ZBA 11-10
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
Complex, 230 Government Center Drive, in the Lucie Harrell Conference Room, Wilmington, NC, on Wednesday, November 24, 2010. Members Present Members Absent Robert Cameron, Jr., Chairman
Justin Lewis Eric Hickman Peyton Williams Noelle Winstead Tim Fuller, Alternate Peter DeVita, Alternate Michael McCulley, Alternate Ex Officio Members Present Sharon Huffman, Assistant
County Attorney Andrew Olsen, Attorney J. Steven Still, Acting Executive Secretary Christine
Bouffard, Zoning Code Official Hattie Moore, Clerk The meeting was called to order at 5:33 P.M. by the Chairman, Mr. Robert Cameron, Jr. Mr. Cameron explained 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 t of the Zoning Ordinance. Mr. Cameron added that appellants have
thirty days in which to appeal any decision made by the Board to Superior Court. It was properly moved by Ms. Winstead and seconded by Mr. McCulley to accept the minutes from the August
25, 2010 meeting. All ayes On a motion by Mr. McCulley and seconded by Mr. DeVita the Board unanimously approved the Zoning Board of Adjustment schedule for year 2011. Mr. Cameron swore
in County staff Mr. J. Steven Still THE FIRST AND ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: David McCall has appealed the determination
of the Zoning Official regarding the extension and enlargement of a non-conforming building located at 6485 Carolina Beach Road. Property is zoned B-2. Case No. ZBA-857
: Mr. David McCall is currently in the process of designing a lateral addition to a building located at 6485 Carolina Beach Road, located south of the Monkey Junction area
of New Hanover County. The current existing building located on the parcel is considered a legal-nonconforming building in respects to its
2 from the northern property line adjacent to Laurel Ridge Subdivision common area. Section 69.11 of the New Hanover County Zoning Ordinance establishes building setbacks for commercial
property adjacent to residential property. Section 69.11 states: Section 69.11: Setback Table Setbacks within commercial, office and institutional and industrial districts abutting residential
districts The required minimum setbacks for structures located within Commercial, Office and Institutional and Industrial Districts abutting residential uses and/or platted lots on residentially
zoned property shall be calculated from Table 69.11 utilizing the following formulas. Where the adjacent residential district is occupied by non-residential uses, the minimum setback
shall be twenty (20) feet. (5/4/98) (1) Side yard Required setback (2) (Building Height) x (Factor from Column B, Table 69.11) (3) Rear yard Required setback (4) (Building Height) x
(Factor from Column D, Table 69.11) (5) Reductions in setbacks (6) The required setbacks may be reduced as specified in Section 67. In no case, however, shall any side or rear yard setback
be less than specified in Table 69.11 (3/9/88)
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�2.75 side yard setback factor) away from the northern property line. This language and setback table was introduced into the
Zoning Ordinance in March 1988. The existing building was constructed in 1973; therefore at the time of construction the setback factor was not a requirement, which in turn establishes
its non-conforming situation status. Section 41-1, under Article IV: Non-Conforming Situations, defines Non-Conforming Buildings as: Non-Conforming Building or Structure (Dimensional
Non-Conformity) -A non-conforming situation that occurs when the height, size or minimum floor space of a building or the relationship between an existing building and the required yard
setbacks does not conform to the regulations applicable to the district in which the property is located. Further, Section 40, under Article IV: Non-Conforming Situations establishes
the intent of non-conforming situations: DISTRICT SIDE YARD SETBACK FACTOR MINIMUM SIDE YARD SETBACK, IN ALL CASES REAR YARD SETBACK FACTOR MINIMUM REAR YARD SETBACK, IN ALL CASES B-1
2.75 3.73 B-2 2.75 3.73 O&I 2.75 3.73 I-1 3.08 4.33 I-2 3.49 5.14 A-I 3.08 4.33
3 ARTICLE IV: NON-CONFORMING SITUATIONS Section 40: General 40-1: After the effective date of this ordinance, land or structures, or the uses of land or structures which would be prohibited
under the regulations for the district in which it is located and which were existing prior to the effective date of this ordinance shall be considered as non-conforming. It is the intent
of this ordinance to permit these non-conformities to continue until they are removed, but not to encourage their continual use. Non-conforming structures or uses may be continued provided
they conform to the provisions of this ordinance. (9/7/76) This section of the ordinance identifies that the general intent for non-conformities is to allow for their existence but not
to encourage or support the continuation of the non-conforming situation. Section 44 of the New Hanover County zoning ordinance establishes the guidelines for the extension or enlargement
of non-conforming situations. Section 44 states: Section 44: Extension or Enlargement of Non-Conforming Situations 44-1: Except as specifically provided in this section, it shall be
unlawful for any person to engage in any activity that causes an increase in the extent of non-conformity of a non-conforming situation. 44-2: Subject to paragraph 44-4 of this section,
a non-conforming use may be extended throughout any portion of a completed building that, when the use was made non-conforming by this ordinance, was manifestly designed or arranged
to accommodate such uses. However, subject to section 43 of this ordinance, a non-conforming use may not be extended to additional buildings or to land outside the original building.
