ZBA 10-08
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 County Government Center,
230 Government Center Drive, Human Resources Training Room B, Wilmington, NC, on October 28, 2008. Members Present Members Absent Michael S. Jones, Chairman Dan Weldon Robert Cameron,
Jr. Carmen Gintoli, Alternate Eric Hickman Peter DeVita, Alternate Peyton Williams Tim Fuller, Alternate Ex Officio Members Present Sharon Huffman, Assistant County Attorney Andy Olsen,
Attorney Ann Hines, Executive Secretary Linda E. Painter, Zoning Enforcement Official Hattie Moore, Clerk The meeting was called to order by the Chairman, Mr. Michael S. Jones. Mr. Jones
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. He said the Board also hears appeals of the
days in which to appeal any decision made by the Board to Superior Court.
It was properly moved by Mr. Cameron and seconded by Mr. Williams to accept the minutes from both the August 26, 2008 and September 23, 2008 Board meetings. All ayes. THE FIRST CASE
BEFORE THE BOARD WAS AS FOLLOWS: Cheryl Ruth Aguilar, 305 Godfrey Court, is requesting a variance from the minimum parking requirements of New Hanover County Zoning Ordinance Section
72-20 (1) (2) for an in-home child daycare facility. The property is zoned R-15. Case No. ZBA-834 Mr. Jones swore in County staff Ms. Ann S. Hines and Ms. Linda E. Painter. The Chairman
called Ms. Painter to give an overview of the case. Ms. Painter stated Ms. Cheryl Ruth Aguilar operates an in-home child daycare facility at 305 Godfrey Court which is s single family
family lot zoned R-15 Residential. Ms. Painter stated Ms. Aguilar wishes to increase the number of children she keeps from five to eight, which triggers the need for a special use permit.
She said the applicant states that she has no employees. Ms Painter said Zoning Ordinance Section 72-20(1)(2) calls for a minimum of four off-street drop-off and pickup spaces, and Ms.
Aguilar states that her pie-shaped lot, located on a cul-de-sac keeps her from providing four completely unblocked parking spaces, and further keeps her from providing a turnabout area
on the lot. She said Ms. Aguilar has a two-car garage, which does meet the Ordinance requirement for parking but the
2 issue is the four off-street loading spaces. Ms Painter said the applicant stated that it is possible for two or more cars to pull into her driveway and then back into the street when
leaving and she has provided a statement of no objection with signatures of neighboring property owners. Ms. Painter said if the Board gran
apply for the special use permit and go before the Planning Board and County
Commissioners. She said the Planning staff directed Ms. Aguilar to our office to apply for the parking variance first, since the Commissioners cannot vary the minimum Ordinance requirements
when considering a special use permit. Ms. Painter said proposed findings of fact were submitted along with the application and all interested parties have been notified, including all
surrounding property owners. Mr. Jones called for those to speak in favor of granting the variance request to come forward to be sworn or affirmed for testimony. The Chairman swore in
Ms. Cheryl Ruth Aguilar, Ms. Shirquania Pearce, Mr. Floyd Pearce, Ms. Tamika Martin and Jalen Scott. Ms. Aguilar stated that she has been in the in-home child daycare business for eleven
years. She then referred to Jalen Scott who she said has been attending her daycare since 6 weeks of age and he is presently 6 years of age. Ms. Aguilar said she is requesting to add
three additional school age children that she would pick up and bring back to her facility. She said her neighborhood is safe and she has not had any problems with her neighbors because
most of them are her clients. Mr. Jones asked if all the children would be after school. Ms. Aguilar said she has three after school children and her hours are from 6:00 am to 5:00 pm
and the after school would run to 5:30 pm. Ms. Aguilar then presented additional photos in support of her case. Mr. Cameron asked Ms. Aguilar if she plans to hire anyone to help her.
Ms. Aguilar said she would not need to hire anyone and she would meet the ratio requirements with the three additional school age children. Jalen Scott expressed that he is happy at
the daycare. His mother Ms. Tamika Martin stated that she would love it if Ms. Aguilar could get the variance because it would be a great help to her and Jalen. Mr. Jones asked Ms. Aguilar
if she would take the other children with her when she picked up the school aged children. Ms. Aguilar answered yes and further explained that the parents meet her at the school where
her daughter attends and she picks them up at that location. Board Decision: 1. Cheryl Ruth Aguilar, 305 Godfrey Court, is requesting a variance from the minimum parking requirements
of New Hanover County Zoning Ordinance Section 72-20 (1) (2) for an in-home child daycare facility. The property is zoned R-15. Case No. ZBA-834 2. On a motion by Mr. Cameron and seconded
by Mr. Williams the Board voted unanimously to GRANT the variance request.
