zba-11-06
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 November 28, 2006. Members Present Members Absent Mike Furman, Chairman Carmen Gintoli Brian Eckel Michael Jones Michael Lee Tim
Fuller Dan Weldon Peter DeVita Ex Officio Members Present Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary The meeting was called to order by the Chairman,
Mr. Mike Furman. Mr. Furman explained to all present that the Board is a quasi-judicial board appointed by the Board of Commissioners to consider zoning ordinance variances from residents
in New Hanover County where special conditions would create unnecessary hardships. The Board also hears appeals of the
Zoning Ordinance. He added that appellants have thirty days in which to appeal any decision made by the Board to Superior Court. It was properly moved and seconded to accept
the minutes of the October 24, 2006 meting. The Chairman called County staff to be sworn. He swore in Ms. Ann Hines. THE FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS: Mr. and Mrs. Ramzi
Kharbat, 1009 Peterson Place are requesting a variance from the 15-foot side setback requirement of New Hanover County Zoning Ordinance, Section 52-2 to construct a new single-family
residence. Property is zoned R-20. Case No. ZBA-796 Mr. Furman called Ms. Hines to give overview of the case. Ms. Hines stated that Mr. and Mrs. Kharbat are requesting a variance from
the 15 foot side setback requirement of the New Hanover County Ordinance. She said they are building a house at 1009 Peterson Place in the Olde Baymeade Subdivision and this area is
zoned R-20 with a 30 foot front setback, 15 foot side setback and a 25 foot rear setback. She said the original plan showed the house met the setbacks, but the house was moved over and
angled angled to avoid the floodplain and as a result, does not meet the 15 foot setback; it is only 11.9 feet from the property line. Ms. Hines said an early inspection mis-measured
the existing conditions and Mr. Kharbat is now considering Mr. Furman called those to speak in
favor of granting the variance request to come forward to be sworn or affirmed for testimony.
2 He swore in Mr. Omar Kharbat, Mr. Jeff Biancamano, Ms. Patricia Yue and Mr. Ramzi Kharbat Mr. Ramzi Kharbat stated he is the homeowner and built the house. He said he is not a contractor
but the property owner. He said it is a long house on a large lot with 60 feet of wetlands on one side and he was forced to move the house and garage away from the neighbor in rear.
He said only one corner of the house is 11.9 feet from the side, the next closest corner is 17 feet from the side property line and the house is 25 to 30 feet from the wetlands. Mr.
Kharbat said there was not a house on the right side of the lot when he started building. He said his neighbor purchased the lot after his framing inspection was conducted in January
2006 and that is when he discovered the encroachment. Mr. Kharbat said he talked to the neighbor to see if he was willing to sell some of the land but the neighbor was only willing to
sell10 feet at $35,000.00. Mr. Kharbat asked the Board to consider allowing him to obtain his CO and move into house. Mr. Furman asks what lot relates to the land purchase. Mr. Kharbat
said lot 8 and he has lot 9. Mr. DeVita asked the purchase price and Mr. Kharbat said $150,000.00. Mr. Weldon asked Mr. Kharbat his profession. Mr. Kharbat said he has a heating and
air conditioning business.
of construction. Mr. DeVita also said according to the information in their package, Mr. Kharbat moved the house to get away from the wetlands,
which means he created his own hardship. Mr. Kharbat said that he is responsible but he made a legitimate mistake. Mr. Kharbat then presented additional photographs to Board members
in support of his case. Mr. Furman called for others to testify in favor of granting the variance request. Mr. Biancomano said he lives behind Mr. Kharbat and they do have standing water
issues in the neighborhood. He said Mr. Kharbat left a lot of trees and built a nice house. He said if he lived next d�
�lot of wetlands there and it was tricky placing the house and driveway. He said
the house is in style with the neighborhood. Ms. Yue stated that she was on the Homeowners Committee when Mr. Kharbat started building his house. She said, per the covenants, they have
to check the footings but they did not realize it was too close, and if they had known it was too close, they would have said so at that time. She said Mr. �
� Mr. Weldon asked Ms. Yue if she was still on the Homeowners Association
Board. Ms. Yue said she is no longer on the Homeowners Association but Mr. Biancomano is a Board member. Mr. DeVita asked if they gave approval and did they have records of the site
visit.
3 Ms. Yue said they were a new HOA, unorganized, and just getting started. She said they have since hired a company, Southern Community, to check the footers. She also mentioned that
she owns lot 7 and at one time she and Mr. Kharbat discussed purchasing lot 8 and splitting it, but the lot was sold. Mr. Furman called for those to speak in objection to granting the
variance request to come forward to be sworn for testimony. Mr. Furman swore in Joseph and Linda Rice. Mrs. Rice stated that they are friends with Mr. and Mrs. John Ruggiero, who own
lot 8. She said probl
em with the seRuggieros. Mrs.
Rice said they have a notarized letter from the owners of lot 8 stating that they can act act as their agent and also a letter from them stating their objections to the variance request.
