zba-10-06
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 October 24, 2006. Members Present Members Absent Tim Fuller Mike Furman Peter DeVita Michael V. Lee Michael S. Jones Brian Eckel
Carmen Gintoli Dan Weldon Ex Officio Members Present Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary Mr. Holt Moore addressed the Board. He informed them
that both the Chairman and the Vice-Chairman were absent tonight and the Board would need to make a motion to select one of the other members to act as chairman. On a motion by Mr. Jones
and seconded by Mr. Gintoli, the Board voted unanimously for Mr. Peter DeVita to chair the proceedings. The meeting was called to order by Mr. DeVita. Mr. DeVita 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. Mr. DeVita also explained that the Board
tonight would consist of four members instead of five and a unanimous vote would be needed to approve a variance request. Mr. DeVita said the first case, Carolina Marina and Yacht Club,
LLC has requested a continuance to the November 28, 2006 meeting. The appellants in the other two cases preferred to have their hearing tonight. Board Decision: 1. Carolina Marina &
Yacht Club, LLC, 1512 Burnett Road has appealed the determination of the Zoning Official regarding the use of a forklift at a commercial marina. Property is zoned R-15. Case No. ZBA-793
2. On a motion by Mr. Gintoli and seconded by Mr. Jones, the Board voted to continue the case to the November 28, 2006 meeting.
2 THE SECOND CASE: JJ & K Properties, Inc. 5044 Carolina Beach Road, is requesting a modification to the site plan for Case No. ZBA-771, granted at the April 25, 2006 meeting for a variance
from the buffer requirements of New Hanover County Zoning Ordinance, Section 67-4 between this commercial project and the abutting residential area. Property is zoned B-2. Case No. ZBA-794
Mr. DeVita called for those to speak in this case to come forward to be sworn or affirmed. He swore: Ms. Ann S. Hines, County staff Ms. Cindee Wolf, Withers and Ravenel; representing
the appellant Ms. Hines gave the following overview of the case: Ms. Hines stated that
boats. She said the nature of the variance was to not plant a buffer on the rear side of the property which abutted a large wooded wetland area and
on the side abutting residential, the variance was granted to flip-flop the buffer plantings and fence in order for the privacy fence to be placed at the �
�ence. Ms. Hines said the applicant is now seeking a building permit to add a building on this
property for indoor storage, which changed the circumstances on the property and staff felt they needed to come back to the Board for approval. Mr. DeVita called those to speak on granting
the variance request to come forward for testimony. Ms. Cindee Wolf stated the applicant is looking to reinforce the previous Board approval of the buffer yards based upon the addition
of a building along the back instead of open storage. She said an existing thick wooded wetland area and a steep slope reinforced by a retaining wall are located behind the area where
the building is being constructed. She said the previously approved outdoor storage was based on the fact tha
feet to 14 feet and any items that could have been stored on this property, along with the parking spaces are of no lesser height than what this building would be. Ms. Wolf said there
would be no more visibility of this building because of the thick wood area and none of the other circumstances have changed. She said the building is a permitted use and they need to
know if they would need to include supplementary buffer plants on their side of the property boundary. Mr. Jones asked if the fence is the same. Ms. Wolf said the fence is in place and
there is no change on that side. Mr. Fuller asked what kind of buffer would be in place to prevent someone from cutting down the pine trees. Ms. Wolf said that is a certified wetland
area and those trees could not be removed. She also said that tract is over two
acres and not residentially owned. Mr. DeVita asked how far back is that wetland area and Ms. Wolf said it is several hundred feet.
3 Mr. Gintoli asked why they would need a variance if they are not requesting any more than what was previously approved and are only adding a building. Ms. Wolf said even though it
is a permitted use, staff felt the change of hboats to having a building constituted enough variation to be reviewed by this Board. Mr.
DeVita called for those to speak in opposition to granting the variance request to come forward for testimony There was no one present to speak in opposition to granting the variance
request. Mr. Jones asked if the building was going to be kept at 14 feet. Ms. Wolf said the eave height is 9 feet with a 2-12 roof pitch and 70 ft wide. She said the absolute peak is
about 14 feet but mean roof pitch is no more than 12 feet. Mr. Jones asked if that needs to be noted in case someone wanted to come back in the future and construct a second building.
Ms. Hines said if this building would be destroyed and they wanted to rebuild it, Zoning would want it to be be the same height or lower. Mr. Moore said if a second story was added,
it would automatically come back to the Board. Ms. Hines said it would also involve building setbacks issues. Board Decision 1. JJ & K Properties, Inc. 5044 Carolina Beach Road, is requesting
a modification to the site plan for Case No. ZBA-771, granted at the April 25, 2006 meeting for a variance from the buffer requirements of New Hanover County Zoning Ordinance, Section
67-4 between this commercial project and the abutting residential area. Property is zoned B-2. Case No. ZBA-794 2. On a motion by Mr. Gintoli and seconded by Mr. Jones the Board voted
to GRANT the variance request as submitted covering the 14 foot height. All ayes. THE THIRD CASE: Slagle Holdings, LLC, 7032 Market Street, is requesting a modification to the site plan
for Case No. ZBA-762 granted at the November 29, 2005 meeting for a variance from the side building setback and planted buffer requirements of New Hanover County Zoning Ordinance Section
69.11 and 67-4 for a restaurant abutting property zoned R-15. Property is zoned B-2. Case No. 795 Mr. DeVita called all those to speak in this case to come forward to be sworn or affirmed.
