ZBA 12-10
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, December 22, 2010. Members Present Members Absent Robert Cameron, Jr., Chairman
Noelle Winstead Justin Lewis Eric Hickman Peter DeVita Joe Miller, Alternate Michael McCulley, Alternate Ex Officio Members Present Sharon Huffman, Assistant County Attorney Jane Daughtridge,
Planning and Zoning Manager J. Steven Still, Acting Executive Secretary Linda E. Painter, Zoning Code Official Hattie Moore, Clerk The meeting was called to order at 5:30 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
e. Mr. Cameron added that appellants have thirty days in which to appeal any decision made by the Board to Superior Court. First Order
of Business: Mr. Cameron swore in new Board members Mr. Peter DeVita as a regular member and Mr. Joe Miller as an alternate member. It was properly moved by Mr. DeVita and seconded by
Mr. McCulley to accept the minutes from the November 24, 2010 meeting. All ayes Mr. Cameron swore in County staff Mr. J. Steven Still and Ms. Jane Daughtridge. THE FIRST AND ONLY CASE
BEFORE THE BOARD WAS AS FOLLOWS: Mary Susan Young, 6485 Carolina Beach Road, is requesting a variance from New Hanover County Zoning Ordinance Sections 32.1 Application of District Regulations,
55.4 (3)(A) Highway Business District, 44-1 and 44-5 Extensions or Enlargement of Non-Conforming Situations, and 69.11 Setback Table. Property is zoned B-2 (Highway Business). Case No.
ZBA-858. : Mr. David McCall is currently in the process of designing lateral additions to building at 6485 Carolina Beach
Road, located south of the Monkey Junction area of New Hanover County.
2 expansion to the rear of the building. The current existing building located on the parcel is considered a legal-nonconforming building in respects to its physical location adjacent
to residentially zoned
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: 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) This section establishes the setback by multiplying the building height by a setback factor which in this case is 2.75 �
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x 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. 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 Further, Section 40, under Article IV: Non-Conforming Situations establishes the intent of non-conforming situations: 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 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 is 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.
4 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, 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) 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) Again, Section 44 identifies the unlawfulness of engaging in any activity that increases the
extent of a non-conforming situation, it identifies the unlawfulness of extending non-conformities to additional buildings or to land outside the original building, and the unlawfulness
in increasing the amount of space devoted to the non-conformity with respect dimensional restrictions. Since the proposed 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 unlawful. Furthermore, 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,
5 reconstructed, moved, or 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 least the minimum requirements established by this ordinance. Also, staff has communicated
with New Hanover County Environmental Health about the possible conversion of this building into a restaurant, which is its intended use. Environmental Health staff stated that currently,
the septic system is out of compliance due to parking and drive isles over the septic drain lines and that the possibility of converting this building into a restaurant is highly questionable
due to the lack of space required for a septic system expansion. Mr. McCall has been informed of the outstanding issues with septic suitability but as of the date of this letter has
not contacted Environmental Health. Mr. McCall has stated that an expansion which complies with the current setbacks would be impractical and has therefore applied for variance from
the aforementioned sections of the New Hanover County Zoning Ordinance. PRELIMINARY FINDINGS OF FACT: The applicant has asserted
Staff, in its review of the case, has commented on the assertions of fact. The the
following statements. 1. The Board must find that if the applicant complies with the literal terms of the ordinance, specifically, Sections 32.1 Application of District Regulations,
55.4 (3)(A) Highway Business District, 44 Extensions or Enlargement of Non-Conforming Situations, and 69.11 Setback Table, he cannot secure a reasonable return from, or make reasonable
use of his property. A. : Attached is Exhibit A site plan which indicates the proposed expansions and the required conforming
buildable area. The required conforming buildable area footprint does not allow the existing placement of a building on the site reasonable opportunities for the expansion and/or improvements.
Improvements and expansions of the building, being part of a reasonable use of the property, would be severely limited by the literal terms of the ordinance and would limit a reasonable
return from it. In the Preamble to the Zoning Ordinance on page 1, the intent of the Zoning Ordinance is for the Board to approve �
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allowed within the conforming buildable area, reasonable use of the land and building value is not conserved.
