Minutes Sept 2015MINUTES
ZONING BOARD OF ADJUSTM ENT
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, September 22, 2015.
Members Present
Justin Lewis, Choirmon
Brian Prevatte
Pete DeVita
Andrew Barnhill
Chad McEwen
Members Absent
Joe Miller, Vice-Choirmon
Hank Adams
Colin Tarrant
Ex Officio Members Present
Ben And rea, Executive Secretary
Sharon Huffman, County Attorney
Denise Brown, Clerk
Mr. Lewis 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 the County's interpretation in
enforcement of the Zoning Ordinance. The appellants have thirty days in which to appeal any decision made by
the Board to Superior Court.
Mr. Andrea states applicant Mr. Reed Thompson of Parker Trace and Associates applied for a building permit for
a new construction home at 602 Arjean Drive on December 19, 2OL4.lncluded in the application materials wasthe site plan attached as Exhibit A, prepared by the firm Stroud Engineering, p.A., which did not depict stairs onthe front of the home, designed to serve a second-story entrance. zoning Staff signed off on the site plan duringthe plan review process as the structure was depicted as compliant with the county's zoning regulations, and thedevelopment of the home commenced. Mr. Andrea states the rear of the property has a lom-banation of AE as
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STAFF OVERVIEW:
The meeting wos colled to order ot 5:30P.M. by the Chairmon, Mr. Justin Lewis.
FIRST ORDER OF BUSINESS
1. Officiol Approvol of July 23,2075 minutes by. Vote wos unonimous.
The Chairman then swore in County Staff Mr. Ben Andrea.
FIRST CASE BEFORE THE BOARD WAS AS FOLLOWS:
Parker Trace & Associates, applicant, on behalf of William and Amanda Mountford, property owners, are
requesting a 15'variance from the 30'front yard setback required per Zoning Ordinance Section 51.5: R-20. The
property is located at 602 Arjean Drive and zoned R-20 Residential District. case zBA-997.
During the week of August 3, 2015, Mr. Reed contacted the Zoning Staff to verify that the stairs could be
constructed to meet zoning compliance. At that time, Zoning staff informed Mr. Reed that the stairs are
considered part of the structure and must conform to the yard requirements, which is 30'for the front yard in
the R-20 Residential Zoning District. This interpretation is based on the definitions for the "yard" and "structure"
per the Zoning Ordinance, as well as the requirements in Section 51.5-2 for conventional residential
development:
Ydrd - A required open spoce unoccupied ond unobstructed by o structure or portion of o structure provided,
however, thot fences, walls, poles, posts, ond other customory yord occessories, ornoments ond furniture moy be
permitted in any yord subject to height limitotions ond requirements limiting obstruction of visibility. (1/5/81)
Privote drivewoys or eosements serving three or fewer lots pursuont to Section 65 moy olso be permitted in ony
yord. (3/8/93) HVAC units elevoted to comply with food ploin requlotions moy be permitted in ony side yord
provided the supporting structure is ot leost (5) feet from the odjoining property line. (8/18/0i) (2i-42)
5 1. 5-2 : Conve nti on a I Re side ntid I R eg u I ations
Minimum lot oreo 20,000 sq. ft. Duplex j5,000 sq. ft
Minimum lot width 90 feet
Minimum front yord 30 feet
Minimum side yord 15 feet
Minimum reor yord 25 feet
Moximum Height 35 feet
The above definition of structure was amended in 2012 to include the second sentence " The terms building
and/or structure shall be construed to include porches, decks, carports, garages, sheds, rool extensions,
overhangs extending more than 2', and any other projections directly attached to the structure and or/building.,,
Although not specifically included in the definition language, zoning staff consistently includes stairs asprojections that are included in the definition and therefore must adhere to the yard requirements.
zoning staff articulated the above interpretation to Mr. Reed Thompson and Mr. Jimmy Fentress of Stroud
Engineering during a meeting and also a follow up email was relayed on August 12,2015. On August 17,2015,Mr. Fentress responded via email to request consideration that the stairs not be included as part of thestructure. zoning staff further discussed the matter with Planning Manager Ken vafier and planning and
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well as X flood zoning. Due to flood risk areas the home is located in the northeast portion of the property due
to its'elevated ground. Mr. Andrea states the porch construction is even with the required 30ft. front yard
setback. Mr. Andrea states the variance request is for stairs that would intrude up to 15ft. from the front porch
to serve as an second story entry way. Mr. Andrea states stairs are considered part of the structure therefore
they must meet setback requirements. Mr. Andrea states there is a 15ft utility easement that runs ad.iacent to
the applicant's front yard. Mr. Andrea states the steps are close to the easement however, the home
construction is not. Mr. Andrea states there has been discussion with the applicant on possible redesign of
second story stairs however, Mr. Thompson states the property owners request were to build the stairs as
depicted on the proposed site plan.