She then asked if she could read the letter to the Board. Mr. Moore asked to read the letter first. Mr. Lee asked if they could answer questions about what is in the letter. Mr. Moore
said that since it is a quasi-judicial Board they are allowed to consider hearsay information. Mr. Rice read the letter aloud, and submitted it for the record. Mr. Lee asked Mr. Rice
if they live in the neighborhood and Mr. Rice answered yes. Mr. Lee asked if it reduces their property value if the house was three and a half feet further to the left. He also asked
when Mr. and Mrs. Ruggiero purchased the lot. Mrs. Rice said she does not think it would reduce the value of their property. She said Mr. and Mrs. Ruggiero purchased six or seven months
aconstruction in the current location. Board Deliberation Mr. Weldon said the house is
in the the wrong location. Mr. DeVita said the house is built and footers cannot be moved. Mr. Furman said the hardship was caused by the contractor and whoever surveyed the lot and
put in the stakes. Mr. Eckel said others helped to create the hardship. Mr. DeVita said if that ten-foot strip of property were reasonably priced, Mr. Kharbat would not be here requesting
a variance. He said the $35,000.00 the Ruggieros were charging for a tenth of an acre is unreasonable. Mr. DeVita said before the hearing he was willing to make the contractor reconfigure
the house, which could be done for approximately $10,000.00, but he has been swayed to be in favor of granting the variance request.
4 Board Decision: 1. Mr. and Mrs. Ramzi Kharbat, 1009 Peterson Place are requesting a variance from the 15-foot side setback requirement of New Hanover County Zoning Ordinance, Section
52-2 to construct a new single-family residence. Property is zoned R-20. Case No. ZBA-796 2. On a motion by Mr. DeVita and seconded by Mr. Lee the Board voted to GRANT the variance request.
(1 nay, Mr. Weldon) THE SECOND CASE BEFORE THE BOARD WAS AS FOLLOWS: Mr. and Mrs. Hamid Dehghan, 158 Beach Road South, Figure Eight Island are requesting an extension of Case No. ZBA-701,
variance granted November 16, 2004 from the 30-foot front setback requirements of Zoning Ordinance, Section 51-2 (3) to construct a new single-family residence. Property is zoned R-20S.
Case No. ZBA-797 Mr. Furman called Ms. Hines to give overview of the case. Ms. Hines stated that the property is an oceanfront lot on Figure Eight Island, owned by Mr. and Mrs. Dehghan
for several years, and they were in the process of designing a house when hurricanes
required by Figure Eight Island, the lot was not buildable. She said they received a variance
in 2002 and a renewal of the variance in 2004. Ms. Hines said that variances are only good for two years unless a building permit is obtained. She said there is a sixty-foot setback
from the first line of stable natural vegetation required by Coastal Management and the variance is for nine feet in the front (road side) of property. She said the vegetation line was
rechecked by staff recently, to see what the current conditions were and they found that about nine to ten feet more of the lot was lost. Ms. Hines added that the CAMA line is a fluid
line but slow to change. Mr. DeVita asked about beach bulldozing on Figure Eight Island. Ms. Hines explained that bulldozing is an ongoing project. She said it is sometimes possible
for an owner to get a variance from the Coastal Resources Commission after all local options have been exhausted and this lot has been granted a variance twice before. Mr. Furman called
those to speak in favor of granting the variance request to come forward to be sworn or affirmed for testimony. He swore in Mr. Al Cimino.
shows that it has lost another nine to ten feet. Mr. Cimino
then presented an email from Mr. Dehghan that states without this variance it would be difficult to get a CAMA permit. He also mentioned that they have hired Coastal Transplants to seed,
plant and stabilize the soil and presented correspondence from Coastal Transplants showing a plan for replanting the dune. Mr. Cimino said that both CAMA and the Figure Eight Homeowners
Association would have to approve the plan before they start any plantings. Mr. Eckel asked Mr. Cimino what they are asking for. Mr. Cimino said they are requesting a renewal.
5 Ms. Hines stated that the variance had not expired when the renewal was applied for. Mr. Furman called for those to speak in objection to granting the variance request to come forward
to be sworn for testimony. There was no one present to object to the Board granting a renewal to the variance. Board Decision 1. Mr. and Mrs. Hamid Dehghan, 158 Beach Road South, Figure
Eight Island are requesting an extension of Case No. ZBA-701, variance granted November 16, 2004 from the 30-foot front setback requirements of Zoning Ordinance, Section 51-2 (3) to
construct a new single-family residence. Property is zoned R-20S. Case No. ZBA-797 2. On a motion by Mr. Eckel and seconded by Mr. Lee the Board voted unanimously to GRANT the variance
renewal request. Mr. Furman called for a brief recess. After recess Mr. Furman announced that the Slagle Holdings, LLC case would not be heard tonight. THE THIRD CASE BEFORE THE BOARD
WAS AS FOLLOWS: Carolina Marina & Yacht Club, LLC, 1512 Burnett Road has appealed the determination determination of the Zoning Official regarding the use of a forklift at a commercial
marina. Property is zoned R-15. Case No. ZBA-793 (Continued from the October 24, 2006 meeting). Mr. Furman called Ms. Hines to give an overview of the case. Ms. Hines stated that property
is located at 1512 Burnett Road and relates to a Special Use Permit �
�improvements to the marina on the property and the owners want to use a forklift or travel lift by mechanized means to move boats to and
from the water. She said in 2004, there were ongoing discussions with the property owners about various design scenarios that they wanted and to get approval at staff level as minor
changes. Ms. Hines said they had ongoing discussions about the changes, and plans were submitted but were withdrawn. She said the use of a forklift became a sticking point. She said
the Planning Department sent a letter in 2004 conveying to the owners that the introduction of a forklift was a departure from their originally approved plan and it was a significant
change in the character of the development. Ms. Hines said one of the criteria laid out in the Zoning Ordinance is that the project go before the County Commissioners for revisions or
modifications that change the character of the development. She said the marina owners disagreed with staff and sued in Superior Court. She said it went through the courts for a period
of time before the Court decided that it was a jurisdictional problem and ruled that it should go through County administrative channels first, and that is what is happening now.
recommendation.