3 THE SECOND CASE BEFORE THE BOARD WAS AS FOLLOWS: Bernard Hobson Musselwhite, 5616 Myrtle Grove Road, is requesting a variance from the setback requirements of New Hanover County Zoning
Ordinance, Section 52.5-2 (5) for an existing detached garage. Case No. ZBA-830. (Continued from the September 23, 2008 meeting) The Chairman called Ms. Hines to give an overview of
the case. Ms. Hines stated Mr. Musselwhite resides at 5616 Myrtle Grove Road which is a single family lot zoned R-15 Residential and has a detached accessory structure or garage on the
northwest (rear) corner of the lot. Ms. Hine said pursuant to a complaint of building setback violations and a building constructed without permits from the neighbor to the rear, Inspections
staff contacted Mr. Musselwhite and researched the permit history for this property. She said staff observed that the building appears to be located closer than the required 20 feet
from the rear property line. She said the building shows up on aerial photography going back several years, but not so far back as the initial zoning of the area on April 7, 1971 and
therefore, it cannot be considered a nonconforming or grandfathered structure. Ms Hines said Mr. Musselwhite states that the larger front portion of the building was added later by a
Mr. Register who bought the property from him some years ago; however, when Mr. Register became ill and passed away Mr. Musselwhite reacquired the property. Ms. Hines said the complainant,
Mr. J. B. Piner, has provided photography
submitted shows the current location of the building, but not necessarily an accurate depiction of the property lines. She said the property lines are overlaid from the County Tax Maps,
which are not maps of survey. Ms. Hines said historic aerials clearly show the building in 1998, but do not show an outbuilding on that spot in 1981 and 1966. Ms. Hines said Mr. Musselwhite
is requesting a variance to leave the accessory building in its present location, which he indicates is slightly over 10 feet from both the rear and nearest side property lines. She
said he does not have an as-built survey to show this with more accuracy and Mr. Musselwhite did not submit findings of fact. Ms. Hines said all interested parties have been notified
including all surrounding property owners. Mr. Jones called for those to speak in favor of granting the variance request to come forward to be sworn or affirmed for testimony. The Chairman
swore in Mr. Bernard Musselwhite. Mr. Musselwhite stated when he purchased the property the building was not there. He said he kept the house for a few years and then sold it to Mr.
Register. He said when Mr. Register became ill he purchased the house from him and the first building was there when he moved back into the house. He �
�from the building and the building is not visible from Mr. . Mr. Musselwhite said he does not want to have to get
rid of his shop and the only thing he has done to the building is to put siding on it. Mr. Jones asked if the building is one or two story. He also asked the square footage of the building.
Mr. Musselwhite said the building is one story and he does not know the square footage. Mr. Jones asked if a survey had been done. Ms. Hines said the cost of getting a survey done is
a part of the issue. She said they have measurements that Mr. Musselwhite gave which are
Ms. Hines pointed out on the aerial photograph where the properties
4 are located and she informed the Board that the aerials are actually maps from the Tax maps which are used to view acreage. Mr. Fuller asked Mr. Musselwhite if it was possible to remove
the rear section of the building and bring the building into compliance. Mr. Musselwhite said the entire building would have to be torn down in order to remove the addition. Ms. Hines
explained that smaller out buildings 600 sq. ft. or less, only have to be 5 ft. off the property line and the original building was 12 x 28 but the addition made the old part illegal.
Mr. Jones asked what presently surrounds the building because it appeared from the photos that some of the brush had been removed. He also asked if there was power and water going to
the building. Mr. Musselwhite said there is a fence and some trees and the A-frame part has power but not water. He said he uses the building to park his vehicle and watch television.
The Chairman called those to speak in opposition to the variance request to come forward to be sworn or affirmed for testimony. Mr. Jones swore in Mr. J. B. Piner, Mr. George Owen Piner
and Mr. Holt Moore III. Mr. Moore stated he is an attorney representing Mr. Piner. He then passed out his exhibit packet to the Board and Mr. Musselwhite. Mr. Moore asked Mr. Piner to
state his full name and address for the record. Mr. Piner said his name is J.B. Piner and he lives at 5614 Myrtle Grove Road. Mr. Moore asked Mr. Piner where he lives in relation to
the subject property and Mr. Piner said he is west of that property. Mr. Moore asked Mr. Piner if Exhibit A shows the subject property marked by an X and also if it shows any vegetation.
Mr. Piner said that it is the subject property and it does not show any vegetation because it has been removed. Mr. Moore asked Mr. Piner how long he has lived on that property and Mr.
Piner answered all his life. Mr. Moore asked when Mr. Musselwhite moved onto the subject property and Mr. Piner said he believes it was 1977. Mr. Moore asked Mr. Piner if he has been
involved in in any court proceedings with Mr. Musaselwhite and Mr. Piner answered yes. Mr. Moore asked Mr. Piner if Exhibit B some of the court matters and Mr. Piner answered yes. Mr.
