marina. Mr. Ward said a marina would be docks and boats and boats have never been docked or stored there, and there has
never been a parking lot or building. Mr. Nichols handed Mr. Ward a picture (Exhibit 1) and asked him to identify the picture. Mr. Ward said both boats in the picture belonged to Homer
Ward. Mr. Nichols handed Mr. Ward another picture and asked him if he had ever seen that sign.
outside. Mr. Lee called Ms. Hines to present additional information. Ms. Hines stated County
staff has the discretionary authority to approve minor changes in special use permits. She said the process is that the Planning Director first reviews the plans and recommends approval,
then the Inspections Director (as has been delegated to her) evaluates it and either agrees or disagrees. Ms. Hines said there were discussions between herself and other staff members,
including Dexter Hayes, Planning Director at that time, and who signed off recommending approval of the plan. She said Dexter Hayes concluded that while the linear footage of the structure
was greater, the impact of the plan was less because the original plan had boat slips and tie pilings on both the north and south side of the original pier, which was 200 feet in length.
Ms. Hines said on the September 2005 plan it notes a small floating dock on northernmost of the two structures and two 25 ft boat slips. She said on the other dock is one 40 foot slip
and seven 25 foot slips, which totals 10 boat slips, and is a reduction by at least half of the original boat slips. Ms. Hines said the northernmost pier is shorter in length by 15 feet
and the southern one is an 8 ft wide floating dock that the marina owners say they intend to use as temporary dockage for boats waiting to come out of the water. Ms. Hines said it was
not a significant increase in the parking area; it is about 40,000 sq. ft on the new project as opposed to 32,200 sq. on the old plan, factoring in the 30 ft wide access to the water.
She said the wave wall was not a significant change. She said the special use permit contemplated additional parking spaces being added to serve the clubhouse that was to be larger than
what was allowed under the old plan. She said the owners have not presented plans showing showing whether that clubhouse would be a multi-story structure or a single elevated structure,
and they would be allowed 45 spaces. She added that the Ordinance does not specify a maximum number of parking spaces. Ms. Hines said the original permit did not limit the parking spaces
to the ones marked on the plan but did limit them to an area east of the fence. The plan showed a building setback of 30 feet off the high water line, which is the CAMA coastal
13 shoreline buffer, and that setback was also preserved in the clubhouse and the parking spaces. Ms. Hines said the Conservation Overlay District setback was mentioned but staff did
not feel that it applied to this project because the COD Ordinance did not exist at the time the special use permit was granted. Mr. Fuller said even though the Conservation Overlay
District did not exist in 1971 when the special use permit was issued, one of the requirements is when the clubhouse is constructed additional off-street parking spaces to be provided
in accordance with the Zoning Ordinance. He asked if they are allowed to go by the 1971 Zoning Ordinance when the clubhouse is constructed. Ms. Hines said she understands that to mean
it goes by the parking requirements of the Zoning Ordinance. Mr. Fuller said rules have changed for so many things since 1971, such as for gas pumps, dredging requirements and storage
tanks. Ms. Hines said her position is that the Board intended for the clubhouse parking to comply with the parking formulas. She said it is not an all-or-nothing proposition that everything
has to be built to current standards. Ms. Hines continued by stating there is no maximum number of spaces in the Ordinance for a restaurant and there was no maximum number specified
on his site plan in the special use permit. She said the special use permit provides that, however many spaces you have, half of them need to longer (32 feet in length) and that when
the clubhouse is built, you need to add parking spaces for that clubhouse. Ms. Hines said the boat ramp is very close to the same place where the existing ramp is shown. She said the
sale of fuel was allowed under the original permit and they have evidence that it was done on the property. She said the State Division of Water Quality, New Hanover County Engineering
and other environmental agencies will address the stormwater system. Ms. Hines said the stormwater system is all underground and there will not be an impact on the neighborhood, and
that the storm water management system will handle the runoff created by the parking lot. Mr. Shanklin asked Ms. Hines how long she has been employed with the County. Ms. Hines said
25 years next month. Mr. Shanklin asked Ms. Hines how long she has been in the Inspections Department. Ms. Hines said 21 years. Mr. Shanklin asked Ms. Hines if she has had the occasion
to review and inspect sites and go on properties in those 21 years. Ms. Hines said yes. Mr. Shanklin asked Ms. Hines to estimate the number of plans she has reviewed in the past 21 years.
Ms. Hines said thousands.
14 Mr. Shanklin asked Ms. Hines if she is familiar with minor changes to special use permits and if she has had the occasion to implement Section 71-9 of the Ordinance. Ms. Hines said
yes to both questions.
special use permit for a marina. He asked Ms. Hines if that tract had a lot of minor changes. Ms. Hines answered yes but she did not know what the minor changes were for that special
use permit because they were approved before her; she did not approve any of those plan changes. Mr. Shanklin asked Ms. Hines when she approved the September changes to the 1971 special
use site plan, did she do that with the understanding that they were minor changes and not major changes. He also asked if Dexter Hayes approved the proposed the September 2005 plan.