6 Mr. Moore answered that the marina owners contend that it is not necessary to go before the County Commissioners because it is not a major change. Mr. Moore said they did go before
the Planning Board and there has been a multitude of appeals on this case. The Chairman called those to speak on the case to come forward for testimony. Mr. Shanklin stated that Tim
Ward has a Special Use Permit issued to his father Homer Ward, in 1971 and their position is that they have the right to use a forklift. He said there is nowhere stated in the County
Ordinance that anyone, at the County level, can limit the operation of equipment on a site and nowhere in the permit does it limits the equipment that can be used. Mr. Shanklin said
the Special Use Permit has seven conditions and all seven conditions have been met. He said their position is that if something is not prohibited, then you can do it and the Special
Use Permit is not an exception but a recognized right with conditions. He said the core issue is the authority authority of the Planning Department and Zoning Official to allow amendments
to special use permits, but they cannot add or take conditions away. Mr. Shanklin said they came here tonight following a decision in February 2006 by the Court of Appeals on a disagreement
between them and the decision of the Planning Department and Zoning Official. He said they were told to go before the Zoning Board of Adjustment to enter it into record and they are
building a record since he expects this to be carried up to Superior Court. He said the Ordinance does not allow staff to impose conditions and they do not need permission to use a forklift.
Mr. Shanklin added that the only reason the forklift is not there today is out of respect for Ms. Hines, who would not give them permission to use a forklift. Mr. Shanklin then asked
the Board if they could introduce their witnesses and have them sworn in. The Chairman swore in the following: Thomas Vann Donald Ward Timothy Ward Kim Altman
David Ward Randall Ward Attorneys present: Kenneth Shanklin Matthew Nichols William Raney Mr. Lee asked if the Board is deciding on the use of a forklift or discretionary powers of the
Planning Department and Zoning staff. Mr. Moore explained that what the Board is dealing with is what was created by the Special Use Permit; was it a reasonable determination by staff
that a forklift was more than a minor change, what was created by the Special Use Permit, and does it allow the use of a forklift. Mr. Shanklin asked if documents could be submitted,
and held up a large stack of printed material. Mr. Moore said the Board could not read all those documents tonight.
7 Ms. Hines said nobody is well served if documents are submitted and no one is allowed time to review them. Mr. DeVita said if there is a need to review documents, then the Board members
should sit down with the County Attorney to have the meaning explained to them. Mr. Nichols said the main purpose of the documents is to establish points that the County has already
stipulated to in Superior Court. He asked if there was anywhere in the New Hanover County Ordinances from 1971 to 2006 that places restrictions on the use of a forklift at a marina.
Ms. Hines said that this is not a simple question with a yes or no answer, and there is also the noise issue. She said the introduction of a forklift is a change in the character of
the development. Mr. DeVita asked if a motorized high-pressure washer to clean boats an appealable issue. Ms. Hines said that that is hypothetical question and you tread on shaky ground
when trying to answer hypothetical questions. She said she did not know what kind of noise pressure washers make. Mr. Eckel asked the number of marinas in the County that use a forklift.
Ms. Hines said she does not have those statistics but that most of the dry stack storage facilities are in the commercial or industrial zoning areas so special use permit issues do not
come up. Mr. Lee asked if this is an appeal of this determination or is this something they need to do and then be cited for. He sai�
�what is being appealed? Mr. Moore said a change of some sort is necessary in order
to use a forklift. He said the Board should consider if this is a minor modification, or does it need to go to the County Commissioners. Mr. Eckel asked if there is a forklift on site
and what the definition of a commercial marina is. Ms. Hines read the definition of a commercial marina from the current New Hanover County Zoning Ordinance: Commercial Marina -Any
dock or basin and associated structures commercially providing permanent or temporary harboring or storing of two (2) or more boats (pleasure and/or commercial), and providing marine
services, included but not limited to retail
She said that definition was not there at the time the marina was approved. Ms. Hines said there are plenty of marinas around that have a shortened list of certain
things that are excluded from the list, and it does not mean that all of the commercial marinas in the County can do all of those things because they are evaluated on a case-by-case
basis at the time the permit is issued. She said there was no definition at the time of that Special Use Permit, rather just the items in the list of permitted uses. Ms. Hines said there
was a use classification for a private pier, which was permitted in the R-15 zoning district, and one that required a special use permit for docks and/or marinas with no specific standards
when it went before the County Commissioners. Mr. Raney suggested that the Board read all the relevant documents and if the large volume is official documents, it is not necessary to
read or cite prior ordinance as relevant.