44-3: Subject to section 43 of this ordinance, a non-conforming use of open land may not be extended to cover more land than was occupied by that use when it became non-conforming, except
that a use that involves the removal of natural materials from the lot (e. g., a quarry) may be expanded to the boundaries of the lot where the use was established at the time it became
non-conforming, if ten (10) percent or more of the earth products had already been removed at the active date of this ordinance. 44-4: Where a non-conforming situation exists the equipment
or processes may be changed if these or similar changes amount only to changes in degree of activity rather than changes in kind and no violations of other paragraphs of this section
occur. 44-5: Physical alteration of structures or the placement of new structures on open land are unlawful if they result in: (1) An increase in the total amount of space devoted to
a non-conforming use; or (2) Greater non-conformity with respect to dimensional restrictions such as yard requirements, height limitations, or density requirements. 44-6: Minor repairs
to and routine maintenance of property where non-conforming situations exist are permitted and encouraged. 44-7: Notwithstanding paragraph 44-5, any structure used for single family
residential purposes and maintained as a non-conforming use or structure may be enlarged or replaced with a similar structure of a larger size, so long as the enlargement or replacement
does not create new non-conformities or increase the extent of existing non-conformities with respect to yard size and setback requirements. In particular, a mobile home may be replaced
with a larger mobile home,
4 and a "single-wide" mobile home may be replaced with a "double-wide". This paragraph is subject to the limitations stated in Section 46 -Abandonment and Discontinuance of Non-Conforming
Situations. 44-8: A structure that is non-conforming in any respect or a structure that is used in a non-conforming manner may be reconstructed or replaced if partially or totally destroyed,
subject to the following restrictions: (1) A letter of intent is received by the Building Inspector within six (6) months from the time of such destruction. (2) A building permit is
obtained from the Building Inspector within one (1) year from the time the damage or destruction took place. (3) The total amount of space devoted to a non-conforming use may not be
increased, except that a larger, single family residential structure may be constructed in place of a smaller one and a larger mobile home intended for residential use may replace a
smaller one. (4) The reconstructed building may not be more non-conforming with respect to dimensional restrictions such as yard requirements, height limitations or density requirements,
and such dimensional non-conformities must be eliminated if that can reasonably be accomplished without unduly burdening the reconstruction process or limiting the right to continue
the non-conforming use of such building. (9/7/76) Mr. Still stated it is this section that Mr. McCall is challenging staffs interpretation. Specifically section 44-1 and 44-5 (1), (2).
Section 44-1 identifies the unlawfulness of engaging in any activity that increases the extent of a non-conforming situation. Mr. McCall states that the linear expansion of the building
along -conformity.
