ZBA 9-08
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 September 23, 2008. Members Present Members Absent Robert Cameron, Jr., Vice-Chairman Michael S. Jones,
Chairman Eric Hickman Carmen Gintoli, Alternate Peyton Williams Peter DeVita, Alternate Dan Weldon Tim Fuller, Alternate Ex Officio Members Present Sharon Huffman, Assistant County Attorney
Andy Olsen, Attorney Ann Hines, Executive Secretary J. Steven Still, Acting Executive Secretary Hattie Moore, Clerk The meeting was called to order by the Vice-Chairman, Mr. Robert Cameron,
Jr. Mr. Cameron 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 �
�hirty days in which to appeal any decision made by the Board to Superior
Court. Mr. Cameron said the minutes would be voted on at the October meeting due to only 2 members are present tonight that sat on the August 26 meeting. Mr. Cameron said the order of
cases to be heard tonight would change and he called the first case LJM Properties, LLC. THE FIRST 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. Ms. Sharon Huffman said the attorney
representing this case would like to address the Board to request a continuance. Mr. Tom Johnson stated that due to witness not being available tonight he would
like to request that the Board have a special meeting on next Tuesday to hear their case, which would probably be lengthy, because it involves interpretation of the ordinance.
2 Ms. Hines said it places a hardship on staff to have an extra meeting during the course of the month. She explained that staff works on Board of Adjustment matters all month long and
an extra meeting would add to the workload, in addition to it being an out of pocket expense because some staff members are paid overtime to attend these meetings. After some Board members
expressed that they would not be available to attend a meeting on Tuesday, Mr. Johnson then asked if the meeting could be scheduled at some other time so they would not have to wait
another month for the case to be heard. Mr. Cameron said at this point, the Board could not commit to a special meeting and the only thing he could suggest is to schedule the case for
the next meeting. Mr. Johnson then said he would like to be notified in advance if the Board is only going to consist of 4 members or if an alternate would sit on his case. Board Decision
1. 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. 2. On a motion by Mr. Williams and seconded by Mr. Weldon the Board voted unanimously to CONTINUUE this case to the October 28, 2008 meeting. THE SECOND CASE BEFORE THE
BOARD WAS AS FOLLOWS: Grubb Holdings Company LLC, 4 Comber Road, is requesting a variance from the front yard setback requirements of New Hanover County Zoning Ordinance, Section 51-2
(3) Property is zoned R-20S. Case No. ZBA-832. Mr. Cameron called for those to speak to come forward to be sworn or affirmed for testimony He swore in County staff Ms. Ann S. Hines and
Mr. Steven Still. He also swore in Ms. Anna Averitt, attorney representing the appellants. Mr. Cameron called Mr. Still to give an overview of the case. Mr. Still stated Grubb Holdings
Company, LLC, is the owner of the property located at 4 Comber Road on Figure Eight Island. He said in planning the construction of a new residence it was found that due to setbacks
the building envelope would be only 930 sq. ft. Mr. Still said the applicants stated that a variance is necessary because the building envelope is compressed by the CAMA ocean setback.
He said the applicants also stated that due to the Figure Eight Island Covenants and Restrictions, a home must have a minimum of 2,000 square feet of heated space and may only be 44
feet high due to floodplain regulations. Mr. Still said they have further stated that without a variance the property is rendered unbuildable and cannot be used for its intended purpose.