Ms. Hines answered yes. She said Dexter Hayes had to approve the plan first. Mr. Shanklin asked Ms. Hines if the proposed plans approved by her and Dexter Hayes in September 2005 complies
with New Hanover County Zoning Ordinance, Section 71-9. Ms. Hines answered yes. Mr. Timothy Ward stated that he is the owner of Carolina Marina and he met with the homeowners three times
to explain what he was doing. Mr. Ward said the amount of impervious surface is reduced from the1971 plan and parking spaces for the clubhouse are set back over 100 feet from the bulkhead.
He said he has had a lot of changed plans because either staff or CAMA have requested those changes. He said even though the 1971 plan allowed paving to the property line, he agreed
to put a 25-foot buffer on the front and a 10-foot buffer on the north side. Mr. Ward said Jimmy Fentress of Stroud Engineers submitted a document to the Planning Board and County Commissioners
that certifies that the amount of imperious surface has been reduced. Mr. Ward said he does not know where the dredging will take place but it was approved on the 1971 plan. He said
there are 10 defined wet slips but none of the wet slips will be permanent. He said the plan is for this to be operated much like a dry boat storage facility where all the boats will
be out of the water, all the dockage will be used for temporary dockage, the other dockage is for fuel and no wet slip rental. Mr. Ward said the design of the dockage was predicated
by conferences with Doug Huggett, the Major CAMA Permit Coordinator in Morehead City, and the change from the September plan to the February plan was the result of a request by CAMA.
He said they have a stormwater approved plan for both State and County. He said when his father operated the marina he had a fuel pump on land, gas and diesel pumps from the dock and
there was a pump behind the bulkhead. Mr. Ward said the wave walls were designed in collaboration with CAMA to create a safe area for boats to navigate in and out of the channel and
they put all the boat parking at 32 feet in length, which was a change from the 1971 plan. He said this plan is better for the neighborhood because it uses modern technology for both
the fuel tanks system and storm water system. He said he incorporated the business in 2002 and has not been able to do anything because of the constant challenges to make the plan right
and hundreds of thousands of dollars have gone into this development. Mr. Raney asked Mr. Tim Ward where he got over 40,000 sq. ft of impervious surface off of the old plan. �
�dence at previous hearings and the previous impervious surface number was 49,000.
15 Mr. Raney said it does not take an engineer to look at this plan and to determine that it has nowhere near 49,000 square feet of impervious surface. Mr. Ward said Jimmy Fentress of
Stroud Engineers affixed his stamp to the document. Mr. Raney said Mr. Ward testified that the parking area was more than 100 feet from the bulkhead but the plan shows on the south side
of the property it is 30 feet from the parking. Mr. Ward responded that he said the clubhouse parking was set back more than 100 feet. Mr. Raney asked Mr. Ward if he tried to meet with
the neighbors before he got approval of the September 2005 plan. Mr. Ward said he thought it would be premature to meet with the neighbors before he got approval of the plan. Mr. Raney
(Summarization): Mr. Raney said there are three situations where the Superintendent of Inspections is directed that he/she shall not grant the proposed revision and the first one is
a change in the character of the development. Mr. Raney noted the following as a change in the character of the development: a) He said the residential area in the back is now a storm
water collection and waste disposal system for the increased improvements in the front of the property. b) The area of impervious surface is obviously increased from what it was in the
earlier plan. c) The parking in the impervious surface location is much closer to the water than in the original plan and the number of boat parking spaces is almost doubled from what
was approved in the original plan. Mr. Raney said the applicant is seeking to enlarge this to change the character significantly, to make this a large facility, and this should be overturned.
Mr. Lee called for any others to address the Board. Mr. Shanklin presented a copy of an order and forty-two pages of testimony as evidence. He said these are minor changes and does not
violate Section 71-9 of the Ordinance. Mr. Eckel asked Ms. Hines if the changes to the impervious were minor or major. Ms. Hines said the changes were minor; in many respects, it is
an improvement because they are now managing the stormwater run off and they were not before. She explained that impervious surfaces contribute to how much rainwater with pollutants
in it will run off the property and if that polluted rainwater is captured and contained, that is considered to be an improvement. Mr. Lee asked Ms. Hines how it is handled if you have
property in the County that is not zoned and is being used for a specific use and then the property is subsequently zoned. Ms. Hines said if there is an activity going on that would
not be permitted under the zoning after it takes affect, then the activity is classified a non-conforming use.
16 Mr. Lee asked if a special permit is needed to alter the use. Ms. Hines said a special use permit is not an option for every non-conforming use situation but it would be for a marina.
