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ZBA Agenda Package 2.26.2019 February 26, 2019, 5:30 PM I. Call Meeting to Order (Chairman Raymond Bray) II. Official Approval of November and December Minutes (currently in draft status) December Member Attendees: Ray Bray, Hank Adams, Joe Miller, Mark Nabell, Cameron Moore III. Regular Items of Business 1. Case ZBA-932 – Paul and Sandra Seiferth are appealing a determination made by New Hanover County Planning & Land Use staff pertaining to property owned by the petitioners located at 815 Seven Oaks Drive. (This item was continued from the January 22, 2019 meeting). 2. Case ZBA-934 – Paul and Sandra Seiferth are requesting a variance from the 75’ conservation space setback required per New Hanover County Zoning Ordinance Section 55.1-5, Additional Performance Controls. The property is located at 815 Seven Oaks Drive. (This item was continued from the January 22, 2019 meeting). 3. Case ZBA-933 – Myron Smith, Jr. and Thomas Oliver are appealing a determination made by New Hanover County Planning & Land Use staff pertaining to property owned by Thomas Oliver et. al. located at 4245 Buck Drive. (This item was continued from the January 22, 2019 meeting). 4. Case ZBA-935 – Bill Clark Homes of Wilmington, LLC, is requesting a variance from withholding of permits per New Hanover County Zoning Ordinance Section 62.2-3, Penalty – Withholding of Permits. The properties are located at 1014 Piner Road and 1301 Myrtle Gardens Drive. 5. Case ZBA-936 – Cameron Management, on behalf of Dry Pond Partners, LLC, is requesting a variance of 5’ from the 40’ maximum height requirement for a high-density development per New Hanover County Zoning Ordinance Section 72-43(11). The property is located at 4429 S College Road. 1 MINUTES ZONING BOARD OF ADJUSTMENT November 14, 2018 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, November 14, 2018. Members Present Members Absent Raymond Bray, Chairman Kristen Freeman Hank Adams, Vice-Chairman Brett Keeler Mark Nabell Richard Kern Joe Miller Cameron Moore Ex Officio Members Present Ben Andrea, Executive Secretary Sharon Huffman, County Attorney Linda Painter, Zoning Official The meeting was called to order at 5:30 P.M. By the Chairman, Mr. Raymond Bray. Mr. Bray 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. APPROVAL OF August 28, 2018 MEETING MINUTES Following a motion by Mr. Miller and seconded by Mr. Nabell the minutes of the August 28, 2018 were unanimously approved. Mr. Andrea introduced staff member Ms. Linda Painter, New Hanover County Zoning Official. Ms. Painter will present today’s staff summary. Chairman Bray then swore in County staff, Mr. Ben Andrea and Ms. Linda Painter. CASE ZBA-929 Ms. Painter stated Bohler Engineering, NC PLLC, applicant on behalf of O’Reilly Automotive Stores Inc., property owner, is requesting variances from the setbacks for side and the rear requirements per Section 60.3 and the buffers requirements per Section 62.1-4 of the New Hanover County Zoning Ordinance. The property is zoned B-1, Neighborhood Business District and is located at 2608 Castle Hayne Road, Wilmington, NC. Ms. Painter stated the applicant is requesting to reduce the right side setback to 15ft. This reduction request will require a 37.25 ft. variance. Mr. Painter stated there is no setback requirement for the left side of the property line as it is in alignment of an adjacent B2 zoning land classification. Ms. Painter stated the applicant is requesting to reduce the buffer areas from the rear to 20ft. 2 Ms. Painter stated the minimal requirement to the buffer will require a variance of 15.43 ft. Ms. Painter stated the applicant has requested allowance to the side of the subject site building to 7.5ft. which would require an 18.62 variance. Ms. Painter stated the applicant requested the dumpster be placed 5ft from the property line which would require a 15ft variance with a reduced buffer of 2.5ft. Ms. Painter stated the reduced buffer of 2.5ft would require a variance of 17.5 due to the minimum buffer distance being 20 ft. Ms. Painter stated the subject site is located at 2608 Castle Hayne Road located in the Wrightsboro community just north of the intersection of Castle Hayne Road and North Kerr Ave. Ms. Painter stated the subject site includes 0.87 acres, with B-1 zoning land classification. Ms. Painter stated most of the site is undeveloped except for an old house that is no longer occupied. Ms. Painter stated the parcels to the north and south of the subject site are zoned B-1 Conditional Zoning District. Ms. Painter stated there are