ZBA 7-10
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 Tuesday, July 27, 2010. Members Present Members Absent Robert Cameron, Jr., Chairman Eric
Hickman Justin Lewis Tim Fuller, Alternate Noelle Winstead Michael McCulley, Alternate Peyton Williams Peter DeVita, Alternate Ex Officio Members Present Sharon J. Huffman, Assistant
County Attorney J. Steven Still, Acting Executive Secretary Jim Iannucci, County Engineer 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 �
�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 Ms. Winstead to accept the minutes from the June 22, 2010 meeting. All ayes Mr. Cameron swore in County staff Mr. J. Steven Still and Mr. Jim Iannucci.
The Chairman then called Mr. Still to give an overview of the case. THE FIRST AND ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: CASE #: ZBA-855 APPLICANT: James & Janece Stone LOCATION:
201 Marsh Field Drive Zoning: R-15 REQUESTED VARIANCE: Applicant is requesting a variance from Conservation Space Setback Requirements of New Hanover County Zoning Ordinance Section
59.4-5, for an existing single family
2 STAFF COMMENTS: Mr. and Mrs. Stone are the owners of a home currently under construction
a building permit was submitted on April 1, 2010 and was issued on April 23, 2010 under Permit #10-3208. The
Count
y staff also failed to notice the required setback during plan review of the building application. Staff was notified of the error on June 14, 2010 from Paramounte Engineering. An investigation
req
uired setback. The protected resource in this case is salt marsh, and performance controls for this resource are listed in section 59.4-5 in the Table of Additional Controls. REQUIRED
STANDARDS: Section 59.4: Conservation Overlay District 59.4.1: 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 maintain the County's diverse and ecologically important natural systems; to preserve the County's
estuarine systems important for fin fishing and shell fishing; to provide open space; and to retain the County's archaeological and historical heritage. These COD's shall be in addition
to any other zoning districts where applied so that any parcel of land lying in a COD may also lie in one or more of the zoning districts provided for by this Ordinance. The development
of all uses permitted by right or by special use permit in the underlying district, if any, shall be subject to the requirements of both both the COD and the underlying district, if
any. In the event that the COD requirements conflict with the underlying district requirements, the requirements of the COD shall take precedence. If requirements for a particular item
are not specified in the COD but are specified by the underlying district, then the requirements of the underlying district shall be followed. 59.4-5 Additional Performance Controls
-In addition to the general performance controls specified in Section 59.4-4, additional controls shall be required to protect certain conservation resources in certain zoning districts.
The Table of Additional Controls lists for each resource and district the reference number of the group of additional controls that shall be required. If the parcel being developed is
associated with two or more conservation re-sources with conflicting performance controls, then New Hanover County Zoning Ordinance Page 89 the most restrictive controls shall apply.
