ZBA 5-10
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 May 25, 2010. Members Present Members Absent Robert Cameron, Jr., Chairman Noelle Winstead
Eric Hickman Justin Lewis Peyton Williams Peter DeVita, Alternate Michael McCulley, Alternate Tim Fuller, Alternate Ex Officio Members Present Sharon J. Huffman, Assistant County Attorney
Jane Daughtridge, Planning and Zoning Manager Sam Burgess, Planner J. Steven Still, Acting Executive Secretary Christine R. Bouffard, Zoning Code Official Hattie Moore, Clerk The meeting
was called to order 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 �
� 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 Mr. Williams and seconded by Mr. Hickman to accept the minutes from the April 27, 2010 meeting. All ayes Mr. Cameron swore in County
staff: Ms. Jane Daughtridge, Mr. J. Steven Still and Mr. Sam Burgess. The Chairman then called Mr. Still to give an overview of the case. THE FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS:
Thomas S. Reeves, 8200 Lantana Lane is requesting a variance from Conservation Space Setback Requirements of New Hanover County Zoning Ordinance Section 59.4-5, to construct a residential
pool. Property is zoned R-15. Case No. ZBA-851 (Continued from the April 27, 2010 meeting) COUNTY OVERVIEW: Mr. Still stated Mr. Reeves is the owner of the property located at 8200 Lantana
lane in the Porters Neck area of New Hanover County. He is applying for a variance from the Conservation Overlay District of New Hanover County Zoning Ordinance Section 59.4-5 Additional
Performance Controls to �
�natural pond the parcel would be encumbered by a Group 3 Performance Control which states that all
2 structures and impervious surfaces shall be setback from the conservation space a distance of 50 feet. The parcel resides in Kirkland Estates which was approved for subdivision on
May 12, 1993 and was modified on April 23, 2004. Since the subdivision was platted after December 1, 1984 it would not qualify for exemption from any of the performance controls. The
plat shows that the rear of the subject parcel is encumbered by a 50 foot Conservation Overlay District setback. Mr. Reeves purchased the property on January 12, 2006 and received a
building permit to construct his primary residence on 2/8/2006. The building permit states that the structure must be located outside of the 50 foot Conservation Overlay District Setback.
Mr. Still then ran a PowerPoint presentation in support of his summary which showed the plat of property, aerials and photographs of the property. Mr. Still also pointed out a photograph
of a slab that was constructed on the property without a permit. He said Mr. Reeves has been issued a letter of violation for the slab and Mr. Reeves has indicated that he would apply
for a variance. Mr. Cameron called for those to speak in favor of granting the variance request to come forward to be sworn or affirmed for testimony. Mr. Cameron swore in Mr. Thomas
S. Reeves, Jr., Mrs. Sherry Reeves and Ms. Wendy Purser. Mrs. Reeves stated they had a survey done and the area where the surveyor placed the swimming pool is too close to the back steps
of the house. She said they want a 32 ft setback instead of a 37.9 ft. setback and the house has 15 ft easements on each side requiring 25 ft on the front, so the house could not be
any closer in the front. She said timpact on the protected area
or adjacent waters; and no other construction will extend into the adjacent waters. Mrs. Reeves said the swimming pool is not an impervious surface and will not cause erosion or runoff.
She said they did not realize the ramifications of being adjacent to a COD and the limitations in the use of their property because of the COD. Ms. Wendy Purser stated she is the owner
of Hampstead Pools and Spa. Ms. Purser said she is a licensed contractor for swimming pools and a pool specialist. She read from New Hanover County Zoning Ordinance, Section 59.4-1 Conservation
Overlay District: Purpose-The purpose of the Conservation Overlay District (COD) for conservation resources is to protect important environmental and cultural resources within the County.
