ZBA-2-07
1 INUTES 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
Government Center Drive, Suite 110, Wilmington, NC, on February 27, 2007. Members Present Members Absent Mike Furman, Chairman Dan Weldon Michael V. Lee Brian Eckel Carmen Gintoli Tim
Fuller Michael S. Jones Peter DeVita Ex Officio Members Present Andy Olsen, Counsel to the Board Holt Moore III, Assistant County Attorney Ann S. Hines, Executive Secretary Steve Still,
Asst. Chief Zoning Enforcement Official Christine Bouffard, Acting Clerk The meeting was called to order by the Chairman, Mr. Mike Furman. Mr. Furman explained to all present that the
Board is a quasi-judicial board appointed by the Board of Commissioners to consider zoning ordinance variances from residents in New Hanover County where special conditions would create
unnecessary hardships. The Board also hears appeals of the
thirty days in which to appeal any decision made by the Board to Superior Court. It was properly moved and seconded to approve the minutes
of the January 23, 2007 meeting. The motion passed unanimously. The Chairman called County staff to be sworn in. He swore in Ms. Hines. THE FIRST CASE: Emily Ragsdale, 317 Beach Road
North, Figure Eight Island, is requesting a variance from the side setbacks of New Hanover County Zoning Ordinance, Section 51-2 to renovate an existing residence. Property is zoned
R20S. Case No. ZBA-799. Mr. Furman called Ms. Ann Hines to give an overview of the case. Ms. Hines stated that property owner, Ms. Emily Ragsdale, 317 Beach Road North, Figure Eight
Island, is requesting a variance for an existing house built in 1980. Ms. Hines explained that when plans were prepared for renovations, an encroachment into the side yard setback was
discovered
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2 this is not an unusual case and that every few months a case such as this will crop up on Figure Eight Island. Mr. Furman called the appellant and those to speak in favor granting
the variance request to come forward to be sworn or affirmed. Cothran Harris was sworn in. Mr. Harris stated that he is the architect for the renovation project and is filing the variance
request on behalf of Ms. Ragsdale. Mr. Harris explained that the house was originally built by Ms. -in-law in a non-conforming location on the lot that
was not discovered until renovation plans were made, and that because the home has never been sold, an as-built survey had never been done until recently. Mr. Harris passed out a supplemental
graphic for clarification purposes, and stated that the cantilevered bathrooms shown on the plan are within the drip line of the existing roof. Mr. Harris explained that given the conditions
at Figure Eight Island and in relation to past storms, it is not unusual for a 30 year old home to undergo extensive renovations. He stated that it is a major scope of work that is being
undertaken and is not much less expensive than demolishing the home; however, renovation is the ultimate form of recycling and that this is an opportunity to update and refurbish the
home and prepare it for the next 30 years on Figure Eight Island. Mr. Harris explained that theoretically the home could be demolished and a new one could be built in a conforming manner,
but to do so would impact the site with erosion problems, as well as adding extra material to the landfill, and that the carbon foot-print for the scope of work to rebuild as opposed
to renovating would be significantly greater than the actual financial cost. Mr. Harris believes that renovating the house is the environmentally right thing to do and is in keeping
with the spirit of variance requests. Mr. Carmen Gintoli asked if renovations were interior only or if space would be added. Mr. Harris explained that conditioned areas would be added
added but would be contained within the scope of the roof, and that although he would be adding space to a building already encroaching, it would not further exceed that encroachment,
and that the renovations were planned for the second floor. Mr. Peter DeVita asked if the second floor encroaches into the setback as well. Mr. Harris stated that it did, that the house
is a square building and that the second and third floors rise straight up. Mr. DeVita recapitulated that the request then is not only for a variance for the existing encroachment, but
also for a variance to expand the house in the same footprint of encroachment. Mr. Harris stated that was correct and repeated that the area is within the drip-line of the roof. Mr.
DeVita asked if a roof overhang b Mr. Harris stated that the roof overhang is not part
of the side yard encroachment. Ms. Hines concurred and stated customary roof overhangs and eaves are essentially ignored if they are self supporting; however, cantilevered floor space
would require a setback, as well as any construction supports such as posts or bracing.