He also states that since the new building does not encroach closer to the residentially zoned property the expansion should be permitted. Also, section 44-5 (1), and (2), states that
physical alterations or the placement of new structures shall be unlawful if it results in a greater increase of space devoted to the non-conforming use; or greater non-conformity with
respect dimensional restrictions such as yard requirements, height requirement, or density requirements. Since the expansion increases the amount of space devoted to the non-conforming
building, and because there would be more building area encroaching into sideyard setback requirement, staff has determined that the expansion would be an increase in the extent of the
non-conformity. Mr. Still stated staff has historically and consistently interpreted this section of the ordinance to not allow physical expansions of buildings into areas previously
not occupied by non-conformities. This section of the ordinance is reflected in many zoning ordinances throughout the state. In many ordinances, the language �
�municipalities to gage the interpretation of expansion
and enlargement of non-conforming situations. Attached are sections of the contacted organizations Zoning Ordinance. He said Section 32 of the New Hanover County Zoning Ordinance district
regulations further establishes the requirement for the expansion to be in conformance with the expressed sideyard setbacks. Section 32: Application of District Regulations 32-1: The
regulations set by this ordinance within each district shall be minimum regulations and shall apply uniformly to each class or kind of structure or land, except as hereinafter provided.
(1) No building, structure, or land shall hereafter be used or occupied, and no building or structure or part thereof shall hereafter be erected, constructed, reconstructed, moved, or
5 structurally altered except in conformity with all of the regulations herein specified for the district in which it is located. (2) No building or other structure shall hereafter be
erected or altered: (3) to exceed height or bulk; (4) to accommodate or house a greater number of families; (5) to occupy a greater percentage of lot area; (6) to have narrower or smaller
rear yards, front yards, side yards, or other open spaces than herein required, or in any other manner be contrary to the provisions of this ordinance. (7) No part of a yard, or other
open space required about or in connection with any building for purpose of complying with this ordinance, shall be included as part of a yard, or open space similarly required for any
other building. (8) No yard or lot existing at the time of passage of this ordinance shall be reduced in dimension or area below the minimum requirements set forth herein. Yards or lots
created after the effective date of this ordinance shall meet at least the minimum requirements requirements established by this ordinance. Mr. Still said this section states that structurally
altered buildings must meet the district regulations. As previously mentioned, staff has consistently interpreted the Zoning Ordinance to not allow physical expansions of buildings into
areas previously not occupied by non-conformities. Therefore, staff has -
conforming structure. Mr. McCall had been informed that if his expansion was to comply with the current setback staff could approve the building permit; however Mr. McCall has stated
that an expansion which complies with the current setbacks would be impractical. Mr. Still reminded the Board that this request is an appeal of the interpretation of the Zoning Officer
as opposed to a variance request and does not have to meet the five required findings. Also, a four-fifths majority vote is required to reverse any order or determination of the Zoning
Official. Mr. Still added that all interested parties had been notified, as per the list of neighboring property owners provided by the Appellant. presen
tation consisted of aerial maps of Laurel Ridge subdivision, site plan showing the proposed addition, and various photographs of the building.
and Mr. Olsen agreed.
Mr. Still asked the Board to disregard the portion of his overview summary that references to other counties interpretation of non-conforming lots. [
the minutes] Mr. Cameron called those to speak in favor of the appeal to come forward to be sworn in. The Chairman
swore in Mr. Robert David McCall and Mr. Henry Thomas Heitman IV. Mr. David McCall stated that the letter he received from the homeowners of Laurel Ridge Subdivision implies that they
believe that he wants to build a 30 x 30 Mr. McCall stated
in order to open a family restaurant that would not serve alcoholic beverages, and would not have biker rallies or loud music. He said Zoning
staff is denying them a reasonable improvement and expansion to an existing building which could result in a lost of building value. Mr. McCall said he is a licensed architect and licensed
building contractor. He said he has interpreted codes, ordinances, deed restrictions, federal and state regulations
6 for over 30 years and would consider himself an expert in interpreting zoning ordinances. He said he has served as a legal expert in his field and has served on the City of Wilmington
Preservation Commission. In support of his argument, Mr. McCall referenced the following Sections of the New Hanover County Zoning Ordinance: 1. The Preambleconser
ving the value of buildings and encouraging the most appropriate use of land throughout the Co 2. General Definitions-Buildable AreaThe portion of a lot
remaining after required yards have been provided. 3. Section 55.4 (2): B-2 Highway Business District Minimum Front Yard. Mr. McCall said the front yard setback for Carolina Beach Road