Moore asked Mr. Piner to explain the photographs. Mr. Piner referred to page 2. He said the property line is the oak tree and the property to the west is his property. He also said all
the clearing done by Mr. Musselwhite is actually on his property. Mr. Piner
5 pointed out the two roofs on the shed and also the new addition that he said was added by Mr. Musselwhite. Mr. Piner said the other roof could not be added to the original roof so
Mr. Musselwhite added a tin roof on top of the old roof which is shown on Exhibit D. Mr. Piner mentioned that the shed has been painted since then and there was so much growth that the
addition could not be seen. Mr. Piner continued on to Exhibit G which, he said is more examples of the building and Exhibit H shows the fence he had to install because people visiting
Mr. Musselwhite was using their road. Mr. Moore asked Mr. Piner if Exhibits A1 and A2 copies of deeds he has obtained from the Register of Deeds and Mr. Piner answered yes. Mr. Moore
said Exhibit A1 shows transferring of the subject property from Mr. Musselwhite to Mr. Register on June 3, 1980 and Exhibit A2 shows it was transferred back to Mr. Musselwhite on March
9, 1981. Mr. Moore asked Mr. Piner if he has specific recollection of the construction of the building. building. �
� Mr. Moore then presented proposed findings of fact to the Board. Mr. Musselwhite said he does not
know how Mr. Piner could say that he was not aware of the building because he said earlier that he saw him building it. Mr. Piner responded by stating that Mr. Musselwhite built the
A-frame first but they could not see the addition because of the overgrowth. He said they starting asking question after Mr. Musselwhite cleared the area and they saw the addition. PUBLIC
HEARING CLOSED Board Discussion Mr. Cameron said it would be helpful if they had a survey. Mr. Jones said in most of the photographs it shows the main A-frame building is within code
and the �
�the rear portion could be removed. Mr. Olsen said according to staff there is documentation that a building inspector made a ruling on August 20, 2008 that the existing
garage must be removed from the 20 ft. rule setback. Ms. Hines explained that the document Mr. Olsen is referring to is the Notice of Appeal. She said they had been in ongoing discussions
with Mr. Musselwhite about this building for a good while and trying to determine how far it was from the property line. Ms. Hines said there were other complaints which they eliminated
because they involved other enforcement agencies. She said an order had not been written to remove the building and when Mr. Musselwhite came in to apply for the variance, it was then
ordered that the building could not be within the 20 ft. setback. Mr. Olsen asked if the Zoning official made a determination that the building was in the setback. Ms. Hines said yes,
based on the measurements provided by Mr. Musselwhite. Mr. Fuller referred to number one on the findings of fact. He said it addresses securing a reasonable return from the property
and there is no indication that this has anything to do with the return or enjoyment of the property other than watching television. Mr. Fuller said number two on the findings
6 of fact addresses hardships resulting from unique circumstances of the land and there is no indication of that here. Mr. Fuller said he was confused as to what they could vote on.
Mr. Jones said the only thing the Board could vote on is for or against the variance. He said the Board could add stipulations if voting in favor of the variance but if voting against
granting the variance, the property owner still has other recourses. Mr. Jones said the building could still be reduced to be in compliance and also there is a 30 day appeal to Superior
Court. Board Decision 1. Bernard Hobson Musselwhite, 5616 Myrtle Grove Road, is requesting a variance from the setback requirements of New Hanover County Zoning Ordinance, Section 52.5-2
(5) for an existing detached garage. Case No. ZBA-830. (Continued from the September 23, 2008 meeting) 2. On a motion by Mr. Williams and seconded by Mr. Cameron the Board voted unanimously
to DENY the variance request. THE THIRD AND LAST CASE BEFORE THE BOARD WAS AS FOLLOWS: LJM Properties LLC, 5819 Carolina Beach Road,
determination that areas of the tract used in calculating density of development are properly shown as Class IV Soils on the County Soils Map, as addressed in New Hanover County
Zoning Ordinance, Section 51.5-2. Property is zoned R-15. Case No. ZBA-833. (Continued from the September 23, 2008 meeting) The Chairman called Ms. Hines to give an overview of the case.
Ms. Hines stated LJM Properties, LLC wishes to build a residential development on the tract located at 5819 Carolina Beach Road. She said the preliminary materials for a proposed Performance
Development subdivision layout and background was submitted for staff review by the Planning Department. Ms. Hines explained that Performance Development is characterized by relaxed
building setbacks and crafted based on the allowable density of development. She stated there are many factors that are used to calculate that density and the presence of Class IV soils
has a bearing on the calculation of density for Performance Development subdivisions. She said the Ordinance states that Class IV soils needs to be subtracted from the gross acreage
when calculating density and it makes reference to a document entitled Classification of Soils in New Hanover County for Septic Tanks Suitability. Ms. Hines said this is an old technical
report that was crafted in connection with the CAMA Land Use update and this version is dated 1980. She said Class IV soils are generally described as being wet and unsuitable for sewer
tanks and undesirable for building. She said in this case, there are sizeable areas of Class IV ssoils maps and Planning
staff has visited and revisited the site in order to fine tune that. She said the appellant brought in expertise to say that these soils should not be considered in the same way as Class
IV soils and should be subtracted from the site because they have been ditched and the water table was lowered. Ms. Hines said Planning staff went back to the site with soils experts
from the State and looked again at the soils. She said they considered the impact of the ditching and came to the same conclusion as before, that these are Pamlico Muck, which is one
of 4 types of Class IV soils. Ms. Hines said the applicant is �
�Ordinance.
7 Mr. Jones asked Ms. Hines if she knew the percentage of the site that is Class IV soils. Ms. Hines said it is a sizeable portion of the tract and half of the site would not be an exaggeration.
Mr. Jones called those to speak in favor of this appeal to come forward to be sworn or affirmed for testimony. He swore in Mr. Gary Craig Turner, Mr. Howard Resnick, and Mr. Thomas H.