8 Mr. DeVita asked Mr. Raney if it is the fact that they want to use a forklift or is it the noise. He also asked if they could use a quiet forklift, or if the neighbors are just opposed
to the conception of a marina as a neighbor. Mr. Raney said his clients have lived there for a number of years and there has never been a marina there, just a few boats docked out there.
He said the 1971 permit allows very little of what the current owner is trying to do because he wants to create a large commercial marina in a residential area. Mr. Furman asked how
permission to use a forklift was ever submitted to Zoning. Mr. Shanklin said they were discussing other modifications and the issue of the forklift came up and there was never an official
determination made. He said they went to Court because of fundamental disagreements about that permit and the Court sent them here. Mr. Lee asked how the Board should hear this case
so that it does not come back. He said the Board needs to review the appropriate issue. Mr. Nichols asked if they would be cited with notice of violation if they use a forklift on the
�
�property violates Special Use Permit #13, but there is no mention of restriction of a forklift in the permit. Mr. Nichols said their concern is if they are cited for violating the Special
Use Permit, it would become void. He said rather than be arrogant or defiant and get a forklift, they decided to get a determination as to whether they can use a forklift under Special
Use Permit #13. Mr. Nichols said they have not had an adequate explanation as to why they cannot use a forklift to transport a boat from point A to point B at their commercial marina.
He pointed out that they can repair boats, and sell boating and fishing supplies without a restriction in this permit and in the 1971 minutes of the Planning Board and the County County
Commissioners meetings there was no mention of any restrictions on using or not using a forklift, even though forklifts were clearly being used in 1971 at marinas. Mr. Nichols also said
the manager at Creekside Marina, Mr. Vann is present tonight and could speak on the fundamental importance of using forklifts at marinas. He added that Mr. Vann has 40 years of experience
in the marina business. Mr. Weldon asked if there is mention of a non-commercial marina in the County Zoning Ordinance. Ms. Hines said there are some other use classifications that are
all strictly private residential facilities. She said some are shared among property owners in a development, where there may be more than one lot owner having the right to use one of
the community facilities but there is only the one commercial marina definition. She explained that the word marina is not used for the non-commercial ones, and the private ones are
called boating facilities. Mr. Moore explained the issues. He said: (1) If the Board finds finds that a forklift is allowed under the permit, as it stands, it would me
there is an administrative change tied in with this, and if the Board finds that
it would not change the character of the development under the Special Use Permit, which means the administrative �
�decision; and (3) if the Board finds that it was not allowed under that permit
and should not have been an administrative change because it would change the character, then the Board would affirm
9 Mr. Weldon asked if it was anticipated that there would be dry storage on a rack at that time under the existing permit. Mr. DeVita said he used to live on the next street over for
a number of years and at the most there were 1 or 2 boats, most of the time never a boat. He said he has attended several of these Zoning Board meetings as an alternate and then as a
member of the Board and has seen little changes that have added up and now all these minor changes have allowed for growth into a large commercial marina. Mr. DeVita said he does not
think this is the place to solve this. Mr. Moore said the North Carolina Court of Appeals has said this is where it needs to be heard. Mr. Nichols said they have a full presentation
and they want to know if they put a forklift on site tomorrow, will they be cited. Mr. Raney said it would be appropriate for the Board to rule on that and if the Board rules against
hey can be in position to appeal the decision. Mr. Moore said in the rules of procedure the opposition
is allowed to be heard. The Chairman called for a short recess. Following recess, Mr. Shanklin presented the following exhibits. Exhibit A Series of letters asking for a determination
to use a forklift Exhibit B Special Use Permit 13 (copy) Exhibit C Approved site plans, three pages Exhibit D Minutes from the 1971 Planning Commission meeting and County Commissioners
meeting approving the special use permit Exhibit E Affidavit of Timothy Ward and documents received from state archives dealing with dredging permit. Exhibit F Certified true copy
of judgment filed with the court. Exhibit G Relevant deeds (certified copies) Exhibit H Zoning Ordinance at time of decision in 1971 Exhibit I Zoning Ordinance 1983 Exhibit
J Zoning Ordinance 2002 Exhibit K Zoning Ordinance 2006 reprinted Mr. Shanklin said the majority of documentary evidence will be cut through quickly as they are building a record.
Mr. Nichols asked if he is permitted to ask Ms. Hines some questions. Mr. Furman answered yes, he could ask Ms. Hines questions. Mr. Nichols referred to Exhibit B, Special Use Permit
#13 and asked if there were any mention of restrictions to the use of forklifts on the permit. He asked if there are any provisions in the County Zoning Ordinance that restricts the
use of a forklift at a marina. A discussion ensued between Board members on the type of questions being asked and if the Board should allow that type of questioning.