is 50 ft. He said since Section 55.4(2) does not address rear and side setbacks to the adjacent B-2 district, it is assumed that those setbacks would be 0. 4. Section 55.4 (3a) minimum
side and rear yards for property abutting residential districts. 5. Section 69.11: Setback Table. Mr. McCall said the table calculations for a B-2 district sideyard adjacent to a residential
area is 2.75 times the building height which is 20 ft. Therefore, the required north side setback would be 55 ft. He said those setbacks are for new construction and not for non-conforming
buildings. 6. Section 23: Definitions Non-Conforming Uses-He read: The use of a building or land which does not conform to the use or dimensional regulations of this Ordinance for
the district in which it is located 7. Article IV: Non-Conforming Situations-Section 40-1 He read: Non-conforming structures or uses may be continued provided they conform to the provisions
of the ordinance. 8. Section 41-1 (1): Definitions -A Non-Conforming Use-He read: A situation that occurs when an existing lot or structure, or use of an existing lot or structure does
not conform to one or more of the regulations applicable to the district in which the lot or structure is located. (2) Non-Conforming Lot He read: A lot existing [at the effective
date of this ordinance or any amendment hereto] that cannot meet the minimum lot area requirements of the district in which the lot is located. (3) Non-Conforming Use-He read: A non-conforming
situation occurs when property is used for a purpose or in a manner made unlawful by the permitted use regulations applicable to the district in which the property is located. (4) Non-Conforming
Building or Structure (Dimensional Non-Conformity) He read: A non-conformity situation that occurs when the height, [size or minimum floor space of a building] or the relationship
between an existing building and the required yard setbacks does not conform to the regulations applicable to the district in which the property is located. 9. Section 44-5: Extension
or Enlargement of Non-Conforming Situations He read: Physical alteration of structures or the placement of new structures on open land are unlawful if they result in: 1. An increase
in the total amount of space devoted to a non-conforming use: or 2. 2. Greater non-conformity with respect to dimensional restrictions such as yard requirements, height limitations,
or density requirements. 10. Section 44-8: Extension or Enlargement of Non-Conforming Situations-He read: A structure that is non-conforming in any respect or a structure that is used
in a non-conforming manner may be reconstructed or replaced if partially or totally destroyed, subject to the following restrictions. Section 44-8 (4): The reconstructed building may
not be more non-conforming with respect to dimensional restrictions such as yard requirements, height limitations or density requirements, and such dimensional non-conformities must
be eliminated if that can reasonably be accomplished without unduly burdening the reconstruction process or limiting the right to continue the non-conforming use of such building.
7 Mr. McCall also stated that under the Table of Permitted Uses, eating and dining facilities are allowed in a B-2 zoned district. Mr. Olsen asked Mr. McCall if his
is that he could not replace the existing porch with the same sized porch. Mr. McCall said he could replace the porch with the same sized
porch but he could not enlarge it. PowerPoint presentation consisted of drawings comparing setbacks on Carolina Beach Road, drawings of the proposed project
and various pictures of the property. Mr. DeVita asked Mr. McCall if the property was 400 ft deep with the same height would the interpretation of the ordinance allow him to build a
30' x 200' building. Mr. McCall said yes as long as he remains within the buildable footprint. Mr. Cameron asked if it was correct that a non-conforming use could build in the setback
but a conforming use could not build in the setback. Mr. McCall said yes. Mr. McCulley referred to Section 40-1-It is the intent of this ordinance to permit these non-conformities to
continue until they are removed, but not to encourage their continual use. He asked Mr. McCall if he agreed that the intent is to allow the use to continue until removed but not to encourage
the continual use. Mr. McCall said he did agree with that but Non-conforming structures or uses may be
continued provided they conform to the provisions of this ordinance. Mr. McCall asked if this was to encourage tearing down the building. Mr. McCulley said the Board is not encouraging
tearing down the building but they also do not want to encourage the continuance of this use. Mr. McCulley said the building could be extended on and limited only by the size of the
lot which would encourage this nonconformity to perpetuate into the future. He highest and best use argument is contradictory to what the Ordinance
says regarding intent. Mr. Heitman stated after the use is gone the rules and regulations no longer apply. He said the critical question to ask is what the setbacks are for a nonconforming
building on a conforming lot with a conforming use. He said the setbacks are the same for the current building and it allows the expansion of a building in its current footprint. He
said the Zoning Ordinance is very specific and you cannot have a greater setback than what currently exists with the nonconforming use. Mr. Cameron called those to testify in opposition
to the appeal to come forward to be sworn for testimony. The Chairman swore in Mr. Milton Harry Stevenson and Mr. Rex Burford. Mr. Stevenson stated he is on the Board of Directors at
Laurel Ridge and they are opposed to any
association were notified by letter and the vote was 2 for and 44 against the expansion.