Johnson, Jr. Mr. Johnson said he is a special counsel with Nexsen Pruet and is representing the appellant. Mr. Johnson said they are appealing the interpretation of the Ordinance under
Section 51.5-2 (11) and the , Planning Director. He first read a portion of Section 51.5-2 (11) of the Ordinance:
In calculating the density for a proposed development, the following areas first be subtracted from the gross area of land to be committed to developmenta
portion of subsection (b) all areas of Class IV soils as defined in A Classification of Soils in New Hanover County Mr. Johnson
said in 1984 when this Ordinance was enacted, rural New Hanover County did not have access to sewer and density was governed by whether or not sites were suitable for septic tanks. He
said this site is zoned R-15 Residential and the reason for the R-15 Residential zoning is to [Section 52.5-1]insure that residential development not having access to public water
and dependent upon septic tanks for sewage disposal will occur at sufficiently low densities to insure healthful environment. He then read a portion of the Foreword to the Classification
of Soils In New Hanover In New Hanover County the suitability of
Mr. Johnson said this provision only deals with the suitability
for septic tanks, not sewage systems. He read Section B -Purpose of the Classification System The purpose of the classification scheme is to assist developers and public agencies
in determining the probability that any given site will or will not be conductive to system tank disposal methods, at the earliest possible date in the development process. The system
is not designed to supersede onsite soil examinations for permit issuance. Mr. Johnson read under Section F. Limitations of the Classification System -While SCS (Soil Conservation Service)
representatives have repeatedly expressed their overall confidence in the level of accuracy of the survey, there is little doubt that great care must be taken not to overextend its capabilities,
or s, and the classification system is not intended
to supersede that necessary function. He also read under Section G. Conclusions The classification system is an effort to place appropriate public reviewing/permitting agencies on
the same footing regarding the general suitability of soils in New Hanover County for septic tanks. He read the definition of Class IV soils... a high ground water table is a primary
impediment to the use of on-site sewage disposal systems. The importance of the depth to the water table in determining soil suitability for septic tanks
have water tables at or above the soil surface during some part of the year.
He said what this site has that makes it different is that
normally be considered unsuitable for development, have been rendered capable in a septic development for septic tanks. Mr. Johnson said his first first argument is this entire section
is inapplicable for this situation because it is all based on septic systems and the use of septic systems which is not needed today because public sewer is available. Mr. Johnson called
Mr. Turner to speak. He asked Mr. Turner to state his name for the record, where he works along with his position and professional background. Mr. Turner said his name is Gary Craig
Turner. Mr. Turner said he is vice president at Land Management and also a licensed soil scientist. He said he has a BS and Masters in Soil Science from NC State; he has been employed
with USDA Soil Conservation Service, has been employed to assist in making the Soil Survey with New Hanover County in 1972, worked at International Paper Company
8 classifying soils for approximately eight years and started Land Management in 1990 along with three partners. Mr. Johnson asked Mr. Turner if he was familiar with the tract under
consideration here tonight. Mr. Turner said yes and he evaluated the tract and performed delineation for wetlands prior to the current owner acquiring it. Mr. Johnson asked Mr. Turner
to describe what he found when investigating this tract. Mr. Turner said they found that the ditches that run around the site had some impact and after bush hogging to cut some trails,
they were able to see some wet areas but because of the age and size of the tract it had not retained the moisture. Mr. Turner said they then moved to the next phase of characterizing
what is wet and what is dry using procedures from the US Army Corps of Engineers (USACE). He said they installed wells, and conducted a study from November 2005 through March 2007. He
said after they gave their findings to the US Army Corps of Engineers, the USACE went to the site and agreed with their conclusions. Mr. Turner said the southern portion was mapped Pamlico
Muck which is a poorly drainage soil; the northern end lacks drainage and is not a part of this project. Mr. Turner then pointed out on a PowerPoint presentation the project area, Pamlico
Muck, wells and ditches. He also pointed out an area that he said is the wetland boundary as approved by the US Army Corps of Engineers. He said all that area is mapped Pamlico soil
but it lacks a 12 inch hydrology. Mr. Turner said hydrology is defined as a water table within 12 inches of the soil surface for 5% of the growing season in New Hanover County and Class
IV soil, as defined on the water table, has to be between 12 inches below and 12 inches above the surface. Mr. Johnson asked Mr. Turner if he looked at other sites in the County to see
if any were similar to this site. Mr. Turner said he has looked at several areas in the County and referred to the area of Congleton Road which he said, is currently under development.
Mr. Johnson Johnson asked Mr. Turner if he was aware if the Congleton Road plan had been approved. Mr. Turner said the development plan has been presented to the County and was approved
because the roads are in, sewer taps are installed and a building pad area has been cleared and dug for a multi-family development. Mr. Turner said the Congleton tract of land has been
allowed to be developed and it is almost completely in Pamlico. Ms. Huffman asked Mr. Turner if his client is suggesting that they cannot develop the property because of Pamlico is on
it. Mr. Johnson said they have not been told that. Mr. Fuller said the developers for that property could have put a percentage of that property into conservation in order to meet the
County requirements. Ms. Huffman asked if there is a question that the soil being looked at in that particular area of the tract is Pamlico.
9 Mr. Turner said the issue is the southern end of this tract, which is now considered uplands, has organic soil features in the upper part but the hydrology is not there. He said they
are using a 25 to 30 Mr. Jones asked if the drainage was
modified and handled properly could the soil return to its natural form. Mr. Turner said there are some organics that will re-wet back up once they are dried out but some of the soil
at this location is very dry because the organic muck has oxidized. Ms. Huffman asked Mr. Turner how he would determine the soil class for a county other than New Hanover and if that
decision is determined by the state, county or by a national table. Mr. Turner said US Department of Agriculture (USDA) has published surveys for most of the counties. He said there
are published soil surveys in approximately 90% of the counties in North Carolina and the remaining 10% use use old surveys. Ms. Huffman said then it is not unusual for a county, such
as New Hanover County, to take information obtained from the USDA and NC Soil Service and create a document that classifies soils. Mr. Johnson objected saying this is speculation but
Mr. Olsen said Ms. Huffman was asking for why
the County would name so many soil types in the Class IV categories instead of using water depth. Mr. Turner said the reason is that they are tying it back to a common medium, which
is the soil survey. Mr. Jones said that may be done on a national level because you would not have the same soil types nationally, but it seems to be better on a county level to be more
in depth than generalized. Mr.