shopping center properties zoned B-2 located diagonal across the street from the subject site. Ms. Painter stated two of the nearby B-1 zoning classifications are housed with residences which requires adherence to the county’s buffer and setback requirements. Ms. Painter stated to the rear of the subject site is zoned AR; Airport Residential. Ms. Painter stated the subject site has a unique L-Shape residential structure on the site; due to the unique L-Shape structure it has created a 5th property line at the site. Ms. Painted stated this site would require adherence to zoning setback requirements. Ms. Painter stated setbacks for residential structures that are adjacent to a business district are based on the height of the building and factored from Section 60.3 of the Zoning Ordinance. Ms. Painter stated height requirements in B-1 and B-2; are defined in the New Hanover County Zoning Ordinance Section 60.3. Ms. Painter stated the applicant is proposing a structure of 19 ft. in height which requires the rear setback of 70 ft. with the side setback of 52 ft. Ms. Painter stated the northern property at the site does not require setback regulations due to the B-1 land classification and the site is operating as a business. Ms. Painter stated a dumpster does not require setback regulation as it is not considered a structure, however the dumpster should not be located within the buffer area. Ms. Painter stated there are buffer requirements to screen the non-residential uses from the residential uses. Ms. Painter stated the buffer strips need to provide approximately 100% opacity. 4 Mr. Miller inquired if the elimination of the additional proposed parking spaces down to the minimum ordinance requirement allow this site to be in compliance. Mr. Miller inquired if the site be out of compliance without additional parking spaces. Ms. Painter stated additional parking spaces would not affect the L-Shape subject site nor side setback. Ms. Painter stated with additional parking spaces it would realign the dumpster placement at the subject site which would increase the rear 2.5ft buffer. Ms. Painter stated the 2.5ft buffer is not sufficient enough space to plant 3 rows of vegetation or a fence or 2rows of vegetation. Ms. Painter stated the smallest plant on the plant list has a spread of 5ft which would encroach into the buffer area. Chairman Bray inquired of the subject site acreage. Ms. Painter stated the subject site acreage is .87 acres. Chairman Bray inquired would the subject site require a retention pond. Ms. Painter stated the subject site is required to maintain a retention pond due to parking and the size of the proposed building. Chairman Bray inquired of the 1acre land permit requirement. Ms. Painter stated a land disturbance permit requires a total of 1 acreage minimum. Ms. Painter stated storm water is based on impervious surface. Chairman Bray inquired of the applicant is request of impervious requirements. Ms. Painter stated the site plans display seven thousand square foot building that would require a totality of impervious surface with the excess parking. Ms. Painter stated a retention pond or some sort of collection system would be required at the site. Mr. Moore asked if the applicant is requesting three variances in total. Mr. Andrea stated the applicant is requesting three variances: 1. A reduction in the required building setback 2. A reduction in the required buffer width 3. A potential variance to allow the dumpster to set within 20ft from the property line. Mr. Andrea stated typically the dumpster would need to be placed outside of the buffer area. Mr. Andrea stated the minimal buffer width would be 20ft. Mr. Moore asked the board are they to consider all requested variance at one time; or one at a time individually. 5 Mr. Moore stated the applicant is presenting one application with a request of three variances. Ms. Sharon Huffman, County Attorney- Ms. Huffman stated it is the board discretion how they would determine decision based on what the applicant is requesting and what is best practice to proceed in case hearing. Ms. Huffman suggested that the board consider each variance as presented one at a time. Ms. Huffman stated multiple variances presented at one time can get confused which is why she requested Ms. Painter present testimony of the variances requested a second time for clarity. Ms. Huffman stated she is finding the applicant’s request difficult to understand. Ms. Huffman stated that Ms. Painter present the applicant’s request again slowly or have the applicant present their request. Ms. Huffman reiterated