Mr. Fuller said in the special use permit it says: all sales and services connected with the operation of the club facility shall be incidental to the marina operation. He asked at what
point is it determined that 4,500 sq ft is what is needed to be incidental to the marina operation or surpasses that limitation of the special use permit. Ms. Hines said there has been
discussion centered on the actual operation of the clubhouse facility and the criterion for it to be incidental to the operation of the marina is based on membership. Mr. Fuller said
the plan shows they are contemplating 4,500 sq. ft. because they are saying 45 parking, 1 per 100 sq. ft. Mr. Fuller said he would like to understand how it was concluded that 4,500
sq. ft. is not a major change. Ms. Hines said it observes the same footprint in the same place on the lot. Mr. Fuller asked Ms. Hines if that means there would be limits on whatever
they do in that space to operations incidental to the marina. Ms. Hines said it has to do with the operating plan for that building. Ms. Hines said she wanted to address the comment
made by Mr. Raney that this was a change in the character of the development. She said that is something Planning and Inspection staff have been sensitive to throughout this process.
Ms. Hines said the character of the development has not changed because you are still dealing with a boat ramp with boats being delivered to and retrieved from the water on trailers,
a fixed pier with fuel sales, and a clubhouse. She said you do not have dry stack storage, or forklifts delivering boats to and from the water. Ms. Hines asked the Board that if they
are inclined to disagree with staff and uphold the appellant, to please be specific as to what elements on which they disagree with staff. She said even if the Board disagrees with staff
on some or all issues, issues, that would not mean the owners lose the right to operate a marina and they will likely come back in the future with another plan revision. Board Deliberation
Mr. Eckel said he does not see the change. Mr. Lee said staff has been overly conservative in what is minor and major given the actual approval that was given. Mr. Lee said in the minutes
of the Planning Commission, approval was given in 1971 and the Planning Commission said Mr. Ward was operating a marina before the area was zoned and when it was zoned, it became a non-conforming
use. He said Mr. Ward wanted to add some structures so some proposals were added to the plan: a clubhouse, gas pumps, boat shed, parking and a sign. Mr. Lee said the special use permit
has seven conditions as approved and the code only addresses changes to structures. He said the approval was very broad and not tied specifically to the sketch. Mr. Jones said all the
dredging and filling had been done and for this to work, additional dredging would have to happen for this to operate.
17 Mr. Lee said at the time the special use permit was granted, those were the only conditions they had for this special use and the permit was an application to expand the marina. He
said the Planning Commission talked about the proposed structures so they would not have to come back to the Commission every time. Mr. Lee said he does not see a major change because
if they do not have the storm water infiltration system, when they wash the boats it would not have anywhere to go but out into the water. Mr. Jones said he cannot see how this could
be a minor change. Mr. Fuller said the addition of detail does not mean they have changed the character of the development. He said staff has to very careful when they make administrative
changes and those incremental changes are far different from what they started out with. This is why people become upset, when they see a new plan that is different from what they have
previously seen. Mr. Fuller also said it was the right decision to allow this appeal because if staff is allowed to make administrative changes, the Board needs to be liberal in their
interpretation of when you can appeal something, because it is not clear. He said Ms. Hines said the full story is not on the plan. Mr. Fuller said until they have the full story they
should expect people are going to be concerned and want to appeal and question it, but he agrees that it is not a major change at this point. Mr. Weldon said he does not see this as
major changes even though there are quit a few visual changes and also there will be additional changes in the future where the appellants will have the opportunity to appeal. Board
Decision: 1. site
plan submitted for a commercial marina at 1512 Burnett Road; appeal relates to reinstatement of plan approved September 29, 2005. Property is zoned R-15. Case No. ZBA-790 2. On a motion
by Mr. Fuller and seconded by Mr. Weldon the Board voted to DENY the appeal and UPHOLD the ruling of Zoning staff. (1 nay, Mr. Jones) THE FIFTH CASE: Peter L. Wilson, 7612 Mason Landing
Road, is requesting a variance from the setback requirements of New Hanover County Zoning Ordinance Section 51-2 to construct a new single-family residence. Property is zoned R-20S.