Jones asked what would make the 2 types of Pamlico different. Mr. Turner said Pamlico Muck is swampland and cannot be built on but upland Pamlico drain phase is worth a great amount
of money. Mr. Hickman asked how long the canal or ditch has been on the property. Mr. Turner said it was found on a 1964 photograph which predates the Clean Water Act and if they had
that data back in 1964 it never would have been considered wetland, also if the site had been cleared it would not be an issue. Mr. Hickman asked Mr. Turner if he has any statistical
data on how long it would take for a canal or ditch to affect the soil. Mr. Turner said there are several conditions such as land form, sedimentation, density of the structure, and vegetative
cover but a ditch starts draining the minute it is dug on a lot. Mr. Fuller asked if the County has a mechanism in place for adjusting the soil classification to reflect current conditions.
Mr. Olsen said the County has an adjustment through the County Commissioners on the recommendation of the Planning Director but the Board of Adjustment is where the ordinance is written.
10 Mr. Jones called for a recess. Following recess, Mr. Johnson said there is not a set process within the County Zoning Ordinance to change how a site is designated regarding the classification
of soils, other than doing studies and to petition the County Commissioners to make changes. He said their concern is that they are using a document that was drafted in 1984 for the
specific use of septic tanks. Mr. Fuller said the proper avenue to address that is through the County Commissioners for a text amendment to delete the references to septic tanks or to
change the way soil classifications are determined. Mr. Johnson said if it is only applicable to septic tanks �
� Mr. Olsen said this Board could not change the legislature. The Chairman called Ms. Huffman to resume her questioning. Ms. Huffman referred to page 4 in the Classification
of Soils in New Hanover County document and asked Mr. Turner if Pamlico Muck was listed under Class IV. Mr. Turner answered yes. Mr. Johnson referred to page 13 of the same document.
He asked Mr. Turner to read the last sentence in the third paragraph. Mr. Turner readThrough a�
�be considered unsuitable for development, have been rendered capable of accepting development. Mr. Johnson asked Mr. Turner if this site has
artificial drainage and Mr. Turner answered yes. Mr. Johnson also asked Mr. Turner to read an article that he said was printed from a County site regarding Hydric soils. [Original article
was taken from the US Department of Agriculture, Soil Conservation Service, Technical Guide, Section II-A-2, June 1991, Hydric Soils, New Hanover County, North Carolina.]
(1)Hydric soils, only because of saturation for a significant period during the growing season(2) Hydric soils that are frequently flooded for long or very long periods during the
growing season (3) Hydric soils that are ponded for long or very long periods during the growing
definition of hydric soils and wetlands because the hydrology has been altered through drainage
or other manipulation. Mr. Johnson asked Mr. Turner the definition of hydric soils. Mr. Turner said hyrdic soils are soils that are capable of producing wet species that have certain
morphological features with thicker flat surfaces, horizons below the surface, a certain amount of grade, anaerobic conditions, oxidation and reduction properties that show that the
back area is full of oxygenized water. Mr. Turner said it is typical when artificial drainage is installed for the water oxygen from the atmosphere to infiltrate through the soil surface
down and produce changes in iron accumulation.
11 Mr. Johnson asked Mr. Turner if the Pamlico on this site considered a hydric soil. Mr. Turner said yes and on this site it is oxidized and organic, and the water tale has been lowered.
Mr. Johnson asked if this changes the definition of whether it is hydric or not. Mr. Turner answered yes. He said some map units includes soils listed as hydric but may not fit the definition
of hydric soils in a wetlands because the hydrology has been altered through drainage. Mr. Turner said a map unit is nearly equivalent to a soil phase but it is not practical to show
on a map all the small bits of different soils that may have been seen, as in this case with the Pamlico. Mr. Johnson said in the manual under Class IV it lists Dorovan, Johnston, Pamlico
Muck and Tidal Marsh. He asked Mr. Turner if these are hydric soils. Mr. Turner answered yes they are all hydric soils and they can be changed. Mr. Johnson asked the differences in technology
today in regards to impacting soils from 30 years ago. Mr. Turner said the classification system provides the best information that can be derived from the general soil surveying in
New Hanover County as it relates to development practices in the County. He also mentioned that Pender County had to modify their codes to allow Class IV soils because they encountered
the same type of situations. Mr. Johnson asked Mr. Turner how many times he has been to the site. Mr. Turner said at least 50 times since 2005. Mr. Cameron asked Mr. Turner if he is
saying that 100% of that area has transitioned from Class IV to something different. Mr. Turner said there is a drain phase there which has a radical effect. Mr. Cameron asked if there
were no Class IV uplands. He also asked if it is upland the US Army Corps of Engineers would not have any jurisdiction over it. Mr. Turner said no, there are no Class IV uplands because
the primary feature that it hinges on is the depth of the water table. He s
what the County would have in place. He said the common feature is they both look at water tables but it is either wetland or not wetland and if it is not wetlands, the USACE has no
jurisdiction. Mr. Cameron asked if the property is ever re-evaluated at some point. Mr. Turner said the authorization period is 5-years and after that time it can be re-evaluated if
conditions changed. Mr. Johnson asked Mr. Turner what would happen if the tract is cleared. Mr. Turner said if the tract was cleared it would begin to accelerate the rate of oxidation
of the organics. Mr. Turner said it would be based on many factors such as the drainage pattern. He said there are fields in eastern North Carolina that have been farmed for 20 years
and there is visible evidence of boundaries and within 10 to 15 years the organics are gone.