the variances requested should be considered one at a time with clear clarity to make a sound decision based on the request. Chairman Bray inquired of a new plan by the applicant to be presented that was not submitted initially in the packet. Chairman Bray stated to move forward the meeting forward with the applicant’s testimony. Chairman Bray then swore in Mr. Wyatt Bone. Mr. Wyatt Bone; Civil Engineering, -(Bohler Engineering, 4130 Park Lake Ave; Raleigh, NC) Mr. Bone stated he is the civil engineer for the O’Reilly’s project. Mr. Bone presented an adjusted site plan that differs from the submitted plan in the application packet that should address some of the Planning staff concerns. Mr. Bone stated the dumpster enclosure was shifted slightly from the buffer however, Mr. Bone stated they can shift the dumpster more to remove it completely out of the 20ft buffer area. Mr. Bone stated they are requesting to remove the buffer variance from this case hearing. Mr. Bone stated the reduction in landscape buffers were initially submitted as an ideally proposed setback however now they are proposing half of the setback line based on the zoning code. Mr. Bone referred to the visual aerials presented by Ms. Painter. Mr. Bone stated the blue lines represent the current setback line regulation. Mr. Bone stated they are requesting what are the proposed dimensions per the aerials that represented the green the lines. Mr. Bone stated they are no issues in meeting the rear setbacks on the subject site. Mr. Bone stated with the dimensions of the request on the blue and green lines they coincide to meet the 70sf requirement that is required per the ordinance. Mr. Bone stated combining the side setback of 52sf it’s encroaches on to the building setback. Chairman Bray inquired as to the distance from the corner of the line to the building setback; and the further corner. Mr. Bone stated the distance from the corner line to the building setback is 18.5ft. Mr. Bone stated the further corner from the building dimensions are 5ft. Chairman Bray inquired about the southeast corner from the rear setback line dimensions to the auto part store. 6 Mr. Bone estimates the dimensions at 30ft. Chairman Bray inquired about the north side corner dimensions to the auto part store. Mr. Bone stated the dimensions are about 35ft. Mr. Bone stated the 52ft dimensions are from the side setback. Mr. Bone stated that Ms. Painter informed them they did not have adequate width for buffering at the subject site. They have added double row plantings and fence with a 10ft swap that would meet buffering requirements per county code. Mr. Bone stated they may be required to adhere to other buffering on the site; these areas have not been identified as of yet. They will be identified if any during the zoning review process. Mr. Bone stated the proposal is different than the original plans received in the application packet. Chairman Bray inquired of a subject site berm. Mr. Bone stated the area is not on a berm. Mr. Bone stated they propose 2 rows of plantings at 3ft tall with 6ft fencing. Mr. Miller inquired if the buffer variance be eliminated as a request. Mr. Andrea asked the applicant of what buffer width are they displaying; is it the 20ft for consideration. Mr. Bone stated it is the 10ft buffer proposal. Mr. Andrea stated the buffer that would be required is supposed to be half of the required building setback. The required setback is 52.25ft. The buffer that would be required is half of the 52.25ft. Mr. Andrea stated the variance would be half of the 52.25ft and 10ft. Mr. Andrea stated the dimensions calculate to a 16ft variance. Mr. Miller stated the applicant is out of compliance by 16ft. Mr. Bone stated they could provide additional width however, with the proposed retention pond they want to maintain access for future upkeep of the access way and pond maintenance. Mr. Bone stated they do not foresee the north side as a viable access. Mr. Bone stated he believes they have met code regulation of two rows of plantings with fencing. Mr. Bone stated they are unsure if they need the 20ft landscape reduction as it relates to the retention pond. Mr. Bone stated they wanted to request additional spacing should they require it once construction proceeds at the site. Mr. Bone stated the pond may require shifting or additional spacing which is why they felt the need to require the landscape reduction variance request. Chairman Bray inquired as to the size requirement for the pond at the subject site. Mr. Bone stated currently there is not a proposal or requirement for the