He said the applicants have submitted proposed findings of fact and they have not received any objection to the variance request. Ms. Averitt stated she is an attorney with Houge Hill
Jones Nash & Lynch law office and is representing the applicant in this case. She then pointed out on a map the 2 other properties on
3 Comber Road where similar variances had been granted. Ms. Averitt referred to page 8 on the Figure Eight Regulations, which she said sets forth the 2,000 sq. ft. of heated space and
the 44 ft height restrictions. Mr. Fuller asked when the property was purchased. Ms. Averitt said it was purchased in 1998. She said the manger of
house in the middle and bought lots on either side but never developed them. Ms. Averitt said they presently have those 2 properties up for sale. Mr. Fuller asked if the sale
of the properties contingent on this Board approving the setbacks. Ms. Averitt said if they get the variance the sale would go through but she feels the sale would not happen if they
do not get the variance. She also said it is still unbuildable either way. Mr. Fuller referred to the General Policy under Figure Eight Architectural Review Guidelines in the paperwork
submitted by the applicant. Mr. Fuller read: Strict coastal regulations apply to all island projects. Therefore, appropriate permits must be obtained prior to seeking ARC approval. In
general, one should assume all projects modifying land or the exterior of a structure are subject to certain coastal regulations. Copies of the CAMA Permit or Exemption Certificate,
and the New Hanover County Health Department Improvement Permit are required before any building plans are reviewed by the committee. Mr. Fuller continued by reading from the Construction
Guidelines: In addition to
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�om the rear of the lot and 30 ft from the front (street) side. Mr. Fuller said the Covenants and Architectural Guidelines are extensive and clearly warns people
that about these things. He asked Ms. Averitt if these pre-date 1998. Ms. Averitt said yes they pre-date 1998. She also said they would have to get approval from the Architectural Review
as well and the 2 adjacent properties have already gone through that process. PUBLIC HEARING CLOSED Board Discussion Mr. Fuller said building within the setbacks affects the beach
erosion and the cumulative effect defeats the purpose of having CAMA setbacks. Mr. Weldon asked if the appellants are requesting a change in the 30 ft setback coming off the cul-de-sac
from 30 ft. to 15 ft. He also asked the additional footage that would be added to the 930 sq. ft. Mr. Cameron re-
PUBLIC HEARING RE-OPENED Ms. Averitt said they calculated it at 20 ft. which would increase the square footage
to 1185 sq. ft. so if they would have a 2-story building it would meet the 2000 sq. ft. requirement. Ms. Averitt said they would be willing to take the 15 sq. ft. PUBLIC HEARINGS CLOSED
Board Discussion Mr. Weldon asked if the CAMA regulations are the reason the house has to be that far forward.
4 Mr. Fuller said yes. He said CAMA regulations are to keep people as far as they can from the beach because evidence shows that the closer you build to the high water mark and the dunes
the greater the impact. He said the property was purchased in 1998 and now there is another contemplated purchase and what it seems to indicate is that the applicant was not cognizant
of these rules when they purchased the property. Mr. Fuller said he was not comfortable with granting this variance just because they bought a lot. Ms. Hines said there are short term
storm events that can sometimes have dramatic impact and also long term beach erosion. She said the argument is that development, in theory, makes it worse. Ms. Hines said historically
there has been an ebb and flow of sand in this area and over a decade there has been instances of long term erosion and the setbacks have somewhat moved forward and back in this particular
stretch of beach. She said the applicant is asking to preserve the CAMA setback. She said the the Coastal Resources Commission does hear variance requests from the ocean setback and
their standard policy is that all local remedies are exhausted first which is the reason the applicants are here trying to get a local zoning variance. Ms. Hines said this is a different
type of lot and is not configured the same as ones that usually come to the Board. Board Decision 1. Grubb Holdings Company LLC, 4 Comber Road, is requesting a variance from the front
yard setback requirements of New Hanover County Zoning Ordinance, Section 51-2 (3) Property is zoned R-20S. Case No. ZBA-832. 2. Mr. Williams made a motion to GRANT the variance request
for the 20 ft setback. Mr. Hickman seconded the motion. 4 ayes, 1 nay (Fuller) THE THIRD 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. The Vice-Chairman called
those to to speak to come forward to be sworn for testimony. Mr. Holt Moore said he is the attorney representing Mr. Piner, the adjacent property owner in this case and they are requesting
a continuance to the October 28, 2008 meeting. The Vice-Chairman called Mr. Musselwhite to speak. Mr. Musselwhite stated that he would not want to continue the case due to his medical
condition and he has to have someone to drive him back and forth. Mr. Olsen said it is important to determine if there is any prejudice against Mr. Musselwhite in regard to this matter
being continued. He asked Mr. Musselwhite if a month would be acceptable to come back to the Board. Mr. Musselwhite said he has to go in the hospital tomorrow and would prefer that the
Board hear the case tonight.