12 The Chairman called for those to speak in opposition to granting the appeal to come forward to be sworn or affirmed for testimony. �
�Burgess, Mr. Vincent Eugene Lewis and Ms. Jennifer Dianne Braswell. his name
and position. �
� this case. Performance Residential
zoning was created to have more flexibility in areas where there were more challenging characteristics such as frequent flooding, septic systems, structural issues or causing a lost
to habitat. He said Performance Residential has a formula to calculate density, which is to first calculate the gross acreage and subtract the areas of concern to get the net acreage
and then multiply that net acreage by a factor. gave an example: a 12 acre parcel with 2.5 units per acre and subtracting 2 areas of concern results as 10 acres
x 2.5 = 25 units allowed for density. Mr. read the following from page 5 of the Classification of Soils in New Hanover County manual: From the public perspective, reviewing
agencies are primarily interested in considerations of public health and safety, and water quality. The four-class system attempts to rate soil units according to a scale of increasing
probabilities for public health and safety problems and water quality contamination. The classification system recognizes that, as soil suitability factors decline and maintenance costs
increase, the likelihood of inadequate upkeep and subsequent system failures also increases. said per the Zoning Ordinance, the proper method for calculating
maximum density for a Performance Residential subdivision design would incorporate the subtraction of Class IV soils. He said the Ordinance does provide an option for those that do not
want to subtract their Class IV soils from their density calculations and the acreage of Class IV soils need to be included in the density calculations if 100% of those areas remain
undeveloped. said this is the method of choice routinely used by developers in this area. He said when they met to discuss the density for this tract, the issue
came down to soil type and they checked the soil and confirmed that it is Class IV soil. He said Vince Lewis, a soil expert with the NC Department of Environmental and Natural Resources
(DENR) testified that Pamlico soils are Class IV soils regardless of whether they have been drained or not and although there has been changes to this tract the water table has not modified
the soil into a type other than Pamlico. Ms. Huffman directed the Board to page 37 of the New Hanover County Zoning Ordinance, Section 51.5-2 (11). She asked Mr. he
was doing his analysis for this case, and the developer suggested that he wanted to have a certain number of units on this tract if he had to look at this Section of the Ordinance when
making a determination regarding the density. efe said yes. �
�than some Pamlico but it is still Pamlico. She also asked if that was consistent with the findings of the Planning
staff and the expert from DENR. . Ms. Huffman asked once the determination was made that it is Pamlico soil what was the next step.
13
because of the Pamlico and they needed to subtract the acreage or stay out of the area of Pamlico soil. Ms. Huffman asked why the Pamlico soils have to be subtracted.
subtract from
the gross land area to be developed. Ms. Huffman asked in regards to the density requirement suggested by Planning would it make a difference whether there would be septic tanks or not.
Ms. Huffman askKeefe if discussions with the developer ended because
of the Pamlico. yes. �
�-2 (11) (b) of the Ordinance. Keefe read-All areas of Class IV soils as defined in A Classification of Soils in New
Hanover County for Septic Tanks Suitability. Mr. Johnson asked when this provision was enacted.
and September 1994. Mr. Johnson
Mr. Johnson referred to page 2 of the Classification of Soils manual, subsection C and asked Mr. read the definition of Class IV Soils.
Unsuitable; generally not economically feasible or environmentally desirable to develop. Mr. Johnson was
no. Mr. Johnson asked �
� page 3. The soil unit, except under the most heavily modified conditions, is deemed unsuitable for septic tanks. Mr. Johnson asked him if
answered no. Mr. Johnson
on page 14 under Depth to Groundwater Table. PM, 1.0 above surface to 1.0.
14 . generally
not economically feasible or environmentally desirable to develop The nature of the modifications necessary to render these soils useful for septic tank use are such that installation
and/or maintenance costs would be prohibitive, and damage to the environment excessive. Mr. Johnson �
� Mr. Johnson said
in Section B septic system is also mentioned in the definition. He said it would not make sense to use this document. �
� �
�excluded. although he has been on the site several times he could not answer
that without criteria provided. Mr. Olsen asked if the site could be developed with
the exception of the wetlands with 15,000 sq. ft. lots on the entire parcel. yes, those areas would be allowed to have a Conventional subdivision. Ms.
Huffman called Mr. Sam Burgess. She asked him to state his name and position. He stated his name as Sam Burgess and said he is the principal development planner for New Hanover County.
Ms. Huffman asked Mr. Burgess if he is the staff person in the Planning Department that would do the field work to determine what analysis needs to be given to the Planning Director.
Mr. Burgess answered yes. He said they have to send site plans to 7-9 agencies for review. He said Soil and Water Conservation informed them that there were 2 to 3 different classes
of soil on that site and predominately Class IV soils. He said when they got the information they set up a meeting with Mr. Turner, the principal partners, and the engineer/surveyor.
He said Mr. Turner guided them through the property and they observed wet soils. Ms. Huffman asked Mr. Burgess if he is responsible for evaluating types of soils on site. Mr. Burgess
answered yes especially when the soil class is challenged by the developer or surveyor. Ms. Huffman asked Mr. Burgess if the developers and Mr. Turner took issue with his determination.
Mr. Burgess said he and the Planning director made the decision to hold on to their observation and the developers decided to go to the Technical Review Board.
