ZBA 8-10
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, August 25, 2010. Members Present Members Absent Robert Cameron, Jr., Chairman
Eric Hickman Justin Lewis Tim Fuller, Alternate Noelle Winstead Peter DeVita, Alternate Peyton Williams Michael McCulley, Alternate Ex Officio Members Present Kemp Burpeau, Deputy County
Attorney Andrew Olsen, Attorney Jane Daughtridge, Planning and Zoning Manager J. Steven
Still, Acting Executive Secretary 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 ment 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 Mr. Williams and seconded by Ms. Winstead to accept the minutes from the
July 27, 2010 meeting. All ayes Mr. Cameron swore in County staff Mr. J. Steven Still Mr. Burpeau then outlined the parameters of the meeting
by proposing a 15-minute presentation time limit for each side. He stated that the issues would be limited to the decision made by the Planning Director that it is a minor change. Mr.
Burpeau said if the Board decides that it is a minor change then it would be within the urisdiction and if determined as a major change then it would be beyond the
Board, and the process would have to go back to the Planning Board and County Commissioners. Mr. Olsen asked the attorneys if they had any comments regarding
the proposal. Mr. Nichols said the time limit is fine with them. Mr. Ward said he and his witnesses needed more than 15 minutes to speak. He asked for 30 minutes and the Board agreed
to 20 minutes per side and would adjust if needed. Mr. Nichols requested to present his motion.
2 Mr. Cameron swore in Mr. Matthew Nichols. Mr. Nichols said he was representing Carolina Marina and Yacht Club. He said he filed a motion to dismiss the appeal earlier today and they
are going to the Court of Appeals on Monday. Mr. Nichols said Mr. David Ward appealed the Special Use Permit granted to his client by the County and Mr. Ward was determined by the Superior
Court to have no standing to challenge that Special Use Permit. Mr. Olsen asked the practical impact of Mr. Ward being excluded from Mrs. Mr.
Nichols said the court has determined that David Ward has no standing to challenge the Special Use Permit and therefore he should not have standing to challenge the minor modification
to the permit. Mr. Nichols said he has no problem with Violet Ward because being an adjacent owner, she does have standing. He said Judge Elkins, a NC Administrative Law judge, determined
that Mr. Ward had no standing (Exhibit B) when he tried to appeal the CAMA Major permit issued to Tim Ward. He said Mr. Ward appealed that decision to the Coastal Resource Commission
and they determined unanimously that Mr. Ward has no standing. Mr. Olsen said even if the Board would agree with Mr. Nichols and grant the motion to dismiss Mr. Ward, the appeal would
still go forward. Mr. Nichols said that is correct but Mr. Ward cannot represent his mother. Mr. Olsen said Mr. Ward would have to testify to what he knows of his own personal knowledge.
Mr. Nichols said he was not trying to exclude Mr. Ward from testifying but the Superior Court has determined that he has no standing and that is a jurisdictional decision. Mr. Olsen
asked staff if they had a position on this motion. Mr. Burpeau said staff is not joining in with the motion and their position would be even though Mr. Ward is not an adjacent owner
he does live in proximity to the property. He said the Ordinance says any aggrieved person has standing and it does not specify that they have to be an adjoined property owner. Board
Decision On a motion entered by Mr. Williams and seconded by Mr. Lewis the Board voted to DENY Mr. Nichols motion. All ayes The Chairman then called Mr. Still to give an overview of
the case. THE FIRST AND ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: David P. and Violet N. Ward, 1508 Burnett Road, have appealed revisions made to Special Use Permit #13 /S-582 for a
commercial marina at 1512 Burnett Road. Property is zoned R-15. Case No. ZBA-856
3 : In the past several years, this Board as well as the Planning Board and the County Commissioners have considered many appeals concerning this
property, filed by both the marina property owner and by neighbors. The special use permit for this marina project in a residential district was originally approved in 1971. In 2002,
2005, 2006, 2007, and 2008, the applicant has applied for and withdrawn six requests for modifications to include dry stack storage or to include a forklift pier. In five of the cases,
the Planning Boards have recommended denial. In one case, the Planning Board vote was split 3-3. In June, 2008, another application was filed for dry stack storage and forklift pier
under case number S-582. That request was denied by the County Commissioners in July, 2008. Subsequently, in August 2008, Carolina Yacht Club and Marina LLC filed a Petition for Writ
of Certiorari to Superior Court which was approved which essentially reversed the order of the New Hanover County Commissioners and issued approval of the modification of S-582. At that