6 B. Staff. Staff finds that if the applicant complies with the literal terms of the ordinance he can secure a reasonable return from or make reasonable use of his property. Further,
Article IV Non-Conforming Situations, Section 40-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 2. The
Board must find that the hardship in which the applicant complains results from unique circumstances related to the applicants land. A. :
On Page 1 in the Zoning Ordinance is the Preamble which outlines the general principles of the Zoning Ordinance and it is view to conserving the value of buildings
and encouraging the most appropriate use The unique circumstance is as follows: This land has an existing building, built approximately 15 years prior the ordinances
and at the time met the county regulations. The existing placement of the building and the existing parking area on this land has been established and in use for 37 years. The ordinance
has provisions for expansions of non-conforming buildings. Expansions of this building, if only allowed within a conforming buildable area, would be located in the established and required
parking area. This would be a hardship caused by unique circumstances related to the land. Attached Exhibit A would be respectful to the
B. Staff Staff finds that the hardship in which the applicant complains is not unique to the applicants land. Staff located 20 properties within 1000 feet
of the subject property that are held to the same regulations. The Zoning Ordinance contains provision to regulate this specific situation for commercial uses adjacent to residential
zoning therefore is not uniq 3. The Board must find that the hardship is not the result of the applicants own actions A.
Applicant Asserts: The placement of this building on the site, in 1973 and the required parking were established well before the adoption of the NHC Zoning Ordinance and District Maps.
The properties physical conditions were transferred to the Owner by deed, without alterations to this date, and are not the result of the applicant. Even the adjacent residential subdivision
existed in 1973. The building value over the past years is depreciating due to the lack of improvements, which have not been lawful according to the Zoning Ordinance. The building needs
reasonable expansions and improvements to appreciate in value, and keep up with the growth of surrounding properties, and it is a Zoning responsibility, according to �
�is Exhibit A which would all improvements appropriate
for this non-conforming building.
7 B. Staff Staff finds that the current building was not placed on the site prior the adoption of the Zoning Ordinance and District map. This area of the county was zoned on April 7,
1971 which was prior to the construction of the building. Staff finds the hardship is not the result of the applicants own actions, however is due to the applicants desired location
of the expansion. 4. The Board must find that if granted, the variance will be in harmony with the general purpose and intent of the ordinance and will preserve its spirit. A. Applicant
Asserts: It is the entrusted responsibility of the Board to promote the general principles of the Ordinance which are expressed On Page 1 in the with
a view to conserving the value of buildings and encouraging t. Reasonable Expansion and improvements to buildings is
essential for the welfare of our county and communities, and the ordinance should not be intended to prevent improvements or expansions to existing buildings that would conserve their
values. And in this case these expansions and improvements are only reasonable outside the conforming buildable area and an example of this is as shown in attachment Exhibit A. B. Staff
Staff finds that a variance would not be in harmony with the general purpose and intent of the ordinance. The aforementioned sections of the ordinance have been historically and consistently
enforced to protect residential properties from adjacent commercial uses. Currently the intentions of the ordinance are quite clear. A variance from the specific sections would not be
in harmony with the general purpose and intent of the ordinance and will not preserve its spirit. 5. The Board must find that if granted, the variance will secure the public safety and
welfare and will do substantial justice. A. Applicant Asserts: Attached Exhibit A represents an example of a continuance of non conforming building respectful of public safety, welfare
and justice for all concerns. Expansion of or improvements to the nonconforming building will not increase a negative impact on public safety. To allow the variance will secure public
welfare by allowing reasonable property improvements that will enhance well-being and prosperity, which is good for the community at large. This variance will do public justice by allowing
reasonable return on and reasonable appreciation to the property. In the Preamble of the Zoning Ordinance on page 1 the intent of the �
�with a view to conserving the value of buildings and encouraging the most appropriate use
Improvements and expansions of this building would have no impact on the public safety more so than is existing. Public welfare will be enhanced by the improvements to the building which
will become more in alignment with growth in property values nearby. Public justice will be served. It will be a benefit to the adjacent districts as the value of the property is conserved,
a new conforming use would likely replace a less desirable use. It does appear it is the existing permitted use which impacts public concerns not the placement or improvements to the
building.
8 B. Staff Staff finds that if granted the proposed variance should not negatively impact public safety and welfare however, substantial justice will not be served to all others who
have complied with the specific terms of the Zoning Ordinance. Mr. Stills PowerPoint presentation consisted of aerial pictures, site plan, staff mark-up site plan showing the proposed
expansion, and various photographs of the building. Mr. Cameron called those to speak in favor of granting the variance request to come forward to be sworn in. The Chairman swore in
Mr. Robert David McCall, Mr. Henry Thomas Heitman, IV and Mrs. Mary Susan Young. Ms. Huffman asked Ms. Young to state her name. Ms. Young stated that her name as Mary Susan Young. Ms.