8 Mr. Burford submitted the form that was mailed to the homeowners at Laurel Ridge regarding this project and also their votes. He said Mr. McCall is not licensed to practice law and
is representing the homeowner as if he practices law. He asked if Mr. McCall is the purchaser or the agent. : Mr. McCall said he submitted a
form signed by his client, Mary Young giving him authorization to speak on her behalf. He also said he could provide a copy of the Offer to Purchase agreement between him and Ms. Young.
Mr. Burford said there is nothing on record stating that. Ms. Huffman said per the North Carolina State Bar, in a quasi-judicial hearing the client needs to be present to state on record,
that someone else would be representing them. Otherwise, it would be considered that they are practicing law and could therefore be susceptible to being charged criminally. Ms. Huffman
stated this appeal hearing is not considered to be quasi-judicial. Mr. Burford stated for the record, that they would like to enter a motion to dismiss the appeal or for the Board to
rule against him. PUBLIC HEARING CLOSED Mr. McCulley said he has heard a lot about highest and best use and preamble and he does not see the contradiction between that and what has been
specifically expressed as the intent in the nonconforming section of the Ordinance. Mr. McCulley said there are exceptions to general rules and the clearly expressed exception in our
ordinance is that they are uniform and there is an inherent value recognized in that system. He said they do not want the structure torn down because it does not conform but they do
not want to encourage that structure on into perpetuity but limited to what it is now. He said if a structure is damaged you can rebuild it back to what it was but expanding something
that is nonconforming is a different idea and does not lend itself to the interpretation that Mr. McCall gives it. He said the highest and best use is accomplished by this exception
because this is what what is allowing the general set of ordinances to gradually become applicable to more and more properties. Mr. McCulley said Mr. McCall should focus his efforts
into getting a variance and not into trying to change the entire interpretation of staff for the ordinances. Mr. DeVita said he agrees but it all boils down to the purpose of this Board,
which is to grant variances when the ordinances does not account for unique circumstances. He said if they rule against staff the Board opens up the possibility of other cases like this
coming before the Board. He also suggested the Board explore the possibility of improving the wording and interpretation of the ordinance. Ms. Winstead said the Board is here to decide
whether staff interpreted the ordinance correctly. Ms. Winstead said she agrees with staff and referenced Section 32-1 (1): Application of District Regulations -no building, structure
or land shall hereafter be used or occupied and no building or structure or part thereof shall hereafter be erected, constructed, reconstructed, moved, or structurally altered except
in conformity with all the regulations herein specified for the district on which it is located. Mr. Hickman said he also agrees
different avenue.
9 Board Decision: 1. David McCall has appealed the determination of the Zoning Official regarding the extension and enlargement of a non-conforming building located at 6485 Carolina
Beach Road. Property is zoned B-2. Case No. ZBA-857 2. On a motion by Mr. McCulley and seconded by Ms. Winstead the Board voted unanimously to UPHOLD s determination on the
ordinance interpretation. �
� or he could request a variance. There being no further business before the Board, it was properly moved by Ms. Winstead and seconded by Mr. Hickman to adjourn the meeting.
All ayes 7:34 P.M Acting Executive Secretary Chairman