10 Mr. Lee said Mr. Nichols should be allowed to present evidence and if his way of presenting evidence is to ask questions, then he should be allowed to do so. He said there is nothing
in the rules on how they should present evidence. Ms. Hines responded to Mr. Nichols by stating that she had already answered that question by way of saying that there are peripheral
issues that can restrict the use of a forklift at a marina, as in this case. Mr. Nichols asked what those issues would be. Ms. Hines said there is no mention of dry storage or a forklift
in any records of the deliberations of either Board that acted on this Special Use Permit back in 1971. She said there is nothing to indicate anyone intended for boats to get in and
out of the water other than by use of a trailer behind a
was a key element of the scenarios that were being presented at that time by their client. She said they could not find
any indication that a forklift was contemplated in that original decision and staff then concluded that this was more than a minor change. She said it was a change in the character of
the original marina as described in the proceedings, as shown on the plan, in the minutes and in the Special Use Permit itself. Ms. Hines said it is not that it was a good or a bad thing
to have a forklift
y
under the Ordinance to say the introduction of a forklift is now allowed for the purpose of delivering boats to and from the water. She said it is more appropriate to go before the County
Commissioners to modify the special use permit. Mr. Nichols asked Ms. Hines to look at Exhibit C, which is a copy of the original site plan. He then asked if his client used a forklift
to move boats from point A (entrance) to point B (proposed parking area) on the asphalt area, would he be cited. Ms. Hines informed Mr. Nichols that there is a possibility that he might
be cited. She asked Mr. Nichols why he wants to transport the boat with a forklift from point A to point B. Mr. Nichols answered to make repairs. He also asked what if he wanted to store
the boat. Ms. Hines said part of the issue with the forklift is the fact that there was no mention in the original discussion for forklifts or racks to hold boats; they were all to be
on trailers. Mr. Nichols asked Ms. Hines if she is saying that it is inconsistent with the Special Use Permit if a boat is on the trailer at point A and they want to move it to point
B for repairs, washing or painting, and they use a forklift to move it. Ms. Hines said what is being appealed here was a letter that talks about using a forklift to deliver boats to
and from the water. She suggested that they may want to limit their discussion to that area. Ms. Hines said this kind of scenario was not laid out to staff when they were discussing
plans for the marina two or three years ago and not what was part of that decision. Mr. Nichols said they are not here to appeal or ask for any administrative changes to the site plan,
but rather to find out if they can use a particular piece of equipment at the marina. Ms. Hines said it appears that they are differing over the subject matter and as to what they are
here about.
11 Mr. Nichols asked if they parked a forklift on the marina tomorrow, would that be a violation of Special Use Permit #13. Ms. Hines said she did not know the answer to that. She said
in order to answer that they would need to determine why it is there, what is its intended use on the property and then she would need to discuss this with the Planning staff because
they also have a role in this recommendation. Ms. Hines said the heart of the process is whether this qualifies as a minor change approved by staff or
property, the actions and
things done there, and the equipment used there are a part of the development itself. Mr. Nichols continued to express that there is no restriction in the permit granted by the County
Commissioners prohibiting the use of the forklift. Ms. Hines said there is also no mention made of allowing it. Mr. Nichols questioned if there is any mention made in allowing half-ton
diesel pick up trucks to transport boats. Ms. Hines said there is mention made of using personal vehicles. She said there is an inference of personal type vehicles pulling a boat trailers.
This special
use permit shall be subject to the conditions listed above and the Zoning Ordinancesaid he does not believe there are any conditions in the permit prohibiting
the use of a forklift and he asked if there are any prohibitions or restrictions in the Zoning Ordinance for use of a forklift at this property. Ms. Hines said there is not a direct
prohibition against using a forklift on any property and she does not think the term forklift is going to show up in the Zoning Ordinance. Mr. Lee asked if they could outline the the
evidence in the materials that they want to get before the Board so they can use that in making a decision. Mr. Furman asked what they are going to do with a forklift. Mr. Nichols said
they do not have statistics but a forklift is an integral part of a marina and they are asking to use a forklift at this marina. He said the decision as to whether the marina should
be there or not is not the question because that decision was made 35 years ago by County Commissioners.
the
Ordinance to see what you can do on your property, but rather what you cannot do on your property. He said there has to be a reasonable restriction and no one has shown in the Ordinance
where they are prohibited in using a forklift. Mr. Lee said the issue is is not the forklift, it is the equipment and that does make a difference that may change the character of a commercial
marina. Mr. Nichols said they just want to know if they can have a forklift on the property without being cited, because if they violate the permit that would void it and they would
be without a permit. He said they do not want that to happen.
12 Mr. DeVita asked the Chairman if they could hear arguments from the opposing side. Mr. Raney said it would be appropriate for the appellant lawyers to present all their evidence and
then they could have their say. Mr. Shanklin called Mr. Tim Ward. Mr. Tim Ward said he is the owner of Carolina Marina and Yacht Club. Mr. Ward said that Bradley Creek Marina starting
dry stacking with the use of a forklift in 1964. He said on the site plan there is a designated building called a boat shed and he did not know if his father intended for it to be a
rack facility or not. Mr. Ward said the other designation on the site plan is the clubhouse, which denotes a private facility and most private marinas in this County have forklifts and
use dry stack storage. Mr. Ward said as opposed to the concept that it was to be an open-to-the-public boat ramp only, there is a conflicting piece of information that �
�would have evolved into something like the Masonboro Boatyard or Bradley Creek Marina, that uses small and large forklifts
for either movement of boats or to take them off the trailer to clean or do repair work. He said there are two boatlifts on site that were permitted in 1993 to lift boats out
It is generally accepted by the
justice system that when evaluating permits and conditions, if a condition or exclusion is not specifically listed, it is assumed not to exist or to apply. In this case, no such condition
or exclusion was listed on the requirements mandated by the County Commissioners; therefore, it should not be accept�
� Mr. �
�based on whether he likes it or if it hurts the neighbor, but whether it is permitted or not based on
could be construed as a change in character.
