ZBA-8-07
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 Center, 230
Government Center Drive, Human Resources Training Room B, Wilmington, NC, on August 28, 2007. Members Present Members Absent Mike Furman, Chairman Michael S. Jones Michael Lee, Vice-Chairman
Dan Weldon Brian Eckel Tim Fuller, Alternate Peter DeVita, Alternate Carmen Gintoli, Alternate Ex Officio Members Present Sharon Huffman, Assistant County Attorney Jay Graham, Director
of Inspection Services Ann S. Hines, Executive Secretary J. Steven Still, Acting Executive Secretary Hattie Moore, Clerk The meeting was called to order by the Chairman, Mr. Mike Furman.
Mr. Furman explained to all present that the Board is a quasi-judicial board appointed by the Board of Commissioners to consider zoning ordinance variances from residents in New Hanover
County where special conditions would create unnecessary hardships. The Board also hears hears appeals of the �
�thirty days in which to appeal any decision made by the Board to Superior Court.
It was properly moved by Mr. Lee and seconded by Mr. Eckel to accept the minutes of the July 24, 2007 (2 abstained; Mr. Gintoli and Mr. DeVita) The Chairman swore in County staff, Ms.
Ann S. Hines. THE FIRST AND ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: Stephany Suzann Schutte, 5308 Crystal Court, is requesting a variance from the internal setback requirements of
New Hanover County Zoning Ordinance, Section 51-2 (2) for a detached residential garage. Property is zoned R-10 (Performance Residential). Case No. ZBA-811 Mr. Furman called for those
to speak on granting the variance request to come forward to be sworn or affirmed for testimony. The Chairman swore in the following: Mr. Walter Wallace Mrs. Suzann Schutte Mr. J.C.
Hearne Mrs. Tammie Helm Mr. Brian Helm
2 Mr. Furman called Ms. Hines to give an overview of the case. Mr. Hines stated that Mr. and Mrs. Schutte are the owners of the residence at 5308 Crystal Court in the Waterford Place
subdivision near Monkey Junction. Ms. Hines said Mr. and Mrs. Schutte were in the process of selling the property and buying a new home when a survey showed that a detached garage built
in 2004 had been built in the wrong place on the lot. She said this is a Performance Residential subdivision where the setback requirements between residences is 10 feet and for outbuildings
the requirement is 5 feet from any other buildings on the lot. She said on the building permit it appeared that the garage was going to be built in the right place, but the contractor
made a decision to move it forward on the lot and instead of being 5 feet from the house the garage was placed so close to the house that the two roofs overlap. Ms. Hines said the setback
from the but it does encroach o She said that encroachment
is being resolved among the parties and the County has no problem with that issue. Ms. Hines said the only request before the Board is to vary that setback between the house and detached
garage so that the garage can remain in the same place. She said Mrs. Schutte tried to do the right thing and the Building Inspector who checked this structure twice during the course
of construction did not pick up on the error. Ms. Hines said the garage was completed and a final inspection was not performed but the Building Inspector checked the building and found
it to be structurally sound. She said there is not a code violation with it being so close in proximity to the house and the only issue is the Zoning Ordinance requirement of 5 feet
of spacing. ative to
to the survey. Ms. Hines said the Building Inspectors are supposed to check that when they do the first inspection which is the footing inspection. Ms. Hines also added that in two recent
North Carolina court cases (Turik v. Town of Surf City and Stealth Properties v. Town of Pinebluff Board of Adjustment), the Court of Appeals found that a hardship was not self-imposed
when the respective property owners had built structures in the wrong place, one in reliance on a faulty land survey and the other in reliance on inspection department errors in not
recognizing setback discrepancies. She said unless and until the Supreme Court overturns these cases, they may have set precedents that are to this case--where the owner relied on her
contractor, who made errors, and where the Inspection Department did not pick up on those errors until after the building was essentially completed. Ms. Hines also mentioned that Jay
Graham, the Inspection Director was present and could also answer questions, if needed. Mr. Eckel asked if the accessory structure could be attached and still have a 5 foot setback.
Ms. Hines explained that if the structure was attached to the house it becomes a part of the house. She said the spacing requirement
is 10 feet and they only have 9ft 4 inches. Mr. DeVita asked if the utility building was there when they were building the garage. He said maybe the contractor
moved the garage forward to maintain a minimum distance from that utility building. Ms. Hines said she did not know. She also said there is a small framed utility building on skids that
is partially in a drainage easement in the back end of the lot and it has either been removed or will be removed soon. The Chairman called for any others that wish to speak to come forward.