Structure ond/or Building - Anything constructed or erected within o fixed locotion on the ground, or ottoched
to something having d fixed locdtion on the ground. The terms building ond/or structure shdll be constructed to
include porches, decks, corports, goroges, sheds, roof extensions, overhongs extending more thon 2', and ony
other projections directly ottoched to the structure ond/or building. (12/17/2012)
Dimensional Requirements:
lnspections Director Chris O'Keefe. The Planning & lnspections management staff concluded, and reaching the
same conclusion, responded to Mr. Fentress via email on August 20,2015 with the interpretation and advising
of a right to appeal or apply for a variance to the front yard setback requirement.
The Chairman then swore in Mr. Reed Thompson Parker Trace Associates
Mt. Reed Thompson states the initial plot plan submitted omitted the stairs which was an oversight of the
surveyor. Mr. Thompson stated due to the non-specifics of the stairs they were to assume it was an allowed
encroachment. Mr. Thompson states the deck on the front porch does not allowed stairs to be constructed for
proper access to the second story without some an encroachment in other areas of the property. Mr. Thompson
states there are stairs on the back of the property. Mr. Thompson states the 15ft variance request is great
needed to adhere to the obstetrics of the home. Mr. Thompson states the home would not impact the
community access due to the home is located further back on the lot. Mr. Thompson states he is limited as to
construction in some areas due to the duo flood zones, COD and the septic system in the rear. Mr. Thompson
omitting the stairs is a common practice, he further states in Southport he's allowed to construct steps into the
setbacks but in Ocean lsle it's not allowed. Mr. Thompson states due to the local the requirements of steps
varies. Mr. Thompson states there is an HOA and he believes Arjean Drive is private however, he's not sure.
BOARD DISCUSSION:
Mr. McEwen inquired as to what changed about the site plan to initiate a variance request. Mr. McEwen
inquired on designs of other homes in the community and there similarities of designs to the applicants home.
Mr. McEwen inquired of the HOA and their bylaws in home designs in this community. Mr. McEwen inquired on
opposition to the various request, Mr. Devita inquired as to the builder on other design options to access the
second story without obtaining a variance. Mr. Devita suggested possible expansion of side steps to access the
second story. Mr. Devita states the builder or homeowner should make contact with the HOA for the property.
Mr. Lewis states should the variance be granted the HOA could enforce their bylaws independently. Mr. Lewis
states it would be practical if a stipulation to implementing stairs involving home construction were addressed in
the county's zoning ordinance for further reference. Mr. Devita states it is unfortunate the builder wasn't
familiar with the adherence of stairs involving construction in New Hanover County.
The Zoning Board of Adjustment for New Hanover County, having heard all the evidence and arguments
presented at the hearing, makes the following FINDINGS OF FACT and draws the followin8 CONCIUSIONS:
1. lt is the Boards' conclusion that, if the applicant complies with the literal terms of the ordinance,
specifically the 30'front yard setback required per Zoning Ordinance Section 51.5: R-20 ResidentialDistrict that an unnecessary hardship would result. (tt sholl not be necessory to demonstrute that, in
the dbsence of the varionce, no reasonable use can be mode ol the property.):ihis conclusion is basedon the following FINDINGS OF FACT:
A hardship would resurt from requiring steps to conform to the 30, setback requirement due tothe location of the home resurting from unique constraints of the rot incruding frood zone andwetrand areas on the rear of the rot which dictated the rocation of the septic system and repair
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Mr. Andrea presented visual imagery of the home construction; adjacent aerial of front and side angles. No
photos of the rear of the home were presented.
There was no one present to speak in opposition to granting the variance request.
PUBLIC HEARING CTOSED
area. Significant changes would need to be made to the design of the home to accommodate
entry stairs that could conform to the 30'setback requirement.
2. lt is the Board's conclusion that the hardship of which the applicant complains results from unique
circumstances related to the subject property, such as location site, or topography. (Hardships
resulting lrom personal circumstdnces, as well os hardships resulting from conditions thdt dre
common to the neighborhood ot the genetol public, may not be the bosis for gronting o varionce,)fhis
conclusion is based on the following FINDINGS OF FACT:
The subject lot contains wetlands and flood zone areas that required situating the structure
closer to the front property line to accommodate the septic system and repair area, as well as to
lessen risk by moving the structure away from flood hazard areas.