Case No. ZBA-775 (Continued from the July 25, 2006 meeting) Mr. Lee called for those to speak in favor of or in opposition to granting the variance request to come forward to be sworn
or affirmed for testimony. Mr. Lee swore in Mr. Peter L. Wilson. Mr. Lee called Ms. Shawn Ralston for an overview of the case. Ms. Ralston stated that Mr. and Mrs. Wilson are requesting
a variance from the setback requirements of Zoning Ordinance, Section 51-2 in order to construct a new single-family residence. She said the property is zoned R-20S which requires a
front setback of 30 feet, side
18 setback of 15 feet and rear setback of 25 feet. Ms. Ralston said the applicants have stated that they have a triangular shaped lot with a large live oak tree in the middle of the
property that they want to save. Ms. Ralston said the site plan submitted by the applicants, show where they would like to construct the house if they could apply the setbacks of 4 ft
in the rear, 14.3 ft on the side and the other setback would be in compliance. Mr. Wilson stated there is a single residence on the property now but it needs to be torn down in order
for him to have his new home constructed. He said several neighbors came to him and asked if he could save the 200-year-old live oak tree on the property and that is the reason he is
requesting the variance. Mr. Eckel asked who the closest neighbor is to him. Mr. Wilson said that would be Canady Marine, and they asked for the tree to be saved. Mr. Lee called for
those in opposition to the variance request to come forward for testimony. There was no one present to speak speak in opposition to the variance request. Board Deliberation Mr. Fuller
asked if they would need to specify that the variance is approved as long as the tree is saved. Mr. Jones said the tree could die from damage to the root during construction or even
after the house is built. Mr. Moore said the Board could say that all reasonable efforts be made to save the tree. Ms. Hines said the Zoning Ordinance exempts single-family lots of this
size from the tree retention requirements but it would call any tree with a trunk diameter of 24 inches or more a significant tree. She said there have been variances granted in the
past to save significant trees but nobody can guarantee the tree would be saved. Board Decision 1. Peter L. Wilson, 7612 Mason Landing Road, is requesting a variance from the setback
requirements of New Hanover County Zoning Ordinance Section 51-2 to construct a new single-family residence. Property is zoned R-20S. Case No. ZBA-775 (Continued from the July 25, 2006
meeting) 2. On a motion by Mr. Fuller and seconded by Mr. Eckel the board voted unanimously to GRANT the variance request. THE SIXTH CASE: William F. Canady, 2039 Trinity Avenue, is
requesting an extension of the variance granted to him on June 22, 2004 from the minimum side setback requirement of New Hanover County Zoning Ordinance, Section 51-2. The 2004 variance
granted a 10-foot side setback in lieu of 15-foot required setback; additional requests in 2004 were denied. Property is zoned R-20S. Case No. ZBA-785 (Continued from July 25, 2006 meeting)
19 Mr. Lee called for those to speak in favor of or against the board granting the variance request to come forward to be sworn or affirmed. Mr. Lee swore in: Mr. Bill Raney, Mr. Kenneth
Shanklin, Mr. Matthew Nichols, Mr. Charlie Howell, Mr. Robert Don Foster, and Mr. William F. Canady. Mr. Lee called Ms. Hines to give an overview of the case. Ms. Hines stated Mr. Canady
owns the property at 2039 Trinity Avenue and it is zoned R-20S. She said he was granted a variance in June 22, 2004 to build a house on that lot. She said the lot has a driveway area
on Tract A and an area to the north and at the bottom of a hill where the ramp goes down to the water. She said the variance granted two years ago allowed a 10-foot setback on the �
�expires
in two years if a building permit is not issued, and the applicant came in before the date of expiration of the variance and applied to have the variance extended. Ms. Hines said the
variance was granted for a side setback of 10 feet instead of the required 15 feet from the landward property line that abuts residential property at the top of the hill. She said the
water-related setback is determined by CAMA and there is not an issue on the remaining side on tract A because it is an easement crossing the lot. She said the front lot line is on Trinity
Avenue and the original variance granted a 10-foot side setback toward Lot 3. Ms. Hines said the variance requested for a 42 ft. building height was turned down and now with the new
flood maps, the property is in a VE flood zone and the County allows a 44 ft building height. She said conditions attached to granting the
the lot at issue was part of a legal subdivision
and the applicant owned the loof that has been resolved this year by the Planning Director. Mr. Eckel asked if this is a new variance
or are they reviewing the merits of the old variance. Mr. Shanklin said it is an extension of the old variance. Mr. Moore said a variance expires two years from the date that it was
approved. He said there is a doctrine in the law that says if an identical case becomes before the identical body, there is some expectation of consistency. Mr. Moore said part of the
analogy should be if there is anything Mr. Jones asked when he
comes back in, will he have to fill out a form to extend or an entire new application. Mr. Shanklin said there is not an extension form, so he took what he had before and used that.
Mr. Matthew Nichols stated he is representing the property owner. He said he was not involved in the original variance request and when he got involved, he questioned if the applicant
actually needs an extension of the variance. Mr. Nichols stated the variance was granted in June 22, 2004 and there is no expiration on the variance. He also said there is no provision
in the County Zoning Ordinance for the automatic expiration of variances. Mr. Nichols said it is not a special use permit or a permit and it was determined by the County Zoning Board
of Adjustment that this particular property because of the findings of the variance, is proper. He said the enabling statute that grants this Board its power speaks in term of any conditions
reads: Appropriate conditions which must be reasonably related to the condition or circumstance gives rise to the need for a variance by be imposed on any approval issue by the Board.
Mr. Nichols said this Board could have placed that
20 condition on the variance in June 2004. He referred to Item III of the Rules
and Procedures of the New Hanover County Zoning Board of Adjustment and read: Expiration of permits Unless otherwise specified, any order or decision of the Board granting a variance
or a special use permit shall expire if a building permit or certificate of occupancy for such use is not obtained by the applicant within two (2) years from the date of the decision.