Mr. Ward said when he initially met with Ms. Hines, one of the things they agreed on was that they are bound by the conditions of the permit without a lot of leeway in terms of getting
out of these conditions but at the same time not be bound by additional conditions
he did not remember making that statement and she would not have inferred that someone could completely develop under a
special use permit where they had done nothing to become vested in it. She stated that Mr. Ward became vested by continuing the grandfathered activity under the permit once it was issued.
Mr. Shanklin asked Mr. Ward to identify Exhibit N. Mr. Ward said it is his affidavit. Mr. Shanklin asked Mr. Ward if the affidavit is dated October 1, 2004 and is it part of a lawsuit
filed in New Hanover County under # 04 CVA 2195. Mr. Ward answered yes to both questions. Mr. Raney asked the Chairman if he could question Mr. Tim Ward and Mr. Furman said yes. Mr.
Bill Raney said he is representing Violet and David Ward. He asked Mr. Tim Ward his intention for the use of the forklift, if allowed to have one on that property. Mr. Tim Ward said
to move boats and to use the equipment to its fullest capability.
13 Mr. Raney asked Mr. Ward if he stated in a recent Planning Board meeting that it was his intention if allowed to construct a pier and to use a forklift to launch boats. Mr. Ward said
at that Planning Board meeting, it was specifically stated that he would use boats on trailers for launching vessels into the water. Mr. Raney asked if this would be from a 24-foot wide
pier. Mr. Ward said yes, similar to the Watermark facility. Mr. Raney asked Mr. Ward if the Watermark facility uses a forklift to launch boats and if that is what he intends to do. Mr.
Ward said Watermark uses a forklift and the proposal he presented to the Planning Board was to use a vehicle to launch boats on trailers, not a forklift. Mr. Raney asked Mr. Ward when
he responded to a question from a Planning Board member, if he stated that if allowed to, he would use a forklift to launch boats from that pier. Mr. Ward said he did not recall saying
that at that meeting and he has always made it known that he would like to evolve this project into some type of dry storage facility. He said the structure they presented at the Planning
Board meeting was for a trailer and vehicles being used and that was partly the reason it was continued so that they could show them the design of the pier structure with the boat ramp.
Mr. Raney referred to the 1971 site plan. He asked if there was any place on that plan that would be useful for using a forklift to launch boats. Mr. Ward said in his opinion, it would
be advantageous to have the capability to be able to launch boats with a forklift. Mr. Raney said there was nothing in this plan that shows a spot where a forklift could launch boats.
int
ent to have a forklift on this property for use at the commercial marina. Mr. Raney asked Mr. Ward how long his father lived at that location. Mr. Ward said his father bought the property
in 1966 and he died in 2000. Mr. Raney said he lived there for 29 years and did not use a forklift. Mr. Ward said he did not live there all through the 29 years be
transferred him for 15 of those years and he does not have an answer to that. Mr. Shanklin called Mr. Donnie Ward for testimony. Mr. Donnie Ward said he lives at 1507
Burnett Road and he is the brother of Timothy Ward. Mr. Shanklin asked Mr. Donnie Ward to identify Exhibit O.
14 Mr. Ward said it is his signed affidavit in a case against New Hanover County, October 1, 2004. Mr. Shanklin asked Mr. Ward if all information is correct on the document, other than
his age, and Mr. Ward answered yes. �
� Mr. Ward said his father was an electrician by trade and they constructed a 2-story pump house that grew into a 5,000 square foot 2-story house. He said his father always wanted
a marina and also wanted something to leave his heirs. Mr. Ward said it was dredged and they had ongoing activity such as pumping gas, selling snacks and other sundry items. He said
they had to give the County Commissioners something to look at and his drawing was their best representation of what they wanted it to be. Mr. Ward said a forklift is needed to do repairs,
paint boats and service engines and they are not asking to get outside the scope of work, just to use a forklift. Mr. Shanklin called Mr. Thomas Vann for testimony. He asked him to state
his name and address. Mr. Thomas J. Vann said his mailing address is Post Office Box 1715, Wrightsville Beach. He said his home address in the summer is 55 Johnson Street, White Lake
and his winter address is 1649 Hwy 701 North, Elizabethtown. Mr. Shanklin asked Mr. Vann to identify Exhibit P. Mr. Vann said it is his signed affidavit when he gave a deposition in
a lawsuit with New Hanover County. Mr. Shanklin asked Mr. Vann if it is # 04 CVS 2195, if the information is correct, other than his age, and was it signed on September 29, 2004. Mr.