Protection of these resources is necessary to natural systems
estuarine systems important for fishing and shell fishing; to provide open space; and to retain the �
�heritage. Ms. Purser stated the following in response to the requirements of the Ordinance: 1. This is a natural system used in the retention of water. The pond dates back to
1949, and the second lot was purchased to further retain water. 2. They are not encroaching on any open space that does not belong to the home owner and there is no obstruction above
the ground or in air space. 3. The placement of the pool will not harm the environment and there will not be any backwash of water; and the pool overflow will be released into the ground
to filter out naturally. 4. Swimming pools consume less than 3% of water usage. 5. The pool is considered to be pervious. Ms. Purser continued by referencing the General Assembly of
North Carolina Session 2007 Session Law 2008-211 Senate Bill 1967-An Act to Provide for Improvements in the Management of Stormwater in the Coastal Counties in Order to Protect Water
Quality, Section 2(a) Built upon area�
�vious or partially pervious paving material to the extent that the paving material absorbs water or allows water to
3 infiltrate through the paving material. Ms. Purser said it is also stated in the NC Environmental Management Administrative Code T15A.2H.0100 that swimming pools are pervious; and
the discharge water of the swimming pool is allowed and does not need a special permit. Mr. Cameron asked about the concrete pad around the swimming pool. Ms. Purser said it is impervious
pavers. Mr. Cameron asked other options were there for surfaces around the pool. He also asked if all the surface materials were impervious. Ms. Purser said there are a number of other
surfaces such as slate, rock, and wood. Ms. Purser said if the pool is pervious then the wood deck would be pervious. Mr. Cameron asked if the pool is as close to house as it can get
and could it be located in the rear. Ms. Purser said yes and it is an 18 ft difference. She said it could not be in the rear because the side setbacks are 15 ft. Mr. Still said as a
point of clarification, swimming pools are defined in the Ordinance as a structure. Ms. Purser read read the next sentence in Section 59.4 -1 of the Ordinance -These �
�addition to any other zoning districts where applied so that any parcel of land lying in a COD may also lie in any one or more of the zoning districts provided by this Ordinance.
The development of all uses permitted by right or by special use permit in the underlying districts, if any, shall be subject to the requirements of both the COD and the underlying districts,
if any. She said the area where they are encroaching is small and the COD specifies development not swimming pools. She said the swimming pool is not a structure but an accessory use.
Ms. Purser read from Section 23 the definition for lakes and ponds Natural or artificial bodies of water which retain water year round. Artificial ponds may be created by dams or
may result from excavation. She said this identifies more like a swimming pool than a structure and is also a pervious body of water. She then read the definition of a structure from
the Zoning Ordinance under Section 23-Anything constructed or erected within a fixed location on the ground, or attached to something having a fixed location on the ground, among other
things, structures include buildings, mobile homes, walls, fences, and poster panels. Ms. Purser said a swimming pool is not on the ground and there is no reference to a swimming pool
being a structure. Mr. McCulley asked Ms. Purser what she based her conclusion on that there would not be any environmental impact. Ms. Purser said it is because of the EPA chemicals
that are placed in the pool. She also added that the chlorine levels in a swimming pool are kept at a lower level than city drinking water. She said Stormwater Management and the Environmental
Code of NC do not consider filtered backwashing as harmful. Ms. Purser said pool water cannot be dumped into the storm drain and with this pool there would be an automatic water leveler
to pipe it into the ground. Mr. McCulley asked if she consulted with anyone about the environmental impact. Ms. Purser said not on this case. Mr. McCulley asked if she considered any
other impacts. He also asked if any special precautions are taken when putting in a pool.
4 Ms. Purser said they considered everything and they would put up silt fences as a precaution. Mr. Fuller asked if the apron and deck around the pool are considered impervious. Ms.
Purser said yes and that is why they want to use impervious pavers. Mr. Fuller asked if trying to minimize environmental impact and runoff would it not be better to use something that
is pervious material rather than the concrete. Ms. Purser said the impact from the impervious pavers is minimal. Mr. Fuller said minimal is not the standard of the Ordinance. He said
the Ordinance states there should be no impact inside the 50 ft setback and there will be some impact. Ms. Purser said they have decreased the area of impervious because the pool is
pervious. She said the edge of the COD is at the edge of their property. Mr. Fuller said the entire pool is in the 50 ft setback. Mr. Fuller said he traced the footprint of the pool
and it appears it would fit in another corner of the lot. He pointed to that location on the map but Ms. Purser said the deck would not fit due to the setback. Ms. Purser asked Mr. Still
how far in the setback could they go with the deck if under 600 sq. ft. Mr. Still said they can go 5 ft off the side and rear lot lines if under 600 sq. ft. Mrs. Reeves said the problem
is that there is no privacy and that location is a future repair area for the septic. Mr. Hickman asked if the design of the apron would take the water away from the pool. Ms. Purser
said yes, the apron would be graded to take water away from the pool. Mr. Reeves said the concrete slab will be torn up and he will not apply for a variance for the slab. He said he
did not realize it was in the COD setback. Mr. Fuller said it was stated on the building permit that the property was in the COD. Mr. Reeves said he missed reading that due to him being
in a hurry to get his house built. The Chairman called for those to speak in opposition to granting the variance request to come forward to be sworn or affirmed for testimony. There
was no one present to speak in opposition to the variance request. PUBLIC HEARING CLOSED Board Discussion Mr. Cameron said the research was extensive but they have to go with what
the Zoning Ordinance states; that it is a structure. Mr. McCulley said it definitely is a structure and will have an impact.