Huffman asked Ms. Young if she is the owner of the property located at 6485 Carolina Beach Road also Ms. Young answered yes. Ms. Huffman asked Ms. Young
if she signed the application requesting the variance. Ms. Young answered yes. Ms. Huffman asked Ms. Young is she wanted Mr. David McCall to speak on her behalf tonight. Ms. Young answered
yes. Ms. Young also presented a document to the Board that she said had approximately 50-60 signatures of neighbors in favor of having a restaurant at that location. �
�: Mr. David McCall said staff stated they had communicated with Environmental Health and was told that the outstanding issue was the septic. Mr. McCall said he contacted the
Engineering Department and was told that if his sewer and waterline came up to a certain point he could extend the building and turn it into a restaurant facility. He said staff stated
that they located 20 properties within 1,000 ft that are held to the same regulations but he could only find approximately 5 using Google Earth. Mr. McCall said he is a North Carolina
licensed architect and licensed building contractor. He has interpreted codes, ordinances, deed restrictions, federal and state regulations 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 as a commissioner for the City of Wilmington Historic Preservation Commission.
Mr. McCall stated they are adjacent to a residential district which requires a 55 ft setback and creates a hardship because he cannot expand the building. He said there is a yard distance
of 90 ft from his building to the front yard of the adjacent building and that area is not buildable. He pointed out on his PowerPoint presentation another building across the street
that he said was allowed to expand and did not have to conform to the same setback requirements. Mr. McCall said if they could only build within the setback there would be parking problems,
roof and floor plan problems. He submitted a letter from Howard Congleton, dated December 17, 2010 I, Howard Congleton am aware of the efforts by David McCall
to expand and improve the existing building at
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�nearby adjacent neighbor to the project. My B-2 property adjacent to 6485 Carolina Beach Road is 100 Heathcliff Road. Mr. McCall also submitted a letter from Kristin Reilly Newberry
who owns Children 1st Preschool, a daycare center at 6501 Carolina Beach Road. He read the following excerpts �
�will assist in bringing job availabilities as well as encourage more
money to be spent in this area for Since this economic dip we must find positive ways to make New Hanover
new permitted use, as a
restaurant. I also approve of the improvements to the building he has reviewed with the Board of Adjustment. Mr. McCall said the variance would allow the front of the building to be
improved and would allow reasonable improvement of an expansion at the rear of the building with no impact on the adjacent property. He proceeded to point out on his PowerPoint presentation
the various improvements he would like to make to the building. Mr. McCall then addressed the findings of facts, by stating: (1) He cannot secure a reasonable return due to the setback
requirements of the ordinance. (2) Hardship is the result of unique circumstances and not created by the owner. (3) Hardship is not the result of anything the owner has done. Building
value is depreciating due to the lack of improvements and reasonable expansion. (4) If granted the variance will be in harmony with the general purpose and intent of the ordinance. (5)
If granted the expansion will secure public safety and welfare by allowing reasonable improvements. Mr. McCall submitted into record a copy of the 1974 zoning ordinance that he said
has no reference to non-conforming buildings. He read a portion of Section 40-1 under Article IV: 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. He said this was not intended for non-conforming buildings. He added that language
from the 1974 ordinance has never been amended and it needs a text amendment to be amended. Mr. DeVita said text amendments should be before the County Commissioners and if the Board
rules in favor of the request they are putting some undue pressure on the County Commissioners to go along with the Board and change the wording of the ordinance. Mr. Lewis also said
this is not the venue to make text amendment decisions and should not be before the Zoning Board. Mr. Miller said the Board would be setting a precedent for someone else to come to the
Board requesting the same or similar thing. Ms. Huffman said Mr. McCall is suggesting that the Ordinance should be changed with a text amendment and that he has been trying to get staff
to ask the Commissioners to do this. She said this has not happened and had these amendments been made it would be a different situation. Ms. Huffman informed Mr. McCall that he is bound
by the ordinance as it presently reads and he needs to move on from
the topic of text amendments. Mr. Cameron asked if the business was still operating and Mr. McCall answered yes. Mr. Cameron asked Mr. McCall if they had looked into
raising and rebuilding.