3 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 speak in opposition to the
variance request, and there was no further discussion. Board Decision 1. Emily Ragsdale, 317 Beach Road North, Figure Eight Island, is requesting a variance from the side setbacks of
New Hanover County Zoning Ordinance, Section 51-2 to renovate an existing residence. Property is zoned R20S. Case No. ZBA-799. 2. On a motion by Mr. DeVita and seconded by Mr. Lee, the
Board voted unanimously to GRANT the variance request based on findings of fact and other evidence presented. The second case before the Board was as follows: Karen and Andy Penry, 44
Beach Road South, Figure Eight Island, are requesting a variance from the front setback requirements of New Hanover County Zoning Ordinance, Section 51-2 for a proposed new single family
residence to allow front entry steps in the setback area. Property is zoned R-20S. Case No. ZBA-780. 780. Mr. Furman called Ms. Ann Hines to give an overview of the case. Ms. Hines stated
that a variance is being sought for a �
�comptemplated because the lot lies partially within a VE flood zone
and that additional height alone would cause the steps to project further from the house. There is also a CAMA related setback from the ocean that pushes the house further towards the
street. Ms. Hines directed the board to address istribu
ted at the start of the meeting. Mr. Furman called the appellant and those to speak in favor granting the variance request to come forward to be sworn or affirmed. Mr. John Farabow was
sworn in. Mr. Farabow stated that he was the architect of record for the proposed house. He explained that the property is located in three different VE flood zones and based on the
location of the CAMA setback from the first line of stable vegetation, the house has a very limited amount of depth available, app�
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proposed construction. Mr. Farabow stated that when attempting to incorporate
the steps into the house, it was believed that a variance would be a more favorable request in lieu of increasing the amount of impervious area by trying to keep the last two steps into
the setback. By doing so, several feet of impervious space space was added to the property, despite the hardship of setbacks. Mr. Farabow discussed the main entry step that flairs in
both directions. Two tread and two risers are in the setback area. He stated that the height issues and setbacks forced the decision to request a variance. He asked the Board to note
that the adjacent property has a similar variance. Mr.
4 Farabow stated that adjacent properties as well as the Home Owners Association have no objections to the variance request. Mr. DeVita asked if there were any Home Owners Association
documentation approving the variance. Mr. Farabow stated that the Home Owners Association has first requested County approval, and would be approved afterwards by the Figure Eight Island
ARC and the Figure Eight Board of Directors.
questioned why construction was not pushed back further. Mr. Farabow explained that the back left corner of construction would then be right on the CAMA
setback line. �
�back of the house. Mr. Farabow stated that is was his understanding that the Figure Eight Homeowners Association required all overhangs had to be within the setback. Mr. Farabow
stated that the second floor is cantilevered very close to the setback. Mr. Gintoli asked if the stairs could be rotated 90 degrees. Mr. Farabow stated that the walk would have to be
extended and turned back which would add further impervious area to the site, which they are trying to minimize in combination of stormwater issues. Mr. Gintoli asked for the current
percentage of impervious area. Mr. Farabow stated that with respect to buildable area the site is at approximately 98%. Mr. DeVita asked if reconfiguration of the front steps such as
a patio area with fill unattached to the stairs had been considered. Mr. Farabow reiterated that because the area would have to be extended it would increase the amount of impervious
area. Mr. Lee asked if the variance was being sought for aesthetic reasons and Mr. Farabow concurred. �
� Mr. Farabow stated that the property has been graded as much as possible and that the entire front portion of the lot
contains four different septic tanks. After further questions pertaining to grade, Mr. Farabow explained that he is attempting to maintain a level grade coming off the bottom riser.
Mr. Lee asked if there was any overhang protruding over the steps and into the setback. Mr. Farabow stated no.