3. lt is the Board's conclusion that the hardship did not result from actions taken by the applicant or the
property owner. (The act of purchasin8 property with knowledge that circumstances exist that may
justify the granting of a variance shall not be regarded as a self-created hardship.) This conclusion is
based on the following FINDINGS OF FACT:
4. lt is the Board's conclusion that, if granted, the variance will be consistent with the spirit, purpose,
and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. This
conclusion is based on the following FINDINGS OF FACT:
The home with the proposed stairs would be consistent with the design and setbacks of other
homes in the community.
The because the main portion ofthe structure conforms to the required 30' yard requirement, the granting
the variance would be in harmony with the spirit and intent of the yard requirements for the R-20 zoning
district.
BOARD DECISION:
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The applicable ordinance language does not clearly specify that stairs are considered part of the
structure and must conform to the yard and setback requirements.
Because the ordinance language is not clear, the proposed stairs were omitted from the site
plan that was approved by zoning staff, and the structure was then constructed with the
understanding that the stairs were not considered part of the structure when determining yard
and setback requirements.
1' Parker Trace & Associates, applicant, on behalf of William and Amanda Mountford Blue Ridge
Engineering, PLLC, petitioner, is requesting a 0.2 space per unit variance from the 2 parking spaces
required per residential unit under Zoning Ordinance Section 81: Minimum porkinq Requirements.
The property is located at 602 Arjean Drive and zoning R-20, Residential District. case zBA-g97
2. on a motion by Mr. Pete Devita and seconded by Mr. Chad McEwen the board voted unanimouslyto GRANT the variance based on case details and Board findings as discussed.
SECOND CASE BEFORE THE BOARD WAS A5 FOLLOWS:
STAFF OVERVIEW
Mr. Andrea states the Marshburns purchased the property the home at 245 Bayshore Drive in March 2012,
which included an existing, permitted 924 ft. detached garage in the northern corner of the property, situated
approximately 10'from the side property line and 40'from the rear property line, adhering to the yard
requirements in the R-15 zoning district. Per Section 63.2-1 of the Zoning Ordinance, accessory buildings 600 sq.
ft. or larger must adhere to the yard requirements of the zoning district of the property. Mr. Andrea states the
detached garage is a conforming use. The existing garage is 40 ft. from the rear property line with an additional
20 ft. is available for construction in the rear. The length of the proposed garage was not specified on the site
plan however based on the map it should be 25 ft. as drawn which would require a variance of 6ft. After further
discussion of these findings Mr. Marshburn elected to seek a variance of 10 ft. to allow flexibility of his design.
Mr. Andrea stated there has not been a survey performed for either the building permit or variance request.
The property is bordered by residential uses to the rear that front along windsong Road, including 324 and 328
Windsong Road. The home at 324 Windsong Drive is approximately 110'from the shared boundary line, and the
home at 328 Windsong Drive is approximately 105'from the shared boundary line.
Mr. Andrea presented visual aerial display of the applicants' property from various angles; in addition a visual of
the site plan presented for the proposed garage addition.
REQUIREMENTS:
53,2-7: No occessory building shall be erected in ony required yord nor within five (5) feet of ony other building
except that occessory buildings not exceeding 600 sq. ft. p/a/Sa) moy be permitted in the required side ond reor
yords provided such occessory buildings ore ot leost five (5) feet from ony property line ond do not encrooch into
any require eosements. Accessory building not exceeding 50 squore t'eet ond use exclusively to house well and
pump equipment moy be permitted in the required Iront, side and reor yords, provided such occessory buildings
ore ot leost live (5) feet from any property line ond do not encrooch into ony required eosements or sight ongles.
(1/4/88) An occessory building or use mdy be locoted on another contiguous or noncontiguous tot from the
principle use with which it is ossocioted, only to the ertent thot the principle use itself would also be permitted on
such lot. (9/12/83).