Mr. Nichols said this is not an Ordinance adopted by the County Commissioners and to have a blanket attachment to all variances, not specifically tailored to the reasons the variance
was granted, is not what the statute requires of this Board. He said they had a variance with no expiration on it and they would like to proceed with that variance. Mr. Fuller asked
Mr. Nichols regarding a letter from Ann Hines to Mr. Shanklin dated August 4th officially advising that the New Hanover County Zoning Board granted in part and denied in part
red to the second paragraph that states: A building permit in reliance on this variance must be obtained with two (2) years of the date the variance
was granted. Mr. Fuller asked Mr. Nichols if this fills the requirement that it is a part of the condition of a variance. Mr. Nichols said no because it was not a finding or requirement
of this Board. Mr. Fuller said it is part of the Rules of Procedure adopted by this Board, and Ann Hines was notifying this specific case that it is one of the conditions, which is applied
to every variance that the Board grants. Mr. Nichols said the only power to zone in the County is by the Board of County Commissioners. He said if this rule was adopted by the County
Commissioners, he would agree but this Board cannot pass a zoning regulation applicable to all variances. Mr. Fuller said if the Board has to tailor variances to the specifics of the
property, part of the specificity of the property is not only spatial, and since this was originally granted, there has been a change and it is now in a VE flood zone. He said something
that was contemplated in the original �
�circumstances. Mr. Nichols referred to Section 120-2 of New Hanover County Zoning Ordinance and read: The Board shall draw up and adopt the rules
of procedure under which it will operate. He also referred to Section 122-1, and read: In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity
with this Ordinance. Mr. Nichols said he does not believe there is anything currently in place in the Ordinance that speaks in terms of expiration of the variance. He said this is not
a special use permit that has vesting rights under a special use permit. He said that is a different statute where you can get a special use permit and relying on that you have to make
expenditures, get plans finalized, and therefore you are given two years to get those things done and proceed with the project. Mr. Nichols said a variance is permission by this Board
and the purpose of the variances are to keep the County out of lawsuits.
legal. Mr. Moore also said there is a statutory vesting for two years on any site-specific plan and in addition
to the rule being here, that meshes with the statutory language because it says that any site-specific plan is vested for 2 years, but no more than 2 years
this satisfies that, because you have specific setback requirements and the only other basis for having something to be vested is through common
law vesting and that requires activity on site, which has not happe
ned. 21 Mr. Lee explained that the motion they are making is that this is not necessary and the hearing is moot and the alternative is that they will proceed with a renewal or variance
request. He said the Board will make a decision after hearing from Mr. Raney. Mr. Raney stated it is their contention that the rule is the rule and you need to follow the rules and procedures.
He said the only place stating your timeframe for appealing an action by a Zoning Official is in the rules, not a statute or ordinan�
�possibility that something might have changed and the Board needs to hear the evidence again to see if that is the case. Board Decision 1. On a motion by Mr.
Eckel and seconded by Mr. Jones, the Board voted unanimously to DENY the motion and to hear the case. Mr. Lee called the applicant for testimony. Mr. Shanklin presented additional evidence
to the Board that he said were: 1.
e aspect of the variance request. 2. A series of exhibits from the hearing in 2004 which consisted of: a) A survey of property. b) A CAMA Handbook excerpt. c) Photographs of the subject
property. d) Topographic map survey dated May 1, 2003. e) A survey dated January 30, 2004. f) Judgment for the property. g) A tax map. h) A dirt road near water. i) Portions of the New
Hanover County Tax Map. j) Subdivision recorded in Map Book 6, Page 4. k) Zoning map. l) Deed from Joseph White to William Canady. m) Tax information printout sheet. n) Exhibit that
shows the time lines. Mr. Shanklin called Mr. Canady for testimony. He asked him to state his name and address. Mr. Canady said his name is William F. Canady and his address currently
is 6383 Oleander Drive. Mr. Shanklin asked Mr. Canady if he owns the property at 2039 Trinity Avenue and Mr. Canady answered yes. Mr. Shanklin showed Mr. Canady Canady photographs and
asked him if they were of his property and Mr. Canady answered yes. Mr. Shanklin asked Mr. Canady if the retaining wall had been moved and why was it removed.
22 Mr. Canady said yes it was removed and the Division of Coastal Management had him to remove the retaining wall. Mr. Shanklin asked Mr. Canady why he is asking for this variance request.
Mr. Canady said he wants to build a house on this lot and has been trying for about 6 years. Mr. Shanklin asked Mr. Canady if he has utilities on the property and he said yes. Mr. Shanklin
asked Mr. Canady who is his contactor and Mr. Canady said Charlie Howell. Mr. Shanklin asked Mr. Canady when he retained Mr. Howell and he said 2 years ago after he received the variance
in 2004. Mr. Shanklin asked Mr. Canady why it is taking so long to get a building permit. Mr. Canady said he was told that no more houses could go there without a well. Mr. Lee asked
Mr. Raney if he had any questions. Mr. Raney asked Mr. Canady if he was aware of the size of the area on which he wanted to build. He asked him if he was aware that it is only about
50 feet from the water to the property line. Mr. Canady said since he and his brothers have owned the property, they have lost over 7 ft. but it is still over 50 feet. Mr. Shanklin called
Mr. Charlie Howell for testimony. He asked him to state his name and address. Mr. Charles Howell gave his name and his address as 246 Lasalle Street. Mr. Shanklin asked his profession
and Mr. Howell said he is a building contractor and home designer. Mr. Shanklin asked Mr. Howell if he knows Mr. William Canady. Mr. Howell said yes and he has known Mr. Canady for about
30 years. Mr. Shanklin asked Mr. Howell if Mr. Canady asked him to design a home and obtain a building permit for the property in question. Mr. Howell said yes he asked him about 2 years
ago. Mr. Shanklin asked Mr. Howell what the first thing he did. Mr. Howell said because the property is on the water he needed a CAMA permit. He said he was told he needed a set of house
plans, a well permit and a letter from County Engineering for the sewer. He said February 2005 he applied for the CAMA permit. Mr. Shanklin asked hi if he had a well permit and when
he applied for it. Mr. Howell said yes, they have a well permit and they applied sometime in 2004.