point the enclosed site plan dated 12/16/09 was established as the current valid site plan. On December 22nd, 2009 Carolina Yacht Club and Marina LLC filed for a minor modification to
address technical issues related to the site plan for New Hanover County Fire Services, Coastal Area Management Act (CAMA) and New Hanover Planning and Inspections, with its approval
being uncontested. On June 16th 2010 Carolina Yacht Club and Marina LLC submitted another modification to the site plan to meet current CAMA regulations and to address an accretion of
sand on the adjacent side of the Intracoastal Waterway. The Planning Director is granted discretionary authority to approve changes in special use permits in certain conditions. New
Hanover County Zoning Ordinance, Section 71-1 (9) states that: (1) The original applicant(s), their successors or their assignee may make minor changes in the location and/or size of
structures provided the necessity for these changes is clearly demonstrated. Minor changes shall be reviewed by the Planning Department and upon favorable recommendation by the Planning
Director may be approved by the Superintendent of Inspections. Such approval shall not be granted should the proposed revisions cause or contribute to: (A) A change in the character
of the development. (B) A change of design for, or an increase in the hazards to pedestrian and vehicle traffic circulation, or (C) A reduction in the originally approved setbacks from
roads and/or property lines. (5/4/81) Therefore, the instances for which a minor amendment to a special use permit may NOT be granted include: A. where there is a change in the character
of the development B. where there is a change in the design for, or an increase in the hazards to pedestrian and vehicle traffic circulation, or C. where there is a reduction in the
originally approved setbacks from roads and/or property lines The changes identified on the submitted site plan by Carolina Marina and Yacht Club, LLC include: A. Dock Revision a.
Fixed pier length reduced b. Floating dockage linear feet and width reduce c. Use of dock side lift d. Reduced total water dependant structures square footage
4 e. Separation of two piers (2 feet) for safety B. Slight Realignment of concrete drive to enhance vision of forklift operator for safety C. Relocate wooden walkway from north side
of concrete drive to south side. This minor modification was approved on June 22nd, 2010 by Planning and Inspections Director Chris �
�with the exception of the use of the dockside lift.
No supplemental material were supplied on the details of the lift, therefore the approval letter dated July 8th, 2010 only states that the changes of the special use permit are: A. Dock
Revision a. Reduction in length of fixed pier. b. Reduction of linear feet and width of floating dock. c. Reduction in square footage of water dependant structures. d. Separation
of two piers. B. Relocation of concrete drive. C. Relocation of wooden walkway from north side of concrete drive to south side. The app
would not cause or contribute to a change in character of the development, would not increase
the hazards to pedestrian and vehicle traffic circulation, and does not reduce any previously approved setbacks. On July 22nd, 2010 David N. and Violet P. Ward filled an appeal to The
New Hanover County Board of Adjustment because they feel that the minor modification was issued in error. The decision that the board must make is: Did staff issue an approval to a minor
modification in error. The Board is reminded that a four-fifths majority vote is needed to overturn a staff determination. Counsel to the Board will respond to any questions the Board
may have as to procedure or as to the form of its decision in this case. All interested parties have been notified, as per the list of neighboring property owners provided by the Appellant.
Mr. Still ran a PowerPoint presentation which consisted of a site plan from January 22, 2010 showing an approved modification and the June 10, 2010 approved modification. He pointed
out the floating docks, the change in size of the pier, relocation of the driveway and the relocation of a pedestrian pier. Mr. Cameron asked if the dockside lift was included in the
current modification. Mr. Still said the dockside lift was proposed but was not included in the approved minor modification. Mr. Williams asked why the lift was shown on the plan but
not addressed in the approval. Mr. Still said there was no supplemental material applied and the statement of a dockside lift was not enough for an approval. He added that the approval
letter identifies the items included and the use of the dockside lift was not included. Mr. Cameron asked if the construction materials were equivalent from the previous plan to this
plan and Mr. Still said he has not seen any building plans or permits submitted at this time. Mr. McCulley said it appears all proposed changes are actually reductions. He asked Mr.
Still if this was because of the CAMA requirements.
5 Mr. Still said due to the accretion of sand on the other side they had to reduce the length of the pier and staff did not see this as an increased hazard for vehicles or pedestrians.