3 Mr. J.C. Hearne said he is the attorney representing the applicants and he proceeded to go through and address each item of the findings of fact. 1.
ordinance, specifically, Section 62-1 and 52.2(2),
she cannot secure a reasonable return from, or make reasonable use of their property. This conclusion is based on the following FINDINGS OF FACT: Mr. Hearne said the worst case scenario
would be that the garage would have to be torn down. He said his client is reliant upon the sale of her house in order to purchase the house and one of the main reasons the buyers want
the house is because of the garage. He said 90 % of the homes there have garages. 2. at the hardship of which the applicant
complains results �
�following FINDINGS OF FACT: Mr. Hearne said this is a pie shaped lot with a 30 foot drainage easement across the back, a 15 foot drainage easement on one side of the property and
a 10 foot utility easement on the other side. He said a significant portion is under the easements and another structure would not be allowed there. He said there is only a small segment
of the property where this garage can be placed. 3. �
�actions. This conclusion is based on the following FINDINGS OF FACT: Mr. Hearne said the applicant hired a licensed contractor who took the permit application
to the County and it was approved. He said the garage was inspected twice by the County and finished in 2004. He said his client followed all the rules and the error was not discovered
until the survey was done. 4. �
�general purpose and intent of the ordinance and will preserve its spirit. This conclusion is based on all the FINDINGS OF FACT listed above, as well as the following Mr. Hearne
said the building is a permitted use, the building does not increase the density of the development and the building meets the 5 foot setback from the
5. e variance will secure the public safety and welfare and will do substantial justice.
This conclusion is based on all of the FINDINGS OF FACT listed above, as well as the following: �
�. He said
agreement said the applicant relied on
the contractor who in turn relied on the County.
4 Mr. Hearne then called Mrs. Suzann Schutte to testify. Mrs. Schutte stated she relied completely on a contractor to do what he was supposed to do and 4 years later she found out that
she is in violation with the County. Ms. Schutte said the buyers were present at the meeting tonight and they still want to purchase her house. She said the garage is the selling point
and to tear it down is not an option, financially. She said the shed behind the garage is on cinder blocks and she told the builder to move it, if needed. Mrs. Schutte called her neighbor,
Mrs. Tammie Helm to speak.
they did not contest the garage when it was built four years ago because it has a nice privacy screen between the houses. Mr. Walter Wallace stated he lives on
the other side of Mr. and Mrs. Schutte. He said Mrs. Schutte did everything correctly and they have buyers for the house that want to keep the garage. He asked the Board to help them
do what they want to do. Mr. Furman called for those to speak in opposition to granting the variance request to come forward to be sworn for testimony. There was no one present to speak
in opposition to granting the variance request. Board Decision: 1. Stephany Suzann Schutte, 5308 Crystal Court, is requesting a variance from the internal setback requirements of New
Hanover County Zoning Ordinance, Section 51-2 (2) for a detached residential garage. Property is zoned R-10 (Performance Residential). Case No. ZBA-811 2. On a motion by Mr. Lee and
seconded by Mr. DeVita, the Board voted unanimously to GRANT the variance based on the findings of fact. Board Business Ms. Hines said a few months ago the Board discussed making changes
in the rules of procedure to address absences and what constitutes an excused absence. She said there is still a need for the Board to handle that. Ms. Hines informed them that there
was difficulty getting five members to serve tonight and she thanked Mr. Gintoli for filling in at the last minute. Mr. Lee said there is an existing policy in place but the question
is still what is excused and unexcused. Mr. Lee also said it should be left to the Chairman to respond to that decision. Ms. Hines asked the Board if they feel that the current policy
is adequate or if there is a need to add more to what is in place now. Mr. DeVita suggested asking the existing regular members if any of them feel they cannot serve and if there is
someone, then they should be appointed as an alternate and get someone that can serve. Mr. Furman suggested sending a letter to all the Board members including alternates.
5 Mr. Lee suggested that at least one alternate should be in attendance at the meetings due to things happen and the alternate can see what happens at the meetings, for the experience.
Mr. Furman agreed that it would be better if there was an alternate on hand at the meetings. Ms. Hines said it needs to be defined what constitutes an excused and unexcused absence.
Ms. Huffman said the rule states a member can only miss 25% of the meetings. She said the rule also states that if a member has unexcused absences from more than 25% of the Board meetings
in a calendar year, they may be asked to resign and if the member refuses to resign they can be dismissed by the Board of Commissioners. Ms. Huffman said excused absences are defined
as
the Chairman should ask them if they would like to resign because if they miss another meeting the Chairman would have to go to the County Commissioners to have them dismissed. Mr. Eckel
said the rules in place now should be enforced. Mr. Furman said as Chairman, he will get together with Ms. Hines to find out the member or members that have continued absences and he
will contact them and keep a record of the discussion. There being no further business before the Board, it was properly moved by Mr. Eckel and seconded by Mr. Lee to adjourn the meeting.
All ayes Executive Secretary Chairman