5 Board Decision 1. Thomas S. Reeves, 8200 Lantana Lane is requesting a variance from Conservation Space Setback Requirements of New Hanover County Zoning Ordinance Section 59.4-5, to
construct a residential pool. Property is zoned R-15. Case No. ZBA-851 (continued from the April 27, 2010 meeting) 2. On a motion by Mr. Williams and seconded by Mr. Fuller the Board
voted unanimously to DENY the variance request. THE SECOND AND LAST CASE BEFORE THE BOARD WAS AS FOLLOWS: Royal Palm Mobile Home Park LLC, 5140 Carolina Beach Road is appealing a determination
from the New Hanover County Planning and Zoning Manager to replace mobile homes in a mobile home park that was recently rezoned by the applicant to (CD)R-10 Conditional Zoning District
for high density condominium use. Case No. ZBA-853 COUNTY OVERVIEW: Mr. Still stated
from the New Hanover County Inspections Department to replace a mobile home within the Royal Palms Mobile Home Park which in the Monkey junction
area of New Hanover County. The permit was denied by a zoning enforcement official because the parcel of land on which the mobile home park is located is currently encumbered by a Conditional
Use Rezoning for high density condominiums. The Conditional Use rezoning was voluntarily applied for by Royal Palms Mobile Home Park LLC in May 2009 and was approved by the County Commissioners
on June 6th, 2009 for 288 high Density Units. New Hanover County Zoning Ordinance section 59.7-4 (7) Effect of Approval states that: (A) If the petition/application is approved, establishing
the Conditional Use District, all conditions attached thereto by the companion Special Use Permit shall be binding on the tract included in the Conditional Use District and all subsequent
development and use of the tract shall be in accordance with the approved plan and conditions. No building permit shall be issued for any development within a Conditional Use District
except in accordance with an approved Special Use Permit. (B) If any condition imposed under the companion Special Use Permit is found to be illegal, the approval of both the Special
Use Permit and the Conditional Use District shall be null and void, and the tract shall be rezoned in accordance with the process for map amendment outlined in Section 112. (12/07) Therefore,
when the parcel was conditionally rezoned for high density units the mobile home park essentially became invalid and any building permit must be in accordance with the conditional use
rezoning. To this date our office has not received any building permits for construction associated with the high density condominium. This situation does no
-there is no change in regulations adopted by the governing body.
In this case the rezoning was made by rdinance.
6 However, County staff decided to exercise leniency due to the current economic climate and decided to treat the park as a valid non-conformity. In essence this decision would allow
the park to remain in use and would allow the owners to apply for building permits to change out mobile homes. However, under the aforementioned circumstances any work must be in accordance
with the previously approved site plan for the mobile home park. On April 20th, 2010 the applicant brought in a surveyed site plan to replace a mobile home on a lot that was not consistence
with the approved site plan for the mobile home park. County staff has given the applicant the ability to bring in a revised master site plan to reflect any changes that have been made
to the site layout in order to continue the use of the mobile home park as a valid non-conformity. The applicants state that the cost to produce a surveyed site plan of the park is an
expense that they are not willing to incur. The Chairman called for those to speak in favor of upholding the appeal to come forward to be sworn or affirmed for testimony. Mr. Cameron
swore in Mr. Steve Riggs, Mr. Fernando Garzon and Mr. Richard Morgan. Mr. Garzon said he is the manager at Royal Palms Mobile Home Park. He said they want to be able to replace a mobile
home with the same size mobile home when someone moves out. He said per the tax records, they have 191 spaces. Mr. Cameron asked staff to explain the issue. Mr. Still said there is an
approved master site plan for the mobile home park. He said when they came in to apply for a building permit to place a mobile home on the site, their site plan was not consistent with
the master site plan and they were instructed to bring in a revised master site plan. Mr. Still then passed the master site plan to the Board and proceeded to point out the differences
survey and the master site plan. Mr. Olsen asked staff if the County is asking the appellants to bring in a site plan that conforms with the original
plan that was approved for the park or a new survey that would show the current layout of the park and amend the site plan to conform to that new survey. Mr. Still said Ms. Daughtridge
could better provide information regarding the site plan. Mr. Olsen asked Ms. Jane Daughtridge to provide her testimony. Ms. Daughtridge said the site plan was signed in 1981 and was
an extension of the old site plan which shows they added 60 spaces in 1981. She pointed out the differences in the plans and said adjustments have been made but they have not produced
a new master plan that shows those adjustments. Ms. Daughtridge said a portion of the park is in the Floodplain and they have brought in elevation certificates. She said a Conditional
rezoning was requested by the owners and was granted by the Commissioners June 1, 2009. She said they were represented by Cape Fear Engineering, Atty. James Eldridge and Mr. Richard
Morgan. Ms. Daughtridge said the Zoning Ordinance states a Conditional District requires a companion Special Use permit and a site plan. She said a Conditional District is intended for
voluntary firm proposals; not tentative projects, and if approved they have 24 months to pull a building permit. She said the site plan that was approved showed there were 191 mobile
homes to be removed and when they came in for building permits, they were told no building permits would be issued because it was not in compliance with the Special Use permit. Ms. Daughtridge
said she spoke with Mr. Burham, one of the owners, and he said they wanted to maintain what they presently have in place; a mobile home park until the economy is better. Ms. Daughtridge
said they could
7 continue operating as a mobile home park but she needed a valid site plan and they decided that is not something they want to provide. Mr. Fuller asked Ms. Daughtridge if there was
any reason to believe they have exceeded 190 spaces. Ms. Daughtridge said we do not know if they have exceeded 190 spaces because we do not have a site plan that reflects current conditions.