However, improvements as specified in Section 59.4-4(3) may be permitted within the conservation space setbacks. Additionally, decks may be allowed to encroach into the conservation
space setback up to six (6) feet provided they are uncovered and constructed so that the floorboards are spaced to allow water to flow through directly to the ground. The ground below
the deck shall be either left undisturbed or planted with ground cover or other vegetation. (4/6/92) Conservation Resource Residential Non-Residential Swamp Forest (Min 5 acres) 4 3
Pocosin (Minimum 5 acres) 4 3 Savannah (Min 5 acres) 4 3 Natural Pond 3 2 Fresh Marsh (Min 1 acre) 3 3 Brackish Marsh 2 1 Primary Nursery Area 2 1 Barrier Island-Beach Complex 2 1 Maritime
Shrub Thickets 2 1 Salt Marsh 2 1 Animal and Plant (Natural) -
3 Areas of Special Significance 2 1 GROUP 2 (A) Conservation Space Setbacks -All structures and impervious surfaces shall be setback from the conservation space, if any, whether the
space is located on the parcel or on an adjacent parcel, a distance of at least 75 feet. (B) Retention of Runoff -In addition to designing the site to control stormwater from a 10 year
storm, on-site retention or percolation areas shall be required for the entire parcel sufficient to control, at a minimum, the first .75 inch of runoff that will originate from all impervious
surfaces anticipated to be on the site upon final development. The specified amount of runoff from impervious surfaces shall be disposed of by percolation into the soil, evaporation,
transpiration, or other methods of treatment or handling acceptable to the County Engineering Department. PRELIMINARY FINDINGS OF FACT: The applicant has asserted
Staff, in its review of the cas�
�the following statements. 1. The Board must find that if the applicant complies with the literal terms of the ordinance,
specifically, 59.4-5 he cannot secure a reasonable return from, or make reasonable use of his property. A. : Based on the stage
of construction of the house prior to the applicant discovering the encroachment, the approximate cost to demolish the current structure and re-construct it to its current level of completion
would cost approximately $310,000. Presuming an estimated home appraisal value of $680,000, the cost to demolish and reconstruct the house is approximately 46% of the estimated appraised
value. Analyzing the cost of demolition and reconstruction, it would take approximately thirteen (13) years to recover the financial loss based on a 3% annual increase. These figures
do not include additional interest and other out of pocket expensed incurred due to delays for demolition and reconstruction. B. Staff: Staff finds that if the applicant complies with
the literal terms of the ordinance it would be difficult to secure a reasonable return from or make reasonable use of his property. Staff does concur with the applicants proposed findings
that the cost associated with demolition and reconstruction would be impediments to a return from or use of the property. 2. The Board must find that the hardship in which the applicant
complains results from unique circumstances related to the applicants land. A. : The house as currently constructed on the lot
is located outside of the 500 year floodplain. The lot on which the house is located, while being long and narrow, has a unique bluff that is situated approximately 225 feet from the
front property line. The existing topography falls off from the bluff to
this bluff and outside of the 500 year floodplain. Due to the manner in which the �
�and towards the front of the property (Marsh Field Drive) would create an encroachment
into the floodplain.
4 B. Staff: Staff concurs with the applicants proposed findings that the relocation of the structure would place it in the 500 year floodplain. 3. The Board must find that the hardship
is not the result of the applicants own actions A. Applicant Asserts: The applicant had a survey prepared in conjunction with the �
�The applicant, based upon the information contained in the survey, provided a site plan along
with the building permit application which showed the proposed house location on the lot. A building permit for a single family residence was issued by the building inspector on April
23, 2010 (permit number 10-3208) and the applicant was notified by the surveyor that the original survey contained an error and the subject property was
immediately notified the authorities and halted construction B. Staff: Staff concurs with applicants proposed
findings that the presence of the COD was missed by the original surveyor and by zoning staff, therefore imposing a hardship on the applicant. The current engineers initiated the effort
to remedy the issue. Had the engineers not contacted the zoning department the discrepancy may have never been revealed. 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�
�protect the natural resources of the land by providing a vegetated filter form stormwater runoff. To be in harmony with the and preserve the spirit
of the ordinance, the applicant proposes to direct the roof leaders which collects sto�
�sto�
�the conservation
resource. B. Staff: Staff concurs with the applicants proposed findings that if granted with the provisions of the stormwater design features the variance would be in harmony with the
general purpose and intent of the ordinance. 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: the home in its current location is outside the 500 year floodplain which minimizes the risk for loss of life and property damage and will not �
�cerns regarding stormwater runoff are addressed by the re-direction of the roof leaders which
collect sto
B. Staff: Staff finds that if granted variance will secure the public safety and welfare and will do substantial justice.
5 Mr. Still ran a PowerPoint presentation in support of his summary which consisted of aerial maps, map showing the salt marsh, survey showing the COD line, and various photographs of
the property. Mr. Michael Lee said he is representing the appellants. He ran a PowerPoint presentation which consisted of a survey of the property showing the COD line, pictures showing
the encroachment, aerials and other various photographs of the property. Mr. Lee pointed out a steep grade on the lot which he said was the reason the house was positioned in that location.