Vann answered yes to all questions. Mr. Shanklin asked Mr. Vann to explain his knowledge of and involvement with marinas. Mr. Vann said he is the General Manager of the Creekside Yacht
Club located behind Bradley Creek Marina. He said they are the largest marina with the amount of boats in New Hanover County. Mr. Vann said they have 387 boats and 2 forklifts. He said
said they went from diesel forklift, which blew out a lot of black smoke and made a lot of noise, to a gas forklift. He said the gas (propane) forklift is clean and makes less noise
than the diesel one. He said you cannot use a forklift when it is dusk to dawn due to not being able to see because of the forks sticking out and the perception is off. Mr. Vann said
they have a large forklift that can pick up 2,200 pounds and up to 40 feet in height and a negative going down in the water of 12 feet. He said a forklift is an integral part of the
marina business, but there are marinas that do not have to use forklifts because the boats stay in the water and do not come out of the water for repairs. Mr. Raney asked Mr. Vann when
a boat is picked up with a forklift to launch it into the water, is the engine end of the boat next to the vertical part of the forklift. Mr. Vann said the engine is next to the mast
if it is an outboard. Mr. Furman called for those to speak in opposition to the appeal to come forward for t
estimony. 15 Mr. Raney said he is in agreement with Mr. Shanklin and Mr. Nichols that this is an issue of law. He said he would like to hear Ms. Hines speak on what the basis of her
consideration and determination is in this matter. Mr. Raney also said he would like the opportunity to make arguments concerning the issues of law. Ms. Hines stated the appellant has
tried hard to cast this as an appeal from a determination made by a Zoning official and not within the context of an ongoing series of plan submittals to staff. She referred to a letter
in the package from her dated in September 2006 that refers back to a May 2004 letter written by Baird Stewart in Planning. Ms. Hines said the reason the letter originated from
s. Ms. Hines explained that the Ordinance states that an administrative change, modification or minor
change in a special use permit, should first be submitted to the Planning Director who shall consider the facts, and on favorable recommendation by the Planning Director, then the Inspections
Director (and this has been delegated to her) may approve minor changes as long as the change does not change the traffic pattern significantly that could cause a hazard, not change
the character of the development and not reduce building setbacks. She said the introduction of a forklift and the likelihood of dry storage racks at this marina property, was not on
the original plan and was not contemplated or discussed at the original proceedings. She said it is a change in the character of the development and significant enough that staff felt
that it was not within their discretionary power to approve and directed the applicant to the County Commissioners to modify the Special Use Permit. She said the appellant did not want
to do this and there have been several failed attempts to get a dry storage facility approved, but they have not gotten anywhere; drawings have been submitted and withdrawn. Ms. Hines
said the latest attempt before the Planning Board is a 270-plus feet long pier structure to deliver boats from high ground out to where there is enough water to float a boat. She said
dredging has proven to be a problem and the owners are coming to this Board for the forklift instead of going to the Planning Board and County Commissioners, as they were instructed
to do. Ms. Hines said she was at the Planning Board meeting and the statement made at that meeting was they do not plan to use a forklift on this structure, but a vehicle. Ms. Hines
said if this Board lets them use a forklift, then they would not have to go the Commissioners to ask permission to use a forklift, and they probably do not want to go to the Commissioners
because they think they may not get permission. Ms. Hines commented that this project is being piecemealed around, and they are shopping at different venues to get what they can. She
said staff has told them to go to the County Commissioners with this request, and they are fighting it. Mr. DeVita asked if they have been to the County Commissioners. Ms. Hines said
they have been thorough the process and she does not know how much has gone all the way to the County Commissioners, but they have been back and forth to the Planning Board with different
scenarios, trying to make the project work. She said staff has carefully and thoughtfully looked at everything they presented to them but they did not find any indication that in 1971
anyone had in mind dry storage racks and forklifts delivering boats to and from the water. She also said that staff turned down the request for the elongated boat ramp structure, which
has gone to the County Commissioners. Mr. DeVita asked if the neighbors were in favor of this marina, would they be allowed to have a forklift. Ms. Hines said they would still have to
go to the County Commissioners because it is beyond what the original permit contemplated.
16 Mr. Furman said when he asked what they were going to use a forklift for, the response was they are going to move boats from one place to another. He said on October 16, they came
to the Board requesting a forklift to move boats from a dry storage to the water and even if the Board overrules
Mr. Nichols said part of the reason this has been piecemealed is because it has been
attacked on several levels. He said they went to Superior Court and the Court of Appeals told them to come to the Zoning Board of Adjustment and they do not have the option to go the
County Commissioners on this issue. Mr. Nichols said they need to know first if they are allowed to use a forklift and it needs to be approved by the Planning Board and the County Commissioners.
He said last month the Planning Board was reluctant to rule on it because they they said the forklift issue needs to be cleared first. Mr. Nichols said they have not misrepresented anything
to the Planning Board or this Board and they will use the forklift however they are allowed to use it. Mr. Shanklin referenced the following material that he said he got from UNCW Law
Library: , which he said deals with special use and general permits.
Absent specific authority in the ordinance, a board may not impose conditions [County Commissioners] which relates to the detained
Mr. Shanklin said the end reads that
a County Commissioner condi
Mr. Shanklin said this is saying when you have a right to have a marina and conditions are listed, �
�Hewett v. Brunswick County. He said this case involved a �
�terminated. He said the case went to Superior Court and the Court of Appeals reversed it. Mr.
nce of a permit, and if there is a violation of a permit, there are specific statutes for that in North Carolina.