5 Ms. Hines said the question about a continuance came up last week. She said Mr. Musselwhite was contacted and he did say that he did not want to continue the case so they have been
at this impasse for a while. Mr. Olsen said he does not see the prejudice to Mr. Musselwhite and if he could not make the next scheduled meeting in October then Mr. Musselwhite could
ask for a continuance on his part. 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. 2. Mr. Fuller made a motion that the case be CONTINUED to the October 28, 2008 meeting. Mr. Weldon
seconded the motion. All ayes. THE FOURTH AND LAST CASE BEFORE THE BOARD WAS AS FOLLOWS: Herman G. and Sara W. Bryant, 410 Mohican Trail, are requesting a variance from the setback requirements
of New Hanover County Zoning Ordinance, Section 52.5-2 (5) to construct a detached garage behind their residence. Property is zoned R-15. Case No. ZBA-831. Mr. Cameron called those to
speak to come forward to be sworn or affirmed for testimony. He swore in Mr. Herman Bryant. Mr. Jones called Mr. Still to give an overview of the case. Mr. Still stated the applicants
are requesting to build an L-shaped garage approximately 2274 square feet behind their residence. He said Zoning Ordinance Section 52.5-2 requires a 10 ft side setback and a 20 ft. rear
setback for an accessory structure of this size. Mr. Still said the applicants intend to comply with the side setback requirement however they are asking for a 10 ft. variance for the
rear setback requirements. Mr. Still said in the case of smaller accessory structures, Zoning Ordinance Section 62-1 allows a setback reduction to 5 ft. on the side and rear for accessory
structures of 600 square feet or less. He said Mr. Bryant states that in order to have adequate garage and workshop space for his intended utilization he would have to build the garage
in this configuration to preserve the existing trees and green space. Mr. Cameron called Mr. Bryant to speak. Mr. Bryant said almost all of the lots in Tanglewood back up to a ditch
and the 20 ft setback is there to have enough space for cleaning out the ditch. He said he does not have a ditch in the rear of his lot. Mr. Cameron asked Mr. Bryant the size of their
primary residence. Mr. Bryant said their house is 2100 sq. ft. Mr. Williams asked Mr. Bryant the purpose of this structure. Mr. Bryant said a workshop for his hobbies which include welding
and carpentry.
6 Mr. Williams asked Mr. Bryant if he plans any commercial use for the building and Mr. Bryant said no, it will be just for his hobbies. PUBLIC HEARING CLOSED -Board Discussion Mr. Fuller
referrehe cannot make reasonable return from, or make reasonable use of his property (if the variance
is not granted). Mr. Fuller asked legal staff if the Board could stipulate that this is intended to give a reasonable return; it is non commercial. Mr. Olsen said this is a residential
lot and what it means is can he have reasonable use of his lot. Mr. Olsen said hobbies are not outside the norm for reasonable use. He said a condition could be added to the variance
to say no commercial use, but it is not necessary because it is not zoned commercial. Mr. Fuller said his concern is that if the property is sold the new owner may see that 2200 sq.
ft. shop as an opportunity. Mr. Fuller also asked if the Board could add that the applicant cannot cannot remove any trees connected to the construction of this structure without approval
from Zoning. Ms. Hines said there is not a county ordinance that prohibits the removal of trees from a residential lot; however, it does place a premium on larger existing trees. Mr.
Cameron asked if it matters that the accessory structure is larger than the primary structure. Ms. Hines said there is nothing in the Ordinance that speaks to that situation. She said
Zoning would welcome any specific comments or conditions that the Board would like to put on this so that everybody knows what is being said and to make it easier for staff. Ms. Hines
said the current ordinance would not allow a second dwelling unit in an accessory structure, although a kitchen would be allowed. She further explained that to have a second unit there
must first be enough acreage, which this lot does not have; you would need physical separation, and independent sleeping facilities along with independent cooking facilities. Ms. Hines
said you could have a guest house with no cooking or an entertainment house with no sleeping facilities, without violating the Zoning codes. Board Decision 1. Herman G. and Sara W. Bryant,
410 Mohican Trail, are requesting a variance from the setback requirements of New Hanover County Zoning Ordinance, Section 52.5-2 (5) to construct a detached garage behind their residence.
Property is zoned R-15. Case No. ZBA-831. 2. On a motion by Mr. Fuller and seconded by Mr. Weldon, the Board voted unanimously to GRANT the variance request with the following conditions:
(1) No trees are to be removed without Department of Inspections approval and (2) No commercial use of the structure. There being no further business before the Board, it was properly
moved by Mr. Weldon and seconded by Mr. Williams to adjourn the meeting. All ayes. Acting Executive Secretary Chairman