ZBA-3-11
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, March 22, 2011. Members Present Members Absent Robert Cameron, Jr., Chairman Eric
Hickman Noelle Winstead Justin Lewis Peter DeVita Joe Miller, Alternate Michael McCulley, Alternate Ex Officio Members Present Sharon Huffman, Assistant County Attorney J. Steven Still,
Acting Executive Secretary Christine R. Bouffard, 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 Zoning 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 Zoning Board also hears appeals of �
�appellants have thirty days in which to appeal any decision made by the Board to Superior Court. It was properly
moved by Mr. Miller and seconded by Mr. DeVita to accept the minutes from the February 22, 2011 minutes. All ayes. Mr. Cameron swore in County staff Mr. Steven Still and Ms. Christine
R. Bouffard. FIRST AND ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: Bradley Point LLC, 2 Backfin Point, is requesting a variance from the side setback requirements of New Hanover County
Zoning Ordinance Section 51-2 (4), for an existing structure that encroaches 1.73 feet into the 15 feet required setback. Property is zoned R-20S. Case No. ZBA-860 Ms. BouffardOverview:
Bradley Point LLC is the owner of the home located at 2 Backfin Point, Figure Eight Island. A recent as-built survey revealed that a corner of the structure on on the northern side of
the house encroaches into the side-yard setback. New Hanover County Zoning Ordinance, Section 51-2:4 states that the minimum side-yard setback for R20-S zoning is 15 ft., the existing
corner of the structure intrudes a 1 foot .73 inches into the required setback. The setback violation was discovered when the property was put up for sale and a new survey was prepared.
The applicant states that the setback violation has existed since 2002 and that to comply with the literal terms of the ordinance he would have to perform substantial reconstruction
of the existing structure which in turn would create a hardship.
2 REQUIRED STANDARDS: Section 51: R-20S Residential District The R-20S Residential District is established as a district in which the principal use of land is for low density single-family
residential purposes. The regulations of this district are to permit development compatible with the preservation of its rural character and providing limited growth. It is designed
to accommodate residential opportunities for those who desire exurban, low-density lifestyle and are willing to assume the costs of providing many of their own services and amenities
while maximizing the protection of resources and the conservation of open space. Mobile homes, duplexes, residential clusters, attached residential and high density attached residential
uses shall not be permitted. 51-2: Dimensional Requirements: 1. Minimum Lot area 20,000 Square Feet 2. Minimum Lot width 90 feet 3. Minimum Front Yard 30 feet 4. Minimum Side Yard 15
feet 5. Minimum Rear Yard 25 feet 6. Maximum Height 35 feet PRELIMINARY FINDINGS OF FACT: �
�its review of the case,
following statements. 1. The Board must find that if the applicant complies with the literal terms of the ordinance,
specifically, compliance with the required 15 foot side setback he (can/cannot) secure a reasonable return from, or make reasonable use of his property. A. �
�: The configuration of the pie shaped lot in relation to all side setbacks prevents reasonable use of the property. Also, the consideration of the practical difficulties
of demolishing the corner of the existing structure to meet the minimum setback requirements. B. Staff Staff submits that the applicant can secure a reasonable return and reasonable
use of the property. This situation occurs occasionally because the County has no policy in place that requires as-built foundation surveys. Additionally, it has not been the policy
of the County to expect reconstruction in these circumstances. 2. The Board must find that the hardship in which the applicant complains results from unique circumstances related to
the applicants land. A. : The configuration of the lot in relation to all setbacks. B. Staff Staff disagrees that the pre-ex�
�land.
3 3. The Board must find that the hardship is not the result of the applicants own actions A. Applicant Asserts: The existing structure was constructed in 1993. In 2002, a two car garage
with heated space above was added by the original owner. A licensed general contractor completed this addition and the County Inspections Department issued a certificate of occupancy.
This property has been sold twice without knowledge of the encroachment. B. Staff Concurs 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�
�equals to a total area of 3.97 square feet of footprint inside the 15 feet setback, due to the orientation of the structure in relation to the lot. In turn, only .05 percent
of the setbacks overall area is encroached upon. Also, there is more than adequate adequate existing vegetative buffer that serves as a natural screen on the property line that is in
question. Please see attached photos. The property encroachment has existed since 2002 without any complaints from neighboring property owners. B. Staff Concurs 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 encroachment does not present a health hazard or affect
the safety or well being of the adjoining neighbors. The condition has existed since 2002 when it was renovated. Property values remain intact on this resident, as well as surrounding
residences. B. Staff Concurs Ms. Bouffardpresentation consisted of aerial maps and various photographs of the property. Mr. Cameron asked if an as-built survey
was required. Ms. Bouffard said an as-built survey is not a requirement. She also said when the inspectors goes out they are not aware of where the property line is located because an
inspection is not scheduled after the slab is poured. Mr. DeVita asked if the roof or house is the encroachment. Ms. Bouffard said it is the house that encroaches.
4 Mr. Cameron called those to speak in favor of granting the variance request to come forward to be sworn in for testimony. The Chairman swore in Mr. Nathan Henry Gay and Ms. Deirdre
Hartnett Shaw. Ms. Shaw stated that she is the owner of Bradley Point, LLC and Mr. Gay will speak on her behalf. Mr. Gay stated the property has been sold twice without anyone detecting
the encroachment. He said the overall encroachment amounts to 3.97 square feet inside the 15 foot setback, which affects .05 percent of the setback area. Mr. Gay said there is also an
existing vegetative buffer along the property line. Mr. Cameron asked if it is 1.73 ft or inches. Mr. Gay said it is 1.73 inches. Mr. Cameron asked if it would be substantial cost to
move or cut off a portion of the garage. He also asked if there were any plans to remove the vegetative buffer. Mr. Gay said yes it would be costly to have to move or cut off some of
the garage. He said they have no plans to remove the vegetative buffer. Mr. DeVita asked if Bradley Creek would consider selling them 4 sq ft and Mr. Gay said no. Mr. McCulley asked
if this has interfered with their ability to sell. Mr. Gay said they have not been able to sell because of the encroachment and if they get the variance they would be able to sell but
without the variance they could not sell. Mr. Cameron asked if granting the variance request would affect the Floodplain rating. Mr. Still said this would not increase
the Countyflood rating. Mr. Cameron called for those to speak in opposition to granting the variance request to come forward to be sworn in for testimony. There
was no one present to speak in opposition to granting the variance request. PUBLIC HEARING CLOSED Board Discussion Mr. Cameron said they have shown the hardship. He said it is in
harmony with the neighborhood and has a good buffer. Ms. Winstead said they could not make a reasonable return because there is no way to divide the property without an issue. Mr. Miller
said an agent would have to disclose the encroachment so they could not sell. Mr. DeVita and Mr. McCulley both agreed that the hardship was shown and they could not make a reasonable
return without the variance.
5 BOARD DECISION 1. Bradley Point LLC, 2 Backfin Point, is requesting a variance from the side setback requirements of New Hanover County Zoning Ordinance Section 51-2 (4), for an existing
structure that encroaches 1.73 feet into the 15 feet required setback. Property is zoned R-20S. Case No. ZBA-860 2. On a motion by Mr. McCulley and seconded by Mr. DeVita the Board voted
unanimously to GRANT the variance request based on evidence presented. There being no further business before the Board, it was properly moved by Mr. DeVita and seconded by Ms. Winstead
to adjourn the meeting. 6:50 P.M. Acting Executive Secretary Chairman