23 Mr. Shanklin asked how long it took to receive the well permit. Mr. Howell said it took them about a month to get the well permit. Mr. Shanklin referred to the exhibit marked Canady
Permit Timeline Building. He asked Mr. Howell if he prepared this document from his personal notes. Mr. Howell said yes. He said he started the document at the point where they applied
for the CAMA permit. Mr. Shanklin asked Mr. Howell when he applied for the building permit. Mr. Howell said you cannot apply for a building permit until you get the CAMA permit and he
could not get the CAMA permit because the sewer was not available. Mr. Howell said after he was allowed to apply for a building permit, he went through a review on July 6, 2005 and subsequently
had to provide more information for the CAMA permit and afterwards they asked for a new survey. Mr. Shanklin asked Mr. Howell if he has a building permit today and Mr. Howell said no
because �
�the reason they are here today. Mr. Shanklin asked Mr. Howell to explain the reference to illegal subdivision in his notes from March 13, 2006. Mr. Howell said the neighbors thought
it was an illegal division of land and it may have been illegal about 40 years ago. Mr. Shanklin asked Mr. Howell if the physical characteristics of the property changed since he has
been involved with the project. Mr. Howell said none other than Mr. Canady cleaning it. Mr. Shanklin asked Mr. Howell the first time he inspected the property. Mr. Howell said about
2 years ago. Mr. Shanklin presented the following issues: 1.
can that alleged right of view be used to deny a permit? Mr. Shanklin said the answer is no. 2. Is the Canady property a legal subdivision and
can the County deny Mr. Canady a building permit? He said the answer to each is no. 3. Can William F. Canady be denied a building or CAMA permit based on the right of a property owner
to have access to Tract A? He said the answer to that is no. 4. What is the legal significance of the provision to NGCS Section 153A-334? He said the answer to that is none. Mr. Shanklin
said there have been a lot of changes to subdivisions when the General Assembly changed some zoning laws last year. Mr. Shanklin referenced to two cases that came from the Court of Appeals
earlier this year: a Robbins case and Woodruff case. He said both cases held to the proposition that their permits are analyzed based on the law in effect at that time. He said the final
memorandum of law involves points raised by Mr. Raney at the last hearing, as to whether this
24 property is a legal subdivision, do they own the land, and issues with CAMA. Mr. Shanklin said their position is since the Board granted the variance the last time and decided against
those points and they did not appeal it, it is binding and any objection or proposed objection predicated upon illegal subdivision or who owns the property is not germane at this point.
Mr. Shanklin said they are asking the Board to grant the variance in the same manner as before with the same conditions. Mr. Lee asked if all the facts from the 2004 variance are the
same except for the height difference. Mr. Shanklin said yes everything is the same and the height variance was not granted so they would have to go by what the zoning code requires
for that issue. Mr. Lee called Mr. Raney to speak. Mr. Raney stated he agrees that they do not need to re-address the earlier hearing because there has not been a lot of change, but
there has been greater knowledge on some relevant facts that existed before, relating to a condition proposed by this Board in its earlier decision. He said the condition was whether
this is a legal subdivision or not. He said this issue came to light at the last hearing and required a great deal of research to try to determine if this was a legitimate issue and
to get the Planning Department to make a ruling on that issue. Mr. Raney referred to a letter he submitted to the Planning Department (Exhibit 5, letter to Dexter Hayes). He said that
letter outlines relevant information in determining whether this is a legal subdivision. Mr. Raney said the relevant point to remember is the area where they want to build on was never
designed to be a residential lot. He said this is a small piece of property that exists between Tract A and the water, between Lot 3 and the water and the small area adjacent to the
water. He said the area adjacent to Lot 3 is the property owned by his client, Mr. Foster. Mr. Raney said that small remnant of land is what was leftover after all the lots were sold
and was conveyed along with Tract A as a boat landing area for the
and he combined the remnant and Tract A to try to create a large enough area in square footage to qualify as a building
site. He said in his letter to Dexter Hayes, the relevant time in determining whether a proper subdivision resulted in the creation of this property is 1965, when the developer of the
property conveyed a parcel of land to Mr. Sammons and what was left over was this 50 ft x 100 ft remnant area along the waterfront. Mr. Raney said even if the lot is combined with Tract
A, it still does not meet the standards for a subdivision. Mr. Raney referred to Exhibit 8. He said it shows the high water line flagged by Southern Environmental Group and approved
by Robb Mairs, Division of Coastal Management. He said that line proceeds inland of the lot lines and stops because it appears they were trying to use that line to establish a 20 ft
distance from the high water mark in order to get a CAMA permit. Mr. Raney said if that line were extended, it would show the actual square footage of the property on which they are
trying to build the house. Mr. Raney said the last time this issue was raised, the Board opposed a condition on granting the variance subject to the determination that this was created
by a legal subdivision, and their contention is that it was created by an illegal subdivision and should not be granted a variance. He said there is not a hardship because Mr. Canady
paid very little for the property, he knew what the property looked and he knew what the constraints of the property would be when he acquired it in 1995. Mr. Shanklin asked Mr. Raney
if he received his law license in 1973 and Mr. Raney answered yes. Mr. Shanklin asked if that was subsequent to the division of this property and Mr. Raney said that is correct. Mr.