Ydrd - A required open spoce unoccupied dnd unobstructed by o structure or portion of o structure provided,
however, thot fences, wolls, poles, post, ond other customory yord occessories, ornoments ond furniture moy bepermitted in ony yord subiect to height limitotion ond requirements limiting obstruction of visibitity. (1/5/81)
Privdte drivewoys or eosements serving three or fewer lots pursudnt to Section 65 moy olso be permitted in onyyord. (3/8/93) HVAC units elevated to comply with flood ploin regulotions moy be permitted in ony side yardprovided the supporting structure is ot least (5) feet lrom the adjoining property line. (s/18/03) (23-42)
structure ond/or Building - Anything constructed or erected within o fixed locotion on the ground, or ottoched tosomething hoving o fixed locotion on the ground. The terms building ond/or structure sholi be construed toinclude porches, decks, corports, garoges, sheds, roof extensions, overhongs extending more thon 2,, ond anyother projections directly ottoched to the structure ond/or building. (12/17/2012)
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J.R. Marshburn, applicant, on behalf of Connie Jean Marshburn, property owner, is requesting a 10' variance
from the 20' rear yard setback required per Zoning Ordinance Section 51.6: R-15 Residential District. The
property is located at 245 Bayshore Drive. ZBA-898.
5 7. 5-2 : Co nv e ntiono I Res i d ent ia I Req uldtio ns
D i me ns io n o I Req u i re m e nts
1) Minimum lot ored 20,000 sq. It. Duplex 35,000 sq. ft
2) Minimum lot width 90 feet
3) Minimum front yard 30 feet
4) Minimum side yord 15 Ieet
5) Minimum reor yord 25 feet
6) Moximum Height 35 feet
There was no one present to speak in opposition to the variance request.
Public Hearing Closed.
BOARD DISCUSSION:
Mr. Devita inquired of other designs the applicant could construct to adhere within the zoning ordinance, and
particularly if a second garage could be permitted and what the setbacks could be.
Mr. Andrea explained that a second garage could be permitted on the property to the rear of the existing
garage, and so long as it was less than 600 square feet, it could be up to 5'from the existing building and 5'from
the side and rear property lines.
Hearing the option for a second detached garage instead of a garage addition, the petitioner was amenable to
the option rather than seeking the variance for the addition to the existing garage that would encroach into the
required setback.
After further discussion with the board members, the applicant, Mr. Marshburn elected to withdraw his request
for a variance.
THIRO CASE BEFORE THE BOARD WAS AS FOLIOWS:
Timothy and carol wright, applicants and property owners, are requesting a 0.4' l4.g"l variance from the 15,
side yard setback required per Zoning Ordinance Section 51.4: R-20S Residential District to achieve a legal non-
conforming status for their home at 7 Clamdigger Point Road. Once corner of an existing wooden two story deck
encroaches approximately 0.3' into the required L5' side yard, and the variance request of 0.4' is to allow for a
margin for measurement error of 0.1 feet (1.2 inches).
Mr. Andrea states the Wrights purchased the property and home in June 2004, which included the existingresidential structure built in 1996 that included a two story deck and support pilings on the southern side of thestructure. ln 2008, a survey was performed prior to any changes being made to the home and shoed the setbackfrom the side property line shared with 8 clamdigger Road to the closest corner of the wooden tow story deckand support piling as 14.9'. Mr. Andrea states an additional survey was performed in August 2015 that showedthe setbacks to be 14.7', and the 0.2' difference is believed to be the result of the two different surveyors,measurements. Mr. Andrea stated the zoning ordinance outlines a definition for structures and/or builjingsincluding attached components such as porches and decks:
structure and/or Building - Anything constructed or erected within o fixed locotion on the ground, or dttochedto something hoving o lixed location on the ground. The terms building ond/or structure slholl be construed to
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51.4-2: D i m e n si ondl Re qu ire m ents:
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3)
4)
s)
6)
Minimum Lot ored 20, 000 Square Feet
Minimum Lot width 90 Ieet
Minimum Front Yord 30 feet
Minimum Side Yord 75 feet
Minimum Reor Yord 25 feet
Moximum Height 35 feet
Any development on the subject property would be subject to the regulations set forth in the NC Coastal Area
Management Act, specifically the need for a CAMA Minor Permit for development within the Estuarine
Shoreline Area of Environment Concern, which includes all area of the parcel landward 75' from the normal high
water line.
The Zoning Board of Adjustment for New Hanover County, having heard all the evidence and arguments
presented at the hearinB, makes the followinB FINDINGS OF FACT and draws the following CONCLUSIONS:
1. lt is the Eoard's conclusion that, if the applicant complies with the literal terms of the ordinance,
specifically the 15' side yard setback required per Zoning Ordinance Section 51,4: R-2OS Residential
District that an unnecessary hardship would result, (lt shall not be necessary to demonstrate that, in
the absence of the variance, no reasonable use can be made of the property.) This conclusion is based
on the following FINDINGS OF FACT:
The corner of the applicant's deck encroaching on the side setback includes the piling support
the deck. Removal of the encroachment into the side setback would require the removal of the
two story deck to remove the piling and clear room for pile driving, driving a new pile, and
reconstruction of the deck. Removal and/or driving a new piling most likely additionally will
require the expense of obtaining a CAMA permit for land-disturbing activity.