Mr. Cameron asked if the appeal was based on the dockside lift or the fork lift. ter addressed the dockside lift which is a
mechanical lift permanently fixed to the dock and used to pick up boats to transfer them to a fork lift for storage. He said they did not have materials to make a determination so it
was not included. Mr. Cameron called those to speak in favor of the appeal to come forward to be sworn in. The Chairman swore in: Mr. David Ward, Mr. Mark Phillips, Mr. Fred Altman,
Mr. Randall Ward, Mrs. Amy Ward, Mr. Ronald Thomas, Mr. Kenneth Lindsey and Mr. Donald Ward. Mrs. Violet Ward informed the Board that her statement would be read by her son, Mr. David
Ward. Mr. Mr. Ward said he lives at 1508 Burnett Road and has has lived there since March 2003. He said with the new modifications, the pier
would go from 58 ft wide to 90 ft wide and would be 30 ft closer to his . He said the dock attendant station is very large and will have a roof on it
which would block Due to time restraints and objections from Mr. Nichols, Mr. Ward read only the portion of prepared
statement that related to the issues of this case. He read the following: The Case to be heard by you today concerns a site plan revision to Special Use Permit S-13 granted by New
Hanover County to Carolina Marina LLC upon an Order of the Courts. We contend that this revision is contrary to the New Hanover County Zoning Ordinance, and New Hanover County Land Use
Plan. This site plan revision is unacceptable, undesirable and will have a bad effect upon the surrounding properties on which it would be built. We contend that this revision cannot
meet the standards of New Hanover County Zoning Ordinance 71-1 (9) (A), (B), or (C). We believe that the Planning Director Chris O'Keefe and Zoning Official Stephen Still did err in
granting a plan revision to Special Use Permit S-13 for Carolina Marina, LLC in that the standards of the New Hanover County Zoning Ordinance 71-1(9)(A), (B), and (C) have not been met.
Section 71-1(9) of the New Hanover County Zoning Ordinance states: The original applicant(s), their successors or their assignee may make minor changes in the location and/or size of
structures provided the necessity for these changes is clearly demonstrated. Minor changes shall be reviewed by the Planning Department and upon favorable recommendation by the Planning
Director may be approved by the Superintendent of Inspections. Such approval shall not be granted should the proposed revision cause or contribute to: (A) A change in the character of
the development, (B) A change of design for, or an increase in the hazards to pedestrian and vehicle traffic circulation, or (C) A reduction in the originally approved setbacks from
roads and/or property lines. It is the opinion of County Staff that this revision is a minor change however we believe that it is a major change and that this site plan should have to
go back before the Planning Board and the County Commissioners for their approval. The changes made are not a necessity. The changes to the forklift pier, makes a change in the character
of the development in that the character of the immediate surrounding area will be adversely affected. The changes do give a reducti�
�The task today before this Board is to decide whether or not this site plan revision meets the standards of the New Hanover County Zoning Ordinance 71-1(9)(A)
(B) and (C) and to answer 5 questions that the Ordinance seems to point out as necessary to meet the standards: (1) Is this revision only a minor change in the size or in the location
of the structure? structure? (2) Has it been demonstrated that the revision to the forklift pier is a necessity? (3) Does the revision cause a change in the character of the development?
(4) Will this revision cause a
6 change of design for, or an increase in the hazards to pedestrian and vehicle traffic circulation? (5) Will this site plan revision make a reduction in the originally approved setbacks
from roads and or property lines? Mr. Ward continued his testimony by stating that the current site plan shows a breakwater wall to be built along the entire end of the forklift pier
which will be 71 feet long from the bottom of the water to the top of the forklift pier. He said the previous site plan did not have a breakwater wall and the breakwater wall will change
the flow of the water current. Mr. Ward said they have a boat basin next to this project to keep their boat as well as their two adjacent neighbors. He said if this wall is allowed it
will cause their basin to fill in with sand and they will have to constantly dredge the basin to keep it open. He said the neighborhood drainage flows through ditches along Burnett Road
and empties into a small channel that flows through their boat basin out into the waterway. Mr. Ward said if their boat basin develops problems then numerous properties within the subdivision
will experience flooding issues. Mr. Randall Ward stated the 30% increase in the width of the pier is not a minor change. Mr. Kenneth Lindsey stated he lives at 161 Wetland Drive. Mr.
Lindsey said he knows the value of waterfront property and this change has lowered the value of his property. Mr. Fred Altman stated they own property north of this project and it is
not a minor change. He said this project will destroy their area and it never should have been approved. Mr. Ronald Thomas -in-
law. He said that the change was not a minor change but a very large change and there is a problem now with the existing pier. Mrs. Amy Ward stated she is the wife of David Ward and
the modification is a major change. Mr. Donald Ward stated the modification is a major change and a safety hazard because at low tide the water will run too fast. Mr. Mark Phillips stated
he lives at 1401 Burnett Road and owns property at 1312, 1313 Burnett Rd and 3 other wooded lots. He said he has over a million dollars tied up in these properties and this modification
is too big to be a minor change. Mr. Williams asked Mr. Still if the 2nd plan is larger than the 1st plan, as it has been testified to tonight. Mr. Still said they looked at surface
area and there is a reduction in total surface area. Mr. Cameron asked if the pier has gotten closer to the adjoining property owners. Mr. David Ward said the floating dock is not closer;
however the main structure is closer. He said the floating dock sits on the water and Tim Ward would need to build his pier higher out of the water due to tidal surges. Mr. Ward said
it is no longer a residential pier but an industrial sized pier and it has to be wider to accommodate the boat lift. Mr. Cameron called those to testify in opposition to the appeal to
come forward to be sworn for testimony. The Chairman swore in Mr. Timothy Ward and Mr. Blair White.