She just needs to know where they are located in the park. Mr. Morgan said Royal Palm Mobile Home Park was granted 190 spaces and they do not intend to deviate from that plan. He said
they intend to develop the property but due to economic times they decided to continue operating as a mobile home park. Mr. Morgan said they want to be able to replace the home when
someone leaves, as originally granted and he feels they are being penalized because they went for the rezoning of the property. Mr. Morgan said they want to maintain the property and
the undo expense of having to get a site plan is not warranted. �
� verifying that there are only 190 mobile homes on the site. Mr. Morgan said they do not want to undergo the expense of getting a site plan
and they just want to be able to replace a home when someone moves out. He said they are within 190 spaces. Mr. Garzon said there are 191 power mete�
� meter. Mr. Hickman asked if the meters are permanent or can they be moved around. Mr. Garzon said they can be moved around. Mr. Fuller
asked if they were on a T-pole. Mr. Riggs said they are on pedestals with a DW number from Progress Energy. Mr. Cameron asked if there was a plan on file that shows where everything
is currently located on the lot. Mr. Riggs said they do not put up lot lines. He said they line up the new mobile home with an existing mobile home and boundary lines are are established
by placing a bush or something similar. Mr. Riggs said the only time they draw out anything is with a revision so they can relocate a lot. Mr. Cameron asked the cost of getting a site
plan. Mr. Riggs said his surveyor told him it would be $20,000. Mr. Cameron asked if there was a firm date to develop the lot and Mr. Riggs said no. Mr. Morgan said when they executed
the original conditional rezoning there was a deadline to it. He said due to economic hardship and assuming there are no issues, their plan is to extend that deadline. Mr. McCulley asked
if an aerial photograph would show where everything is located. Ms. Daughtridge said Royal Palms was told that they did not need a survey but it needs to be drawn to scale, with dimensions
that accurately represents what is currently on the lot.
8 Mr. Olsen asked if they came in with a different site plan with the total number of conforming units shown would staff approve it or another discretionary body. Ms. Daughtridge said
unless they were proposing something or showing something that was not in line with what was originally approved, then it would be administratively approved by the Director of Planning
and Inspections. Mr. Fuller asked how important was it that the lots are not platted but are shown on the plan to limit the number of mobile homes placed in the park. He asked how important
is it to talk about the lots and whether or not exceeded the total number
of units, and have tried to maintain the required distances between the homes. Mr. Fuller said if they had never applied for the Conditional use for the high density development they
would have come in one by one and would never have triggered any questions from the permitting permitting staff. Mr. Cameron said the County has allowed this to go on but the County
could have ended the use as a mobile home park entirely which would have resulted in a much more severe penalty. He said this is a stop gap that the County is letting occur until whatever
time in the future that it is redeveloped. Ms. Daughtridge said they need everyone to be working off the same framework. She said the transitional period is between now and when they
begin development or when the permit expires. She said the clock will start ticking on the permit on Jan 1, giving them 24 months to start the apartments. Mr. Cameron said it could be
3 more years of operating as it is. Mr. Fuller asked if the Board has the autho
own admission, they had no authority to make. Mr. Olsen said the real issue is not in front of the Board because it has not been appealed so the Board does not have jurisdiction
to tell staff to go back and do it according to the written word of the Ordinance. He said what they have tonight is an appeal of the decision that staff made under the authority that
they thought they had. If the Board decides that staff did not have the authority, either forget about the decision or condition it appropriately. Mr. Fuller said if the Board rules
that staff did not have the authority then it would mean they could not issue any kind of permits. Mr. Olsen said that issue did not come before the Board so staff needs to decide if
they would require certain conditions. He said the issue is the site plan and not the rezoning. Mr. Cameron called Mr. Morgan for rebuttal. Mr. Morgan said they want to continue operations
until they develop the property and any other decision is punitive from a standpoint of not allowing them to continue. He said they are being punished and will be forced to either cancel
their conditional rezoning or continue to bring in mobile homes from now until the deadline, or whenever the economy turns around and they can develop their property. Mr. Cameron said
it appears the County would accept less than a full survey. He asked if they have explored the possibility of doing a limited site plan.