10 Mr. McCall said not at all and he would not consider tearing down a building valued at a quarter of a million dollars. Cameron asked Mr. McCall if this is the smallest addition that
would work for him. Mr. McCall said he could not go smaller in size with the improvements that he needs to make. Mr. Miller asked if any similar cases had been before the Board. Ms.
Daughtridge said the boundaries of the B-2 zone go beyond that property across the street that Mr. McCall was referring to. She said having a restaurant or bar there is not subject to
conjecture because whatever the building does will be available to any use and it is not just the activity but also dimensional requirements. Ms. Daughtridge said the intent of the ordinance
has always been clear and there is opportunity for Mr. McCall to maintain and improve the building. She said the parking area is not an improved area and could be mobilized to another
area; and the location of the sewer does not matter. She said Mr. McCall is not prohibited from improving the building within its current footprint. Mr. Cameron asked if the building
could be moved. Mr. McCall said it is a blocked building and cannot be moved. He added that if the building would be placed where the conforming footprint is located there would be noise
from patrons coming out of the building going to the parking lot right beside the residential zoned property. Mr. Heitman said he is a commercial real estate broker and is representing
the sale. He said if Mr. McCall could only build in the current footprint it would be a hardship and would destroy the value of the property. He said the addition is minimal and a restaurant
is allowed to be at that location. Mr. Cameron called for any others that wish to testify to come forward. The Chairman swore in Mr. Milton Harry Stevenson and Mr. Rex Burford. Mr. Stevenson
said he is a board member at Laurel Ridge HOA and they do not have a problem with the expansion as long as it is a family restaurant. Mr. Burford said he is on the board of directors
directors and lives at Laurel Ridge. He said if the variance is granted they can do what they want to do with the property and there is no insurance that they will have a restaurant
because it is not on record. Mr. DeVita asked if the list submitted by the applicant of petitioners have standing and are residents of that community. Ms. Young said some of them do
have homes in the area. Mr. Stevenson said they do not want Codand they are not opposed to the expansion if a nonalcoholic restaurant is proposed. He said now
that Mr. Burford has pointed out there is no guarantee that they will have a restaurant he is not sure if they should support the expansion. The Chairman called for those to speak in
opposition to granting the variance request to come forward to be sworn for testimony. There was no one present to speak in opposition to granting the variance request.
11 PUBLIC HEARING CLOSED-Board Discussion Mr. Miller said one of the things in the findings of fact speaks to conserving the value of the building and encouraging the most appropriate
use of the land. He said there are other things that could be done to this building to conserve the value other than expanding it, which would eliminate the undue hardship argument.
He asked staff regarding the 20 properties that they found that are held to the same requirements. Mr. Still said they found 20 properties within 1,000 ft of that property that are in
the B-2 and are adjacent to residential zoning. Mr. DeVita asked staff how the building across the street got permission to build. Mr. Still said he would have to investigate to see
error, either way it would need to be brought into compliance. Mr. DeVita
said a variance is not needed to continue this project. He said any addition to this building would be created by the applicant therefore creating his own hardship. He said even though
the addition is in harmony with the neighborhood, improves the property and maintains the value of the building it does not fit into what the Board should be doing in granting variances.
Mr. Lewis agreed stating that Mr. McCall could make improvements in other areas and be in compliance with the ordinance. Mr. McCulley said the value could be improved in its current
condition and improvements could be made as it stands right now. He also mentioned the possibility of making the building taller. Board Decision 1. Mary Susan Young, 6485 Carolina Beach
Road, is requesting a variance from New Hanover County Zoning Ordinance Sections 32.1 Application of District Regulations, 55.4 (3)(A) Highway Business District, 44-1 and 44-5 Extensions
or Enlargement of Non-Conforming Situations, and 69.11 Setback Table. Property is zoned B-2 (Highway Business). Case No. ZBA-858. 2. On a motion by Mr. Miller and seconded by Mr. McCulley
the Board voted unanimously to DENY the variance request based on the fact that a reasonable use could be made of the property in its present state.. �
� within 30 days. There being no further business before
the Board, it was properly moved by Mr. Lewis and seconded by Mr. McCulley to adjourn the meeting. All ayes 7:20 P.M Acting Executive Secretary Chairman