Shanklin asked Mr. Raney if the information he received from questioning and interviewing individuals about this property is conjecture and Mr. Raney said that is correct.
25 Mr. Raney said that conjecture is based on the record of the subdivision map and reasonable interest to be drawn from the fact that the remnant parcel was never shown on the subdivision
map as a lot to be developed. Mr. Lee called Ms. Hines to speak. Ms. Hines said they never had an accurate depiction of this lot for purposes of lot area, the location of the mean high
water line and the location of the 404 Wetlands line. She said one was submitted with the original CAMA permit application but Coastal Management staff and US Army Corps of Engineers
staff went to the property, did an alignment and that was not surveyed in and the site plan was not corrected. Ms. Hines referred to Exhibit 5 where it shows Zoning asked for a new survey
showing high water lines and 404 Coastal Wetlands. She said the survey completed in March still does not show everything needed. Ms. Hines addressed a statement made that as soon as
this variance is resolved, they can get the CAMA permit and everything is done. She said that is not true. Ms. Hines referred to Foster Exhibit 8, which is the March 2006 survey and
shows a line labeled as high waterline. She said Coastal Management said they have seen this plan and it is not sufficient and they recently met with Mr. Shanklin to let him know that
information. Ms. Hines said on March 13 the issue was raised because a neighbor objected, which caused them to review the history of the earlier variance and they found that the subdivision
compliance was one of those conditions. She said a determination was made by Dexter Hayes in 2004 and no one challenged it until 2006. Mr. Lee asked if a determination had been made
whether it is a legal subdivision. Ms. Hines said the determination has now been made that it is not an illegal subdivision, based on having a minimum lot area of 15,000 sq ft in the
two combined tracts. Mr. Eckel asked if it is an illegal subdivision, would they be allowed to get a building permit? Ms. Hines said it raises a question for issuance of a CAMA permit
if an illegal illegal subdivision is not compliant with local regulations, but she does not know the answer about a building permit because that would involve requirements in the Building
Code and not the Zoning Ordinance. Board Decision 1. William F. Canady, 2039 Trinity Avenue, is requesting an extension of the variance granted to him on June 22, 2004 from the minimum
side setback requirement of New Hanover County Zoning Ordinance, Section 51-2. The 2004 variance granted a 10-foot side setback in lieu of 15-foot required setback; additional requests
in 2004 were denied. Property is zoned R-20S. Case No. ZBA-785 (Continued from July 25, 2006 meeting) 2. On a motion by Mr. Jones and seconded by Mr. Eckel, the Board voted to GRANT
the extension based on the original findings of fact to include the Order issued on June 22, 2004 with all the conditions for a total of 24 months from this date. All ayes.
26 THE SEVENTH CASE: Violet P. Ward and David Ward have appealed revisions made to Special Use Permit #13 for a commercial marina at 1512 Burnett Road; appeal relates to plan approved
February 14, 2006. Property is zoned R-15. Case No. ZBA-774 (Continued from the July 25, 2006 meeting) Mr. Lee called for those to speak in favor of or against the board granting the
appeal to come forward to be sworn or affirmed. Mr. Lee swore in Mr. David Ward, Mr. Tim Ward, Mr. Kenneth Shanklin, and Mr. William Raney. Mr. Lee called Ms. Hines for an overview of
the case. Ms. Hines stated Violet and David Ward have appealed the now-withdrawn plans for the commercial marina approved on February 14, 2006, and an amended and corrected plan in April
2006, approved on the administrative level with minor changes of the special use permit by Planning Director Dexter Hayes and herself. She said the difference in this plan from the previous
one relates to the dock structure. Mr. Lee asked if this appeal had been withdrawn. Mr. Raney said he would need another 5-minute recess to review the letter of request that initiated
this proceeding with his client. Mr. Lee called a 5-minute recess. Following recess, Mr. Raney referred back to the memorandum of law he submitted for case No. ZBA-790. He said this
case originated as a result of a request in a letter dated March 20, 2006 (Exhibit F), which is a letter from David and Violet Ward to Ann Hines raising questions about plans approved
by her as minor revisions. He said this letter raises a question of interpretation of the Zoning Ordinance by Ann Hines concerning the application of the Conservation Overlay
(Exhibit F), which
addresses the off-street parking. Mr. Raney read: Special Use Permit #13 states that when proposed clubhouse is constructed additional off-street parking be provided in accordance with
the zoning ordinance. This has been totally ignored on the revised site plan approved February 14, 2006. The new parking lot shown for the club house is drawn mostly within the 100 ft.