He swore in: Mr. Brian Slagle, owner Mr. Jeffrey Workman, grounds maintenance foreman at Landfall Ms. Gwen Phillips, adjacent property owner
4 Ms. Hines gave an overview of the case. She stated this project was granted a variance in 2005 involving building setback and buffer requirements. Ms. Hines said the buffer yard approval
involved an 8-foot fence with vegetation on each side. Ms. Hines informed the Board that the project was inspected and released earlier today. She said they wanted this to come back
to the Board because the applicant is proposing an outdoor seating area and raised decks around several outstanding live oak trees. She said there is residentially zoned property to
the north and there is some concern because several elements were presented which was a departure from what was introduced before, in particular an outdoor stage which implied outside
musical performances. Ms. Hines said the proposed deck area was shown to be built over the root zone around the trees within the drip line area and the Zoning landscaping provisions
require that the root zone should be kept clear of structures and impacts to the roots. Ms. Hines said that would involve fine tuning of the actual construction to show that these decks
would not have a damaging affect on the trees. Mr. DeVita asked if there is an arborist or someone qualified to speak because he does not feel that this Board is qualified to make decisions
as to whether the trees would be damaged. Mr. Fuller asked why the applicant is appealing to the Board if they have not been denied or even applied for a permit. Mr. DeVita said it is
a modification of the original site plan to include decking and a stage. Ms. Hines said it has to do with tree root intrusion, which would be a variance request and the introduction
of the outdoor activity that was not shown on the original plan, which is a modification of the original project that was granted the variance. Ms Hines said the other issue to address
is parking adequacy; to make sure there is enough parking provided for the extra customer seating outside. Mr. DeVita called Ms. Wolf for testimony. Ms. Wolf stated the previously approved
variances for the buffer yard building setback, are all in place and they are also anxious to preserve those trees. Ms. Wolf pointed out on photos she submitted, the rear of the building
showing the fence, and she said the other photos show the three trees, which are part of the site plan. She said they are proposing to put decking around the base of the trees for a
waiting area for those customers waiting to get in the restaurant. Ms. Wolf said that does not expand the parking requirement because the customers would not be eating outside while
they wait. Ms. Hines said that is not the way staff views that. She said if it is a waiting area with seating, parking has to be provided. She said it does impose a parking based on
the number of seats. Ms. Wolf said they could not meet a greater parking requirement. Ms. Wolf explained that this was a stepped approach to where the decking around the trees was located
but they have since eliminated the swing and the stage was incorrectly labeled on the plan. She said they want to build a deck around the trees and they could revise the plan to have
5 or more feet from the trees instead of 3 feet. She said everything would be hand-dug as far as the posts for the support of the deck with a 12 inch minimum separation between the ground
and the bottom of the deck to provide root aeration and circulation. Mr. Jones said he would prefer that the Board not get into too much discussion so that they can wait to see exactly
what is being brought before the Board.
5 Ms. Wolf said that is their plan. She said the chairs and swing have been removed and the stage is a landing. Mr. Fuller said the detail shows three feet from the tree and the one
foot elevation is not shown. Mr. Fuller suggested they work with staff to make their plan more compliant. Mr. DeVita said he is concerned about the root system of the trees and he suggested
they work with an arborist. Ms. Wolf questioned whether they would need to come back to the Board. She said Ms. Hines has technical concerns dealing with the health and preservation
of the trees but this does not have any bearing on the buffer yard that was previously approved. Mr. Jones said he agrees but they need to be in sync with what is presented to the Board
and the way things are labeled is in direct opposition to what is on the plan. Ms. Wolf said this is a raised deck area and she asked if the Board needs to review it as a modification
of the previous variance. Ms. Hines said it is a significant change in the use of the property and and they would need to come to the Board for approval. Ms. Wolf said she is not clear
on what she is being asked to do. Mr. Jones explained that they would need to go back and review the plans because the reason they approved the variance was to save the trees. He said
the Board is also asking that they consult with an arborist to make sure they are staying inline with the previous variance. Mr. Fuller read from Ms. Hines letStaff
denied approval without Board action because of the potential impact of the trees, a swell as the introduction of an outdoor stage with the potential for live or recorded music, which
changes the character of the facility in a manner that relates to the question of buffering and proximity to residences. Mr. Fuller said if they are able to present a plan that would
persuade staff that those things pointed out by staff are not an issue, then staff would have approved it without having to come back to the Board. Ms. Hines said the outdoor music has
been done away with so that is no longer a concern, but there will be Building Code issues that will need to be satisfied, such as support of the structure so people can walk on it and
coordination between proper foundation and not hurting the root system. Mr. DeVita suggested a continuance of this case. He asked Ms. Wolf how long it would take to make these changes.
Ms. Wolf said they could have it in by next month. Ms. Hines suggested getting all the people involved (Building Inspector, Brian Capo, the urban forester) to sit down and discuss the
work project at one time. She said this needs to happen in the next 2 weeks. Ms. Gwen Phillips asked to speak.
6 Ms. Phillips said she has the back property which is owned by Sheps LLC and the property was
they are all in opposition to having decking going around the trees. She said her other
concern is the wetlands. She said when it rains all the water from Market Street barrels down to their back lot. Mr. Moore interrupted Ms. Phillips to explain that since the case would
not be heard tonight the Board should not hear her testimony. Board Decision 1. Slagle Holdings, LLC, 7032 Market Street, is requesting a modification to the site plan for Case No. ZBA-762
granted at the November 29, 2005 meeting for a variance from the side building setback and planted buffer requirements of New Hanover County Zoning Ordinance Section 69.11 and 67-4 for
a restaurant abutting property zoned R-15. Property is zoned B-2. Case No. 795 2. On a motion by Mr. Jones and seconded by Mr. Fuller, the Board voted unanimously to CONTINUE this case
to the November 28, 2006 meeting. There being no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Acting Chairman