pond. Mr. Bone estimates a retention pond would be small as possible to meet standards at the site. Chairman Bray stated the Dollar General at the northern side of the subject site does not have the proposed retention pond as the applicant displayed. Mr. Bone stated the Dollar General pond is estimated to be the length of their building. Chairman Bray inquired of a variance for the Dollar General retention pond. 7 Ms. Painter stated she is not aware of a variance for the Dollar General retention pond. Ms. Painter stated ponds are allowed to encroach in the buffer setbacks, however they must adhere to the plantings requirements. Ms. Painter stated the store was granted a rear setback variance. Mr. Miller asked the applicant to be more compliant than they propose. Mr. Bone stated they could apply more width to the rear of the site but the access to the pond would be impacted. Mr. Bone stated he met with the adjacent property owner, Mr. Inman, who has reviewed the proposed store plans and has no objection to the store proposal as presented by the applicant. Mr. Miller inquired if a finalized site plan would be of benefit prior to variance decision. Chairman Bray suggested more discussion be made on impervious and pervious surfaces as it relates to the retention pond. Chairman Bray inquired as to the applicant’s pavement material for the storm water management and or collection system. Mr. Bone stated they are intending to utilize a storm water pond for the subject site. Mr. Andrea added that the applicant is proposing a variance request and the board should consider that the applicant is meeting the four findings of fact. Ms. Huffman requested the applicant to go over the discussion of the proposed setback variance request as it relates to the retention pond for clarity in the variance request presented. Mr. Bone stated that per zoning ordinance code the landscape buffer at the rear of the site should be half of the building setback which would be 35.435ft. Mr. Bone stated they are requesting a variance that the buffer be reduced to 20ft to give additional spacing as construction may possibly yield some constraints. Mr. Bone stated that staff stated the retention pond is allowed to be within the buffer. Ms. Painter reiterated the retention pond is allowed within the buffer granted all plantings are provided on the site. Ms. Huffman stated the applicant has not presented the buffer and opacity demonstration but the applicant is aware these guidelines must be met for zoning compliance. Mr. Bone stated during the zoning review they will be subject to all code regulations. Mr. Andrea asked the applicant if they would be able to accommodate one of the buffer ordinance requirements within 20ft to the rear of subject site. Mr. Andrea stated the buffer could be the required 35.435 ft.; the storm water pond is allowed in this area. Mr. Andrea stated if the applicant can adhere to the 35.435ft proposed and meet the 20ft to the rear setback there may not be a need for a variance. Mr. Andrea stated with the dimensions referred the pond and additional spacing would be sufficient. 8 Mr. Miller inquired of the dumpster requirement variance. Mr. Andrea stated the applicant is requesting two variances. One variance is for the building setback which is 52.25ft. The applicant is requesting to reduce this setback by 18.50ft; which will result a 33.75ft variance for the building setback. Mr. Andrea stated the applicant is requesting the second variance to the required buffer width of 26.125ft. The applicant is proposing 10ft which would result in a 16.125ft variance. Mr. Miller stated the applicant present testimony that they can adhere to the required buffer width requirements with the 2 rows of plantings and the 6ft fence at the subject site. Mr. Moore inquired as to the front setback for the subject site. Ms. Painter responded that the front setback is 50ft. Mr. Moore inquired if the applicant has tried to reposition the proposed store at the subject site. Mr. Bone stated they have several types of store structures in which they have tried to place at various angles on the subject site. Mr. Bone stated the proposed building is the least impactful. Mr. Bone stated the structure proposed would result in a lesser request of a variance. Mr. Moore inquired if with the repositioning of the structure, did the applicant maintain parking in the front or rear? Mr. Bone stated they considered all options in repositioning the structure as well as parking location at the site. Mr. Moore inquired if the water infiltration proposal be placed under the parking lot to