5 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 speak in opposition to the
variance request, and there was no further discussion. Board Deliberation Mr. Lee stated that this type of situation often occurs, and that this particular matter is a legitimate hardship
from his perspective. He stated that although part of the reason for the variance request is seemingly to maintain aesthetic qualities, he agrees that it is important to be able to maintain
a is
in keeping with the spirit of a variance request. Mr. DeVita stated that historically the Board has difficulty granting variances for hardships that are self-created, however, he recognizes
that sometimes there are extenuating circumstances in that CAMA and other regulatory agencies restrict and limit options on what can be done. Mr. DeVita feels that these same restrictions
apply to this case. Board Decision 1. Karen and Andy Penry, 44 Beach Road South, Figure Eight Island, are requesting a variance from the front setback requirements of New Hanover County
Zoning Ordinance, Section 51-2 for a proposed new single family residence to allow front entry steps in the setback area. Property is zoned R-20S. Case No. ZBA-780. 2. On a motion by
Mr. DeVita and seconded by Mr. Lee, the Board voted unanimously to GRANT the variance request based on findings of fact and other evidence presented. Change in Agenda Order Ms. Ann Hines
addressed the Board to request consideration of a change in the order of the agenda. She explained that the remaining agenda items are for a variance that has been continued from the
last meeting, and also an appeal of a previous matter. She stated that ordinarily the Board would hear the variance request last, but perhaps a change in order would be more beneficial.
Ms. Hines also explained that the court reporter present for the appeal case would need time to set up equipment. Mr. DeVita moved to hear the variance request before the appeal and
was seconded by Mr. Lee. The motion passed unanimously. The third case before the Board was as follows: Michael J. Pennock and Michelle A. Shipp-Pennock, 114 Balsam Drive, are requesting
a variance from the setback requirements of New Hanover County Zoning Ordinance, Section 52.5-2 to construct a garage/workshop on the lot behind their residence. Property is zone R-15.
Case No. ZBA-798 (continued from January 23, 2007 meeting). Mr. Furman called Ms. Ann Hines to give an overview of the case.
6 Ms. Hines stated that Mr. & Mrs. Pennock are the owners of the residence located at 114 Balsam
because a full quorum could not be seated and a vote of four-fifths is required for a variance.
Ms. Hines explained that because the composition of the board had changed it would be necessary to review the case from the beginning. Ms. Hines stated the lot is zoned R-15 and includes
an existing home. The property owners would tached garage behind the house. Ms. Hines explained that since the
setback could not apply in this
case. She explained to the Board that an outbuilding in excess of of 600 square feet would have to meet the same setback requirements as the existing home, in this �
� Ms. Hines also explained that other logistical problems exist on the lot such
as septic lines that run across the middle of the yard and overhead power lines that cross the yard, as well as a power pole positioned in front of where the garage could be located
and thus limiting accessibility to the building. Mr. Furman called the appellant and those to speak in favor granting the variance request to come forward to be sworn or affirmed. Mr.
& Mrs. Pennock were sworn in. Mr. & Mrs. Pennock distributed supplemental material including photographs. The photographs showed adjacent properties and the location of the power pole.
Ms. Pennock explained that in the past an addition had been added to the rear of the house and instead of relocating the outside meter box, the power line had been run across the yard
to a second power pole and then back again to a conduit going through the roof and finally to a meter box that is located on the back porch of the house. There was a question from Mr.
DeVita if an easement had been granted to do such. Mrs. Pennock stated that the work had been done by the previous owners and did not know if such an easement existed. Mrs. Pennock directed
the Board to a photograph showing a flagged septic line. She stated that when she and her husband bought the home, they were led to believe that the property utilized county sewer services
and did not find out about the septic system until the day of real estate closure. Mr. Pennock added that county sewer services stop approximately three blocks from their neighborhood.
Mrs. Pennock stated that the final picture shows the proposed location of the garage, placed at the northwest corner of the lot. She stated that it was the only location at the rear
of the property where the garage could be reasonably located. Ms. Ms. Pennock explained that if the garage were moved to a location allowing appropriate setbacks, the distance between
the edge of the slab and the power line �
�line. Mr. DeVita asked if Progress Energy had been contacted to explore the option of moving power pole.
7 Mr. Pennock stated it would cost several thousand dollars and would include moving the meter box. Mrs. Pennock added that she estimated the cost to be approximately five or six thousand
dollars to include moving the meter box to the far side of the lot, moving all power lines back to that side and then running the power back along the house to get to the breaker box.