COD set back area, and the boat on trailer parking lots is also drawn mostly within the100 ft COD set back area. Mr. Lee said the appeal is revisions made to the February plan and he
asked Mr. Raney if he is concerned about preserving an issue to appeal to. Mr. Raney said this issue was raised in connection with the February plan but this part was also a part of
the September plan and was responded to by the Code Enforcement Officer, which they contend this response gives rise to a hearing. He said this is the current active plan approved with
regard to those issued raised in the first appeal but there is another issue raised in this appeal which is a result of the request of March 20, the response of March 31 and then the
appeal on April 11. He We have reviewed reviewed your letter . . . The administrative review and approval by County Planning
and Inspections staff of minor changes speak for themselves, and after the rendering of that approval, allegations of error would have needed to be made in the form of an appeal, rather
than to the officials who made that decision. Mr. Raney said she says in that
27 letter that these questions thato
answer. Mr. Raney said this is not a specific response to the issue of the Conservation Overlay District that Mr. Ward raised in the March 20 letter. He said the Wards then appealed
the determination and that raises a legitimate question for determination. Mr. Raney said they question whether the Code enforcement Officer correctly interpreted the statute to say
that the Conservation Overlay District does not apply to the building of a parking area that was never on the original plan within that Conservation Overlay District. He said they contend
that the Conservation Overlay District rule should apply to something that is proposed and was clearly not on the original plan. Ms. Hines asked Mr. Raney to clarify how he reached that
argument from the Notice of Appeal filed by his client. Ms. Hines said it appears he is taking issue with the letter rather than with the plan approval. Mr. Moore said it is described
in the letter as the appeal of the February plan, which is now withdrawn. �
�the 4th of April which (Denied), (Granted), (Ordered that) The Planning Department and Zoning Department are not
correct according to the Zoning Ordinance to make revisions to Special Use
violated the Zoning Ordinance by making several revisions to the site plan approved in 1971 for �
�elaborates on that. Mr. Lee asked Mr.
Raney if his concern now is that the determination has been made and they want to appeal it now or waive their right. Mr. Raney said there are several concerns and one is to make sure
that all the issues that they are raising are determined in a proper way and the other issue is whether the determination that the Conservation Overlay District, which is somewhat incorporated
in that prior approval, was an appropriate determination. Mr. Raney said they would like the opportunity to have a ruling on whether it is appropriate to allow new parking in the Conservation
Overlay District. Ms. Hines said the Board discussed and accepted that in the last case. Mr. Raney asked if the Board would concur that the issue is one that could appropriately be raised
by raising the issue with the Code Enforcement Officer, and whatever response they get from that, they have the right to appeal. Mr. Eckel said if you are going to continue to change
the appeal, this could go on forever. He said the plan is withdrawn. Ms. Ralston commented that the site plans are identical. Mr. David Ward said their position is that zoning staff
made an error in violating that County Zoning Ordinance. Mr. Shanklin said it is their position that there is no case to be heard because the Zoning Board of Adjustment cannot give an
advisory opinion. He said any issue involving that September 2005 map has already been voted on.
28 Mr. Raney said the role of the Zoning Board of Adjustment is to make determinations as to whether the County officials correctly interpreted the Zoning Ordinance. He said they are
asking the Board to make a determination as to whether she accurately interpreted the application of the Conversation Overlay District involving the parking area. Mr. Eckel asked if
that relates to the September 29 plan. Mr. Raney said that was the first time it showed up but it was also in the February and April plan. Mr. Fuller said if the Board allows the property
owners to submit and un-submit plans and then submit different plans and take those back, then other people involved have to be given similar opportunities to respond. Mr. Moore said
there may be some confusion on what you have before you. He said there are variances and appeals and as Ms. Hines stated in her letter, that this was an appeal from that February plan
amended in April. He said with that plan gone, it is off the table. Mr. Moore said if it really was an an appeal of the determination that the Conservation Overlay District does not
apply, then arguably they would have a more reasonable case to be heard. Mr. Jones said when the Board voted earlier, the entire plan was voted on. He said they cannot go back and contest
the individual items. Board Decision: 1. Violet P. Ward and David Ward have appealed revisions made to Special Use Permit #13 for a commercial marina at 1512 Burnett Road; appeal relates
to plan approved February 14, 2006. Property is zoned R-15. Case No. ZBA-774 (Continued from the July 25, 2006 meeting) 2. On a motion by Mr. Lee and seconded by Mr. Fuller, the Board
voted to DENY the appeal as it is not properly before the Board because the February plan is no longer an approved plan. All ayes. There being no further business before the Board, it
was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Chairman