assist in rear water flow. Mr. Bone stated they have considered infiltration basin; it is subject to the seasonal high water table at the site. Mr. Bone stated no water table testing has been done presently. Chairman Bray stated the water table is high in the area of the subject site. Mr. Bone stated that at the adjacent retention pond near the subject site it appears to be shallow. Mr. Miller inquired to the size of the store structure being the smallest of consideration by the applicant. Mr. Bone stated the size of the store is their small version and the store would be a skinny structure; as the box style structure does not fit at the site. Ms. Huffman asked the applicant and Mr. Andrea to re-explain the building setback request. Mr. Andrea reiterated the corner spot of the lot that has a residence placed on it is increasing the required setback. Mr. Andrea stated the ordinance requires, based on a 19ft building height, that the building setback be 52.25ft. Ms. Huffman asked if the 52.25ft setback is for the corner piece of the lot. 9 Mr. Andrea reiterated that the corner spot of the lot has a 52.25ft setback due to the height of the building. Mr. Andrea stated if the O’Reilly structure was proposed to the west of the subject site, a variance would not be required due as the building would not come to the side of the corner lot proximity. Mr. Andrea stated the applicant is proposing an 18.50ft. Ms. Huffman asked if the distance from the subject corner lot and the adjacent neighbor Mr. Inman’s property is 18.50ft. Mr. Andrea stated the distance from subject corner lot and adjacent neighbor is 18.50ft. Ms. Huffman asked what is the width of the buffer. Also, Ms. Huffman asked where exactly would the buffer requirements be at on the subject site. Mr. Andrea stated the width of the buffer per the ordinance is half of the building height setback. Mr. Andrea stated there are some things due to the width of the buffer that cannot be placed there. However, the opacity must be meet in all planting regulations. Chairman Bray inquired as to the service area accessibility and who would maintain the rear end of the subject site. Chairman Bray asked with a 10ft wide buffer to the rear of the lot, what are the dimension of the accessibility point be. Mr. Andrea stated the applicant is proposing 8.5ft wide buffer to get around the proposed structure. Chairman Bray inquired as to the proposed an 8.5ft dimensions being feasible for emergency access. Mr. Bone stated there are no doors or access areas at the rear of the building for fire access. Chairman Bray stated the proposed rear buffer width of 8.5ft is not enough spacing in the event of emergency. Mr. Moore propose to eliminate the two requested variances and to consider a front yard setback to relocate the structure. Mr. Moore stated the site is zoned B1 which is not compatible with the applicants request of development at the site. Mr. Moore stated with the 50ft setback; he suggests an alternative to the applicant to relocate the proposed structure up front away from the corner to the accommodate setback regulations with adequate access to the retention pond and future emergency services. Mr. Moore stated if the building is relocated within 20ft, it could give the room needed for the corner area. Mr. Moore stated proposed parking is allowed per staff in the buffer area of the proposed 25 parking spaces; 2 are ADA spaces. Chairman Bray inquired of the ADA access at the proposed store. Me. Bone answered the ADA access is in the front entry. Mr. Bone stated there are challenges presented in altering the proposed plan as it relates to parking in the front. 10 Mr. Bone stated the street trees that are required would be limited in the building footprint area. Chairman Bray inquired as to the buffer width of the street trees. Ms. Painter stated buffer areas vary. Mr. Moore made another suggestion to the applicate in altering the building to the front to accommodate a request for a side yard setback. Mr. Bone stated the building’s orientation is not set in terms of what is deemed the front area. Mr. Miller stated the applicant is responsible for presenting requested dimensions for the variance. Mr. Miller stated the board is tasked in considering granting or denying the variance presented. Mr. Miller stated should the variance be denied; it is up to the applicant to return for approval with revisions they made to the site plan. Ms. Huffman responded that the board is not tasked in presenting setting suggestive matters in altering the applicant’s request. However, she stated the board could relay