Mrs. Pennock believed that the extensive cost is the reason that the conduit had been run through the roof in the first place. Mr. DeVita suggested running the power line down the pole
and underground to the existing meter box. Mrs. Pennock said that they have considered that option and would like to do so in the future but the financial cost prevents them from doing
so at this time. There was further discussion about moving the pole and tying into the meter. Mr. Jones stated that at some point power lines would eventually have to be buried. The
Board agreed and discussion ensued regarding the prohibitive cost. Mr. Lee asked if the garage could be moved closer to the septic area.
Pennock added that moving the building closer to the septic
area would essentially render the backyard unusable. Mr. DeVita asked if the building had been purchased. Mrs. Pennock stated yes, and that a 10% deposit is requested to purchase engineered
plans that are required for a building permit. Chairman Furman asked if the plans had been bought before it was discovered that septic lines existed. Mrs. Pennock stated that they had
begun research on the garage before they found out about the septic system. Mr. Lee asked how much had been spent on plans for the garage. Mr. Pennock advised that $2,000 has been spent
up to this point. Mr. DeVita questioned if a smaller building could be constructed. Mrs. Pennock stated that her husbands tools are currently stored in an area that occupies approx�
�enough room to
use the equipment. She also explained that if the dimensions were changed it would require the building plan to be reengineered. Further discussion included the option of a planting
buffer as a conditional requirement. Mrs. Pennock stated that she would be agreeable to any buffers imposed and noted that there is an existing partial fence along the rear of the property.
She added that the adjacent neighbor, Mr. Reed, has agreed to share the cost of installing a privacy fence between properties that would essentially serve as a buffer requirement. The
Board discussed a letter included in the supplemental information that Mrs. Pennock had distributed. The letter is from Mr. Reed, adjacent property
8 owner, who has agreed to share in the cost of installing a fence and is supportive of the variance request. Mrs. Pennock expressed concern that Mr. Reed would be held accountable if
installing the fence was made a condition of the variance.
a letter of no objection to the variance. With no further questions, the Board called for a vote. Board Decision 1. Michael
J. Pennock and Michelle A. Shipp-Pennock, 114 Balsam Drive, are requesting a variance from the setback requirements of New Hanover County Zoning Ordinance, Section 52.5-2 to construct
a garage/workshop on the lot behind their residence. Property is zone R-15. Case No. ZBA-798 (continued from January 23, 2007 meeting). 2. On a motion by Mr. DeVita and seconded by Mr.
Lee, the Board voted unanimously to GRANT the variance request based on findings of fact and other evidence presented. Mr. Jones moved for a 10-minute recess and was seconded by Mr.
DeVita. The motion passed with a unanimous vote. The fourth case before the Board was as follows: Violet P. Ward and David Ward, 1512 Burnett Road, are asking for a reconsideration of
the Zoning B-793 (November 28, 2006) that a forklift could be used at a commercial marina
without changing the character of the use. Property is zoned R-15. Case No. 801. Mr. Furman called Ms. Ann Hines to give an overview of the case. Ms. Hines stated that the issue of the
commercial marina on Burnett Road has been back and forth to this board and to court for several years. She explained that the owners at 1512 Burnett Road have a Special Use Permit that
was issued in 1971 to Homer Ward. The Board of Adjustment has previously ruled that the permit is valid, and has also upheld prior staff approval of an administrative approval of plan
modifications to the marina (Case No. ZBA-90). David and Violet Ward are adjacent property owners and have currently appealed that determination to the Superior Court, from which a decision
is still pending. Ms. Hines explained that in a subsequent meeting, another case came before the Board. Case No. ZBA-793 was for an appeal filed by the marina property owners from county
staff determination that a forklift could not be used at the marina. The Board upheld the appeal and overturned staff decision with a unanimous vote by stating that the Special Use Permit
did not restrict a forklift.