15 Ms. Huffman asked him when he informed the developers and Mr. Turner of the presence of Class IV soils. Mr. Burgess said the engineer communicated the information to the developers
and Planning told them that they needed to subtract the Class IV soils or leave it in its natural state. Ms. Huffman asked Mr. Burgess if he asked others to go onsite. Mr. Burgess said
Mr. Lewis with Department of Environmental and Natural Resources was asked to go onsite and he conducted tests which he said indicated Class IV soils were present. Ms. Huffman asked
if subsection 11 of the Zoning Ordinance would apply in this situation. Mr. Burgess said subsection 11 requires that the soil is subtracted or the soil is left in its natural state in
order to calculate the density. Ms. Huffman asked Mr. Burgess if they were concerned with septic tanks being onsite. Mr. Burgess said no. He said they use the Classification of Soils
manual as a companion to the Zoning Ordinance and Class IV soils have to be deducted because they are murky, of an organic nature, inability to drain, and structural load. Ms. Huffman
ended her questioning of Mr. Burgess. Mr. Johnson asked Mr. Burgess if he has specialized training as a soil scientist, have a degree in Soil Science or if he is considered to be a certified
soil scientist. Mr. Burgess answered no but he has 24 years of experience through observation out in the field. Mr. Johnson asked him what he would look for to identify Pamlico soil.
Mr. Burgess said Pamlico is a murky, organic type soil that has not reached any oxygenation. Mr. Johnson asked Mr. Burgess where he obtained that information. Mr. Burgess said from the
manual. Mr. Johnson asked if the Ordinance states to refer to the Classification of Soils in New Hanover County for Septic Tanks. Mr. Burgess answered yes. Mr. Johnson asked Mr. Burgess
the number of times he had been to the site. Mr. Burgess said 3 times. Mr. Johnson asked if he took any experts with him on the site visit. Mr. Burgess answered no. Mr. Johnson asked
if Mr. Turner was asked to be present at the site when he visited it.
16 Mr. Burgess said not that he can recall. He said Mr. Turner was hired by the developers. Mr. Johnson ended his questioning of Mr. Burgess. Ms. Huffman called Mr. Lewis for testimony.
She asked him to state his name and position. Mr. Lewis stated his name as Vincent Lewis and he is a Soil Scientist with the Soil and Water Conservation under the Department of Environmental
and Natural Resources. He said he has worked 30 years 10 months. Mr. Lewis said he has worked on soil surveys in Jonestown, Onslow and Pender counties. He said he has done soil interpretations
in Wilmington for the past 20 years. Ms. Huffman asked Mr. Lewis what he found at the site following his soil boring tests. Mr. Lewis said Pamlico Muck was still on the surface and Pamlico
cannot change because of drainage. He also said some areas might have been drained and no longer has the characteristics of Pamlico but in this case they have been burned out. Ms. Huffman
asked Mr. Lewis if there was anything that he observed that would cause him him to believe that it should be in a different class. Mr. Lewis said even though the water table is down
by 30 inches, it is still classed as Pamlico. Ms. Huffman ended her questioning. Mr. Johnson passed out information and asked Mr. Lewis if this was copies of emails between him and Mr.
Turner. Mr. Lewis answered yes. Mr. Johnson referred to an email dated August 26, 2008 that Mr. Lewis sent to Craig Turner. He asked Mr. Lewis to read his response at the bottom of the
page. Mr. Lewis read I concur that these soils have been modified due to the drainage and the water table has been lowered. Mr. Johnson asked Mr. Lewis to read his email response
at the top of the page. Mr. Lewis read I concur that these soils have been modified due to the drainage and they should be considered an unclassified map unit that meet your class
II soils. Mr. Johnson said at that time Mr. Lewis agreed that these soils had been modified and should be considered an unclassified map unit that meets Class II. Mr. Johnson asked Mr.
Lewis to discuss what he meant by the site had been burned. Mr. Lewis said that means the oxidation of organic matter is out of the soils. Mr. Johnson asked Mr. Lewis if he went in the
un-drained area of the site. Mr. Lewis said he did not go over the entire site. He said he made two visits to identify the soils and used an auger to detect the thickness of the muck.
17 Mr. Johnson asked Mr. Lewis if Mr. Burgess mentioned that the soil was Class IV. Mr. Lewis said no, they wanted an unbiased opinion. He said he was asked to identify the soils. Mr.
Johnson asked what happens when a drainage ditch is dug. Mr. Lewis said if Pamlico is plowed it will burn down much faster and change from mucky to mucky modified. Mr. Fuller asked if
the Planning Director made a mistake in classifying the soils and Mr. Lewis answered no. Mr. Johnson asked Mr. Lewis if he made a determination that it was Class IV soils. Mr. Lewis
said it was determined that it is a modified Pamlico. Mr. Johnson asked Mr. Lewis to explain his statement that his borings show a high amount of organic matter at this site.
the tree
stump is sticking out of the ground and at this site it was 18 inches. Mr. Johnson ended ended his questioning of Mr. Lewis Mr. Jones asked if there were sample plans of the development.
and engineers plans
are expensive. Mr. Jones asked if it is drained what would be the timetable before the land would be suitable for construction. Mr. Turner said you can begin development as demonstrated
on the tract to the south but in a non-drained area, the difficulty is wetlands. Mr. Turner said you would need to get a field permit if it is 404 wetlands and they would not give a
field permit to build any type of residential units in terms of limitations with acreage. Mr. Fuller said 130 acres with 2-1/2 units per acre would be 325 units and even if it remains
Class IV you can still build 325 Mr.