to the applicant a continuance of the case upon the applicant’s additional time to present a revised site plan for variance approval. Chairman Bray stated his opinion the applicant has not presented a hardship in the variance request. Ms. Huffman stated the board can decide to approve the variance if they choose too based on presentation today. Mr. Miller stated the applicant presents a hardship due to residential structures in the B1 zoning district. Mr. Moore stated if the residential structures were not present at the location, a variance would not be warranted. Mr. Miller stated if the proposed building was moved to the front, the variance would not be warranted. Mr. Moore stated the challenges are throughout the area in Castle Hayne of B1 zoning with residential presence. Mr. Bone stated the setbacks on the site consume about 75% of the developable area. Mr. Adams inquired as to the five various building plans and alterations referenced by the applicant. Mr. Adams stated the corner area of the lot presents challenges and the applicant is presenting the best solution and least impactful. Mr. Bone stated the site plan presented seemed to be the least impactful to the area. Mr. Adams stated the applicant has addressed the pond requirements, however the corner area seems to present challenges for the applicant. Mr. Miller stated the applicant seems to present the type of buffer required, however it lacks some additional spacing. Mr. Bone stated they have the type of buffer required for the site but are requesting additional spacing for the buffer. Mr. Miller stated 75% of the requested setback is extreme. However, due to the residential use they require assistance for compliance. Mr. Bone stated that due to the residential use on the site they require variance approval. 11 Mr. Miller asked if the structures at the site are permanent. Mr. Bone stated the structures are permanent stick built homes at the site. Chairman Bray stated that the adjacent Dollar General per the aerial appears to be set 5ft setback from property line. Chairman Bray inquired of repositioning the proposed site to the southern area of the lot with parking to the northern area of the property site. Mr. Bone stated if repositioning the subject store would require a variance from a different angle. Mr. Miller stated despite the applicant’s attempt to reposition the proposed structure, they will require a variance for compliance due to the B1 presence. Chairman Bray inquired if the applicant can propose a smaller building due to the building constraints at the site. Mr. Bone stated the store has not proposed a smaller version of the building. Mr. Bone stated the store is programmed out in architectural and programmed a standard size building. Mr. Bone stated to alter the standard size store would impact the business. Mr. Bone stated the store prefers to stay with the standard size prototype structure. Mr. Adams inquired as to the size of the structure. Mr. Bone stated the smallest narrow size structure is proposed. Mr. Moore inquired if the setbacks at the site would apply without residential structures. Mr. Andrea stated setbacks or buffer requirements would not apply. Chairman Bray swore in Mr. Buck O’Shields. Mr. O’Shields (Former ZBA Board Member; acquaintance to adjacent neighbor). Mr. O’Shields stated there is no mention of implementing a road at the site. Mr. O’Shields stated the applicant is required to provide testimony in support of the variance that the approval meets the four findings of fact. Mr. O’Shields stated the proposed narrative by the applicant states the residence on site is habitual. Mr. O’Shields stated homes are allowed in the B-1 zoning district. Mr. O’Shields stated he is concerned of the store impact to the Davis property at the southwest area toward Kerr Ave. Mr. O’Shields stated that the variance requirements to the board in approving a variance. Mr. O’Shields stated prior to the owner purchasing the site all current zoning requirements were in effect. Mr. O’Shields stated he is familiar with zoning requirements from his career in building construction for the past forty-five years. Mr. O’Shields stated in adhering to purchased property he would suggest the property owner construct a building that would fit within the lot size purchased. Mr. O’Shields stated the applicant is responsible for constructing a suitable building within L-Shape lot. Mr. O’Shields stated rural areas in Castle Hayne vary in size. Mr. O’Shields stated various size lots do not require approval of variance. 