9 Ms. Hines stated that the case tonight has been brought forth by David and Violet Ward, who are asking the Board to reconsider the two previous decisions as they contend that neither
decision is consistent with the other. The basis of the complaint is from a statement of findings of fact made in Case No. ZBA-790, that references the absence of a dry-stack boat storage
building or proposed use of a forklift from the staff-approved plan. Ms. Hines advised that the appellants in this case are attaching a considerable amount of weight to what the Board
said in the first order, and that they would like the Board to reconsider one or both cases.
case
procedure for the case to be brought back to the Board with no new evidence. Chairman
Furman called for the opinion of Mr. Andy Olsen, serving as Counsel to the Board. Mr. Andy Olsen referred to rule V D4 of the Rules of Procedure for the Board of Adjustment which
-hearing should initially be limited to that which is necessary to enable the
board to determine whether there has been a substantial change in the facts, evidence or conditions in the case. A rehearing shall be denied by the Board if in its �
� Mr. Olsen stated that
letter serving as a Notice of Reappeal was submitted on February 8, 2007 and has been supplemented by another letter dated February 23, 2007, in in which the appellants claim that the
findings of fact from Case No. ZBA-790 is to be characterized as new evidence. Mr. Olsen advised the Board to determine if either letter constitutes new evidence, or if it could have
been included in the evidence submitted previously. He explained that evidence cannot be submitted at a later date if found that it could have been reasonably submitted at the time of
the prior hearing. Mr. Olsen cautioned the Board to determine that if it is in fact found that the evidence could not have been reasonably submitted at the appropriate time, is the proposed
evidence that is being submitted sufficient enough to change the results of the case? Board Deliberation Mr. DeVita stated that the Board has heard this case before and that there does
not appear to be any substantial change. Mr. Lee asked for clarification. The Board discussed the additional information submitted but did not feel that it presented any new evidence.
Mr. DeVita stated that the correct venue to hear this case is a court of law rather than continue to ask the Board to arbitrate between the two factions. Mr. Lee stated that he has been
present on all subject cases and felt that ample opportunity had been given to submit information. He stated that he did not recognize any new facts, only statements, and to the extent
that they could have been construed to be new facts, again, every opportunity had been given to present them. There was further discussion regarding the change of character of the marina
from the time it was approved unto present day. Mr. DeVita stated that previous Boards have ruled in favor of the marina over the years, and that he did not see how the current Board
could make a determination that would reverse all previous decisions. Mr. DeVita reiterated that the proper venue to hear this case is in a court.
10 Mr. Olsen stated that the reason that the rehearing provision is included the Rules of Procedure is because the law does not like to see a board or court reverse itself on a decision
that has already been made, in this case, ZBA-793. Mr. Olsen explained that a rehearing is provided only when it is found that there is new evidence that could not reasonably have been
previously submitted. Chairman Furman reminded those present that at the beginning of each meeting he stipulates that appellants have thirty days in which to appeal any decision made
by the Board to Superior Court, and that he feels that there has been ample time to submit new evidence. He stated that if their decision is to be overturned, it should be done so by
the Superior Court. There was discussion regarding opening the meeting up to the public. Mr. Lee felt that it would be fair to allow the appellant to address the Board with a concise
statement. Mr. Furman called the appellant and those to speak in favor granting the variance request to come forward to be sworn or affirmed. Mr. David Ward was sworn in. Mr. Ward stated
that he feels that there are differences between the two cases and that the evidence itself lies in the inconsistency of both cases. Mr. Ward claimed that he did not understand what
the decision
of Case No. ZBA-793 was going to state until he received a hard copy in the mail. Mr. �
�to be used at the marina. Mr. Ward stated that the previous order stated that to move boats to
and from the water would be a considered change in character and that is what he is contesting. The Board thanked Mr. Ward for his statement and called for a vote. Board Decision 1.
Violet P. Ward and David Ward, 1512 Burnett Road, are asking for a reconsideration of the -
793 (November 28, 2006) that a forklift could be used at a commercial marina without changing the character of the use. Property is zoned R-15. Case No. 801. 2. Mr. Lee moved to deny
the request for rehearing based on findings of fact that there is no new evidence to be presented to the Board. The motion was seconded by Mr. DeVita and passed unanimously. There being
no further business before the Board, it was properly moved and seconded to adjourn the meeting. All ayes. Executive Secretary Chairman