The only alternative to demolition and reconstruction to eliminate the 0.3'(3.6,,) encroachment
of the deck piling into the side setback, without a variance, would be to adjust the location ofthe property line, for which the subdivision ordinance would require the recording of a
recombination map, which would have the effect of destroying the grandfathering under CAMAof both the subject lot and the adjacent lot which shares the common boundary line from which
the side setback is measured, potentially rendering both lots unbuildable or unable to support abuilding that would otherwise be permitted, which would have the result that the applicantcannot secure a reasonable return from his property.
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include porches, decks, carports, gordges, sheds, roof ertensions, overhangs extending more thon 2', ond ony
other projections directly ottoched to the structure ond/or building. (12/17/2012)
Ydrd - A required open space unoccupied ond unobstructed by o structure or portion of d structure provided,
however, thot fences, woll, poles, post, ond other customory yord occessories, ornoments ond furniture moy be
permitted in ony yord subject to height limitdtions dnd requirements limiting obstruction of visibility. (1/5/81)
Privote drivewoys or eosements serving three or fewer lots pursuont to Section 65 moy olso be permitted in ony
yord. (3/8/93) HVAC units elevoted to comply with flood ploin regulotions moy be permitted in ony side yord
provided the supporting structure is ot leost (5) feet from the odjoining property line. (8/18/0j) (B/a2)fhe
required side yord within the R-205 residentiol zoning district is 75' per Section 51-4-4 of the zoning Ordinance:
2. lt is the Boards' conclusion that the hardship of which the applicant complains results from unique
circumstances related to the subiect property, such as location, size or topography. (Hardships
resultin8 from personal circumstances, as well as hardships resulting from conditions that are
common to the neighborhood or the general public, may not be the basis for Branting a variance.) This
conclusion is based on the following FINDINGS OF FACT:
The location of the property makes the alternative solution of relocation of the boundary line by
recordation of a recombination plat impractical and impossible even were the applicant to
accept the consequence of loss of grandfathering.
Due to the location of the property and being an environment concern, the property is located
at the marsh front, within an Area of Environmental Concern, any land-disturbing activity on the
property would require a CAMA permit and is subject to regulation by the Department of
Environment and Natural Resources (DENR)/North Carolina Division of Coastal Management.
Any removal and replacement of the piling behind the setback allowances may require the
expense and delay of obtaining and complying with a CAMA permit for such, and even with all
reasonable required precautions, thereby the lot being in an unique location.
The encroaching structure on the property was in place when the applicant purchased the lot as
depicted on the site survey performed in 2008.
New Hanover County Tax records indicate initial construction occurred in 1986, and the two-
story deck and piling appear to be part of the original construction.
The property has changed owners; the hardship is not the result of the applicant.
4. lt is the Boards' conclusion that, if granted, the variance will be consistent with the spirit, purpose,
and intent of the ordinance, such that public safety is secured, and substantial iustice is achieved. This
conclusion is based on the following FINDINGS OF FACT:
The requested variance, which accommodates a de minimus encroachment of 0.3 feet (3.6
inches) on the Ordinance's side setback allowance, is in harmony with, preserves the spirit of,
and in no way contravenes the purpose or intent of R-205 Residential District Zoning.
The encroachment has existed prior to 2004, when the applicant acquired the property, and is
believed to be part of the original construction of j.986, and has not adversely affected public
safety or the intent of the county's ordinance.
The minimal encroachment caused by the inadvertent erroneous placement of one corner ofthe piling and decking is "compatible with the preservation of (the R-2os District,s) rural
character and providinB limited growth"
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3. lt is the Board's conclusion that the hardship did not result from actions taken by the applicant or the
property owner. (The act of purchasing the property with knowled8e that circumstances exist may
justify the granting of a variance shall not be regarded as a self-created hardship.) This conclusion is
based on the following FINDINGS OF FACT:
BOARO DECISION:
1. Timothy and Carol Wright, applicants and property owners, are requesting a 0.4'(4.8) variance from the
15' side yard setback required per Zoning Ordinance Section 51.4: R-20S Residential District. The
property is located at 7 Clamdigger Point Road and zoned R-20S, Residential District. Case No. ZBA-899.
2. On a motion by Mr. Devita and seconded by Mr. Barnhill the board voted unanimously to GRANT the
variance based on the findings fact presented by the applicants.
MEETING ADJOURNED.
Executive retary Chairman
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