Resnick said it would not fit due to other factors such as parking requirements, County requires public roads, setbacks, and you could not put anything in the Pamlico area. Mr. Resnick
said they could only build about 160 units. Mr. Jones said he has a concern because it appears from the drawings that some of the wetlands crossed the development area. Mr. Turner said
the wetland area is at a narrow point, it is within the guidelines and has no impact to the wetlands.
18 Mr. Cameron asked why the document (Classification of Soils in New Hanover County for Septic Tank Suitability) is irrelevant to the decision. Mr. Johnson said their position is this
document is completely relevant to the determination because the Ordinance uses this as the guiding document to determine whether or not it is Class IV soils. He said the definition
goes back to this document but this document is only a septic tank document. Mr. Cameron said this document does not seem to reference septic just incorporates it by reference. Mr. Johnson
said it incorporates the definition and is referenced inside the Zoning Ordinance. Mr. Cameron said it does not incorporate septic, it incorporates the definition. Mr. Fuller asked Mr.
Johnson why that is important. Mr. Fuller said the document does not say all areas of Class IV soils as defined in a classification of soils in New Hanover County for septic tank suitability
are excluded except those that are not going to have septic tanks. He said the County Commissioners are referring to this as a document with definitions in it. Mr. Johnson said the point
is the definitions are the purpose behind this provision and when the Commissioners enacted this there was no sewer. Mr. Fuller said this was reaffirmed as recently as 1994. Mr. Johnson
said it is not known what changes were made in 1994. He said in 1984 you had to develop the septic tank but technology has changed since that time and this document has never been updated.
Mr. Jones said the document talks about septic tanks because that was their best starting point for making these rules and regulations. He said many things have been updated due to hurricanes,
flooding and things of that nature but everything cannot be pushed back to just septic tanks. �
� Mr. Fuller said on page 4 of the document where it says Class IV Unsuitable. He said it lists 4 soil types. He read Section 51.5 --2 (11) In calculating
the density for a proposed development, the following areas shall first be subtracted from the gross area of land to be committed to development. In lieu of subtracting Dorovan, Johnston,
and Pamlico soils, the developer may choose to preserve 100% of such areas as conservation space. Mr. Fuller said it is clearly listed here the soils that are unsuitable and there is
no reference to septic tanks. He said the only issue left is whether Mr. Turner is right that it is not Pamlico soil or if Mr. Lewis is right that it is Pamlico soil. Mr. Hickman asked
if Pamlico Muck has ever been developed in New Hanover County. Mr. Resnick said yes. He said the project is called Tarin Woods and he did the engineering. Mr. Hickman said he would like
to know why it is dangerous to develop on soil that has been ditched and has changed over time. Ms. Huffman explained that the owner wants to develop a property and went to the Planning
Department and presented what he proposed to develop. She said the
19 property as Performance Residential due to the rules. She said in Performance Residential all Class IV soils have to be subtracted. A discussion ensued regarding the aforementioned
property to the south that had been developed with Pamlico Muck on it. It was decided not to enter into discussion about this project because the Board does not have any reference material
or documentation for that project. PUBLIC HEARING CLOSED Board Discussion Mr. Jones explained to the Boa
Pamlico Muck or not. Mr. Fuller asked if the Board could defer the decision and ask that the appellant to consider a text amendment.
Mr. Olsen said getting a text amendment is a slow process and if the appeal is denied they could go back and request a text amendment. Mr. Jones said he already looked into that possibility
and getting a text amendment probably could not be done on the timetable that that they would want. Mr. Hickman said evidence shows that the soil has changed but is it suitable for building.
He referred to the email from Mr. Lewis that it is Class II based on the water table. Mr. Williams said he still questions if Class IV soils becomes something else when the water is
drained off. DISCUSSION RE-OPENED Mr. Jones asked why the County cannot look at what makes the determination that this is not buildable based on soil types rather than its current state.
ot of qualities related to development. He said in this area,
Pamlico
is associated with lots of other qualities related more closely to development; it behaves differently in soil conditions. Mr. Fuller said that would be an engineering problem. He asked
if County staff in Performance Residential could apply conditions and restriction that would ameliorate all those soil limitations. �
�. Mr. Fuller said the Technical Review committee put on the plat for the lot to
the south that all the houses had to have footings for slab designs for the soil conditions. Mr. Johnson said the ability to support a foundation is an engineering issue and you would
either engineer a foundation to deal with the soil, or take out the bad soil and replace it with good soil. Mr. Fuller asked if there was a mechanism in place for this to flip from a
planning issue to an engineering issue, short of this Board determining that the Planning Board made an incorrect determination.
20 Mr. Johnson said they are willing to create a binding document to say they have got to engineer a foundation, per soil type. �
�n place to do what they are doing. Mr. Olsen said the Board has to decide
if the soils have to be excluded or not and the classification of Board Decision 1. LJM Properties
LLC, 5819 Carolina Beach Road, is appdetermination that areas of the tract used in calculating density of development are
properly shown as Class IV Soils on the County Soils Map, as addressed in New Hanover County Zoning Ordinance, Section 51.5-2. Property is zoned R-15. Case No. ZBA-833. 2. On a motion
by Mr. Hickman and seconded by Mr. Cameron the Board voted to DENY the appeal. 3 nays (Mr. Jones, Mr. Cameron, Mr. Fuller), 2 ayes (Mr. Hickman, Mr. Williams) There being no further
business before the Board, it was properly moved by Mr. Fuller and seconded by Mr. Cameron to adjourn the meeting. All ayes. Executive Secretary Chairman