Mr. Lee said the Stones have lived in this neighborhood for 12 years and purchased their lot in 2008. He said when they decided to build on the marsh they hired an architect, got a survey
of the property, obtained their permits and started construction in 2010. Mr. Lee said after they started construction the surveyor called to inform them of the error and the architect
notified the County. Mr. Lee said so far Mr. and Mr. Stone have spent about $175,000 and if they have to demolish it the demolition and reconstruction would be $185,000 with a total
cost of approximately $360,000 depending on if they can keep the same design. He said the appraised value of the house in 2008 was $680,000. He said the unique circumstances would be
that the lot is long and narrow, the steep grade and the building area is outside the 100 and 500 year floodplain which limits where they can build. Mr. Lee also said they plan to create
an infiltration structure to divert the water coming down from the gutters to prevent the water from streaming down to
the resource. Mr. Lee also pointed out that this will not impact the flood rating for the County. Mr. Cameron asked if any portion of �
� Mr. Stone pointed out the septic area on the map and said none of Ms. Winstead asked
how the marsh line was established. Mr. Still said a Paramounte surveyor flagged it; the County rechecked it and agreed with the surveyor. Mr. Cameron asked if the resource is all salt
marsh. Mr. Lee said yes, it is all the same throughout the lot. He also said it is a heavily wooded lot with a significant amount of large hardwood trees all around. Ms. Winstead said
her guess would be marsh and uplands due to the quick rise. Mr. DeVita said it appears that a lot of fill dirt was on the lot. He asked if the floodplain was filled in. Mr. Stone said
there is no fill dirt. He said they excavated a knoll at the top of the hill to accommodate the driveway and put a basin on one side. Mr. DeVita said the surveyor made a gross error
and is now before the Board to get approval for the error. He also said the County inspector is also to blame in this matter. Ms. Huffman said the job of this Board is to grant or deny
variances and if the variance is granted the Board helps to take care of a problem caused by several people negligence. If the variance is denied then there could be a law suit.
Mr. Cameron asked Mr. Still in regards to where a house is constructed on a lot.
6 Mr. Still said FEMA reviews the amount of variances issued and if the structure was in the flood zone �
�explained that the County is a CRS community and has adopted higher standards which means County homeowners in a flood zone get a reduction on their insurance premium. He said if
too many floodplain variances are granted FEMA could revoke our rating which would remove the reduction on the insurance premiums. 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 granting the variance request. PUBLIC HEARING
CLOSED Ms. Winstead said she was not sure of the hardship in regards to the 500 year floodplain in the sense that it may suggest that the Board would grant a variance in order to get
them out of the floodplain, or that the Board would allow a variance to go into the COD COD over them being located in a floodplain and having to elevate their structure. She said another
answer to the hardship question would be the topography of the land and the County missing the error. Mr. DeVita said the error is not the fault of the appellants and he would approve
granting the variance request. Mr. Cameron said he likes that they engineered a solution to take the water out of the COD.
Board Decision 1. James and Janece Stone, 201 Marsh Field Drive, is requesting
a variance from the Conservation Overlay District requirements of New Hanover County Zoning Ordinance Section 59.4:, for a single family residential structure, Property is zoned R-15.
Case No. ZBA-855 2. On a motion by Mr. Williams and seconded by Ms. Winstead the Board voted unanimously to GRANT the variance request based on evidence of hardship presented, the solutions
presented, the findings of fact showing they will be in harmony with the spirit of the Ordinance, public safety and substantial justice. BOARD BUSINESS The Board voted unanimously to
accept the change to the Zoning Schedule for the remaining of the year. The meetings will be held on Wednesdays until January 2011. There being no further business before the Board,
it was properly moved by Mr. DeVita and seconded by Ms. Winstead to adjourn the meeting. All ayes. 6:27 P.M. Acting Executive Secretary Chairman