9 Mr. Fernando said they cannot draw lot lines because they are based on the placement of the homes and there are no setbacks. Mr. Olsen asked if the Board is suggesting a fly over to
obtain aerial photographs and number each home from above. Mr. Daughtridge said dimensions needs to be on the lot along with square footages associated with them. She said there has
to be lines in order to establish the square footages. She said the park has to comply with the Mobile Home Park and Travel Trailer Ordinance, so they cannot just move the lots around
or there would be no assurance that they were meeting the minimum requirements for mobile home spaces and the homes have to be placed within the approved spaces. Mr. Williams said staff
has said they are not looking for a certified survey but what is on the lot. He said they need to bring something to Ms. Daughtridge showing what they have and go from there. Mr. Williams
said they should not be able to just do what they want to do. PUBLIC HEARING CLOSED Board Discussion Mr. Cameron said it is an expense but the County has done them a favor in a lot
of ways. He said there is a potential 3 year window where the County would have no way to go onsite and verify the number of mobile homes. He said the mobile homes could be moved around
and the County would have no way of knowing where the homes are located on the lot. Mr. Cameron said $20,000 is a lot of money and he does not know if a cheaper way has been explored.
Mr. Williams agreed. He said it is their responsibility to come up with something to satisfy the concerns about where the trailers are located. Mr. Cameron asked staff
if the appellants decided that they did not want the expense of getting a survey and just wanted to wait until the economy turns around and not do the permit for the new development,
could they continue to operate the park but not replace any mobile homes that move out of the park. Mr. Still said permits can be issued only in accordance with an approved site plan.
Mr. Hickman asked if there was a way to tie to the idea that there are 191 meters and if a mobile home is moved out they could not move the meter around but another mobile home has to
be moved in and tied to that electrical source. Mr. Fuller said they could take a full size of the existing site plan and mark the location of the meter pedestals and that way staff
could make sure they are conforming to the spacing. Mr. Cameron said whatever they decide tonight would create a precedence for any other changes along the way. Mr. McCulley said both
sides have merit and the County is entitled to some documentation as to the current status of the park but the question is how high to make the bar that they have to get over in terms
of documentation. Mr. Olsen asked Ms. Daughtridge if it would be acceptable if they drew in mobile homes on the existing site plan in equal distances along the road and the mobile homes
could be identified as singlewide or doublewide by the lot number and the power pole number that they are hooked up to
. 10 Ms. Daughtridge said they are looking for a defacto as-built but it does not have to be a real as-built. She said they can draw equal distance lines between homes and mark
the power poles with dimensions. She said even though they may place a singlewide in a slot for a doublewide that is acceptable with staff but it is still a doublewide space and still
laid out that way. Ms. Daughtridge said it needs those spacings so staff can know if the square footages are correct and when they come in for a permit it would show setbacks. Mr. Cameron
asked if the Board could place conditions on it. Mr. Olsen said the Board could grant the appeal or grant the appeal with specific conditions. Mr. McCulley suggested tabling it until
the appellant and County comes up with something. Mr. Olsen said if they table this and the parties come up with something the County will agree to, then this can be continued to the
next Board date. Board Decision: 1. Royal Palm Mobile Home Park LLC, 5140 Carolina Beach Road is appealing a determination from the New Hanover County Planning and Zoning Manager to
replace mobile homes in a mobile home park that was recently rezoned by the applicant to (CD) R-10 Conditional Zoning District for high density condominium use. Case No. ZBA-853 2. On
a motion by Mr. Williams and seconded by Mr. McCulley the Board voted unanimously to CONTINUE the case to the June 22, 2010 meeting. There being no further business before the Board,
it was properly moved by Mr. McCulley and seconded by Mr. Hickman to adjourn the meeting. All ayes Acting Executive Secretary Chairman