The Law of Zoning and Planning, pages 135-136. He read A special use permitted or conditional
use provided for by the ordinance is a permitted use when approved Mr. Shanklin directed the Board to footnote number 1on the same page. He said it shows two North Carolina cases;
the Winston-Salem Board of Adjustment case and Re-Application of Ellis, which says a special use permit is not a special exception but a permitted use with conditions. William Dobo v.
ZBA City of Wilmington, which he said is very similar to the Ward case. Mr. Shanklin said the case involved the right of a hobby shop to use equipment and the Supreme Court ruled in
their favor because the issue was the right to use the interpretation of the accessory use provision in the ordinance as it is written. He said there is nowhere in this ordinance to
say you cannot use a forklift and the decision of staff must be reversed. Mr. Bill Raney said the Special Use Permit consist of two elements: (1) an old plan that was very �
�conditions
should be looked at the same way. Mr. Raney said marinas have evolved since 1971 and there may have been one dry stack storage facility in New Hanover County in 1971, which was Bradley
Creek and afterwards other commercial marinas emerged. He said this 1971 Board of Commissioners looked at a plan that showed a boat ramp and 20 wet slips with provisions for parking
spaces for trailers. He said there was no conception of a dry stack storage facility for this
17 n was appropriate that the use of a forklift at this facility constitutes a violation of the Special
Use Permit. He said there is no place for launching boats with a forklift because as Mr. Vann indicated, forklifts require that the motor part of the boat be next to the forklift and
that forklift would either have to go in the water to get deep enough to put the boat down to float or come up to a bulkhead or the end of a pier with deep enough water underneath to
set the boat down into. Mr. Raney said there is nothing like that in the Special Use Permit and the plan is what controls the decision. He said staff was correct in saying the use of
a forklift is more than a minor change. Mr. Eckel asked the proposed conceptual use for the boat shed. Mr. Raney said he would think that would be where they would take boats for repairs.
Mr. Eckel asked how they would get the boats there to be repaired. Mr. Raney said they would pull pull the boats on trailers because he does not think there were private marinas in 1971
with boatlifts. He said he doubted the County Commissioners in 1971 were looking at the clubhouse and visualizing it to become a boatlift operation. Mr. DeVita said what began as a family
marina is obviously evolving into a larger, much nicer marina and it is logical for a forklift to be used at this type of marina to maneuver around. He said technology has changed since
1971. Mr. Raney said the interpretation of this provision of the 1971 permit is relevant. He said they are attempting to piecemeal in order to convert this 1971 family marina into a
large commercial marina in the midst of a nice neighborhood until they get to a dry storage building. Mr. Raney said the Board needs to take into account what is going on, and make the
right decision so the applicant can go through the right process with the County Commissioners and request a major change and not go through this piecemeal process. Mr. DeVita said he
did not see anywhere on the drawing they could put dry storage. He asked Ms. Hines if that would be considered a major change. Ms. Hines said yes, that would be a major change and part
of the picture for the use of a forklift. Mr. Weldon asked if the applicant was up and operating and over time evolved into using a forklift when he did not start out with one, would
the applicant have to get special permission at that time to use a forklift. Ms. Hines said it is important for the Board to remember how this matter came to them and the role of the
Board. She said the Board is not supposed to be giving advisory rulings or instructions on how staff should interpretation the ordinances just of their own volition, but rather by hearing
appeals from specific actions. She said the action that has been appealed took the form of a letter from the Planning staff in 2004 and that letter was formalizing what had already been
told to Tim and Donnie Ward, that their proposal to use a forklift was deemed to be more than a minor change. Ms. Hines said she did not feel it was necessarily before the Board that
if someone bought a forklift there, they are or are not in violation. She said they were turned down on an administrative plan approval. Mr. David Ward said in the special use process,
it has to be harmonious with the neighborhood in order to be placed there. He said the neighbors do not feel that this operation is right for their
18 neighborhood. He said thy have been approved to increase parking from 22 spaces to 41 spaces, put in a yacht club, bringing in loud and intrusive equipment in a neighborhood that
was not designed around a marina or for commercial use. Mr. Ward said this was zoned by a special use permit and only part of it was to be use for commercial with a fenced boundary and
to the road out front for residential use. Mr. Lee said this is not what this appeal is about. It is an appeal for the use of a forklift at a marina. The Chairman closed the Public Hearing.
Mr. Moore said it is important to know exactly what specific issues is being appeal. He said Ms. Hines said it in the very
hus any plan approvals granted at the staff level would preclude the use of a forklift for the delivery of boats to and from
the water Mr. Eckel said in 1971 they were granted the right to have a marina marina and there will be tools necessary to use in the operation of a marina. Mr. Lee said the issue
is whether the use of a forklift at the marina is within the bounds of the Special Use Permit and the issue of whether it is a major or minor change is not before the Board tonight.
Mr. Lee said he agrees with Mr. Eckel that it is equipment that is used at marinas. 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 (Continued from the October 24, 2006 meeting). 2. On a motion
by Mr. Eckel and seconded by Mr. DeVita the Board voted unanimously to GRANT the appeal, finding that a forklift can be used under the provisions of the 1971 Special Use Permit for a
marina.
There being no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Chairman