7 Mr. Nichols read a letter from Mr. Jimmy Fentress who he said is the engineer that drew up the plans. He said the letter has and
ve calculated the area of the water [and] Ward improvements to be 106 sq. ft. less on the current plan approved by the New Hanover County Planning Department and dated June 22,
2010 relative to the last like plan approved January 22, Mr. Timothy Wards statement Mr. Ward stated he is the sole owner of Carolina Marina and Yacht Club. He said the
fork lift, pier and floating docks have all been reduced in overall size by over 100 sq. ft. Mr. Ward said this change was necessary due to the accretion of sand on the opposite side
of the Intracoastal Waterway that narrowed the water body width. He said due to the narrowed distance across from mean high water from one side to the other, they had to reduce the length
of the pier and redesign it which is actually a beneficial change for Violet and David Ward. He pointed out the changes on the map, the drop zone location and where the boats would be
launched. He said the changed design afforded them additional protection from boat waves but with the reduction in the length of the pier the feasibility of moving this back is about
15 ft. in length. Mr. Ward said because launch and retrieve vessels have to be 30 ft he asked CAMA and County zoning staff if he could add
a wave continuation wall to prevent backlash from the fixed bulkhead at mean high water. He said no changes were made to any approved setbacks, roads or property lines and this is a
minor change that will lessen the impact. Mr. Cameron asked if the boat ramp was still going to be removed and Mr. Ward answered yes. Mr. Nichols presented a copy of a letter dated July
23, 2010 from the Planning and Zoning Manager, Ms. Jane Daughtridge to Doug Huggett of the Division of Coastal Management which states the County had no objections to the current approved
plan. Mr. Cameron said the County did a revision of the Ordinance which required setbacks of 2.75 times the building height. He asked Mr. Nichols to address that concern. Mr. Nichols
said they meet that requirement because they have a 110 ft setback and are not changing the location of any landward buildings or setbacks. Mr. Timothy Ward said they changed the concrete
driveway that will be used for the forklift from the S configuration to a straight driveway for safety and visibility concerns. He said they also switched the pedestrian walkway
from the north side to the south side which prevents pedestrians from having to cross the forklift area. Mr. Nichols said they are not changing the character of the development, not
adding boat slips, not changing the design of the driveways egress or ingress, and not changing any setbacks. He asked the Board to uphold the decision that these are minor changes.
was to store boats and trailers on a parking
lot. He said now that the drop zone has changed to be located at the end of the pier it will create a hazard for the public. He said the Ordinance does not say that the square footage
can be less and still go across setbacks. Mr. Ward said the pier has moved closer to the riparian line which is a violation and this is a major change.
8 PUBLIC HEARING CLOSED Mr. Olsen said there are three standards that Mr. Ward argues to about whether this is a minor change or not and there are (1) changes to the character of the
neighborhood, (2) a revision that will cause a hazard to vehicular traffic (boats) or (3) will the site plan make a reduction to the setback lines from the previous plan. Mr. Cameron
said a setback is a written requirement and as long as you are not within the setback you are in compliance. Mr. Lewis suggested the Board address the three questions. Mr. Cameron asked
the Board if they could see a change in the character of the development. Mr. Lewis said in comparing the two plans he could not see a major change in the character of the development.
Mr. Cameron asked if there was a major change in the design and a hazard to pedestrian and vehicular traffic. Mr. McCulley said he can see the logic of �
�Waterway is greater than it it needs to be and he could not see a boat getting close enough to hit someone. Ms. Winstead said
the survey is old but it appears that the depth of the water was not that different. Mr. Cameron asked if there was increased hazard to pedestrian and vehicular traffic. Mr. Williams
said this plan has less hazardous exposure than the previous plan. He said the drop off will now be on the south end of the dock instead of the main portion and that is better for the
homeowners. Board Decision: 1. David P. and Violet N. Ward, 1508 Burnett Road, have appealed revisions made to Special Use Permit #13 /S-582 for a commercial marina at 1512 Burnett Road.
Property is zoned R-15. Case No. ZBA-856 2. On a motion by Mr. Williams and seconded by Mr. McCulley the Board voted unanimously to UPHOLD the decision of the Planning Director that
the change is minor. There being no further business before the Board, it was properly moved by Mr. Williams and seconded by Mr. Lewis to adjourn the meeting. All ayes 7:20 P.M
9 Acting Executive Secretary Chairman