12 Mr. O’Shields stated the applicant was to research the zoning prior to purchase. Mr. O’Shields stated the applicant was aware of residences on the property prior to purchase in the B-1 district. Mr. O’Shields stated the applicant presented an application requesting for variance approval to make changes to construct the store. Mr. O’Shields stated in citing the facts of findings requirements who does the variance best favor in substantial justice. Mr. O’Shields stated that the adjacent neighbor Mr. Davis was not notified of the meeting within adequate timing. Mr. O’Shields stated he was not aware of the applicant requesting multiple variances at the site prior to the meeting. Mr. O’Shields stated he would propose to the board to continue the case for thirty days or the next meeting date so that he and adjacent concerned neighbors who the variance may impact review submitted information by the applicant. Mr. O’Shields stated the proposed site has value to the community and impacted neighbors do not want a facility to impose loss of value to surrounding structures. Mr. Miller inquired if advertised notices and submitted mailings were completed for the public requirements. Mr. Andrea stated all public notice requirements were met for the case presented. Mr. Andrea stated there are strict, quick time spans prior to meetings to adhere to submittal of public advertisement as well as sign posting regulations per county policy. Mr. Andrea stated there is a three-week time span that includes the application deadline and the meeting date. Mr. Andrea stated all public notices requirements were met and completed within regulation. Chairman Bray inquired when are notices submitted publicly. Mr. Andrea stated public mail notices are submitted a week or more to surrounding residences prior to the meeting. Mr. O’Shields stated the notice for Mr. Davis was postmarked on November 8th. However, Mr. Davis received the notice the Tuesday before the meeting date. Mr. O’Shields stated the notice should be received earlier as the meeting topic could impact adjacent property. Mr. Miller inquired when was the sign posted for the meeting. Mr. Andrea stated a sign was posted of a variance hearing at the subject site immediately after the application deadline. Mr. Andrea stated the variance sign was posted at the subject site two weeks prior to the hearing date of the meeting. Ms. Huffman inquired if the applicant’s narrative in regards to the southern vacant lot area stated language the residence deemed inhabitable. Ms. Huffman inquired to the staff if the property mentioned on the southern area the residence of Mr. Davis as Mr. Shields references. Mr. Andrea stated he’s not aware of the home to the south of the subject site being inhabitable. Mr. Andrea stated the status of the southern home does not impact the determination of the county ordinance. 13 Mr. Andrea stated the presence of home being near the subject site is a subject matter as it pertains to variance request. Ms. Huffman inquired how many houses are located at the property to the south of subject site. Mr. O’Shields stated there is one property at the southern area adjacent to the subject site that Mr. Davis owns. Ms. Huffman inquired if does Mr. Davis resides at the southern property near the subject site. Mr. Miller inquired if anyone resides at Mr. Davis property near the subject site. Mr. O’Shields stated currently the southern residence that Mr. Davis owns is vacant. Mr. Adams inquired how long the property has been empty. Mr. O’Shields stated he’s not aware how long the property has been vacant. However, he states there are several sites throughout the county that have been rehabilitated. Mr. O’Shields stated he was involved in the rezoning of the area to match surrounding areas. Mr. Moore inquired when was the B1 zoning effective in the subject site community. Mr. Andrea stated the zoning was effective as of 2012. Mr. Moore stated if the approval of the 2012 rezoning included commercial zoning; it is fair to assume a future possible use for the community in entering businesses; landscaping can change for the area. Mr. O’Shields stated he has dealt with real-estate for over forty years and sometimes property owners don’t like to sell to potential business owners. Mr. O’Shields stated he’s currently speaking on behalf of the current existence of the property in question owned by Mr. Davis. Mr. O’Shields stated adjacent property owners should not lose value to their home of potential granted variances to the area. Chairman Bray inquired the opinion of Mr. O’Shields if the applicant completed due diligence of proposed store site. Mr. O’Shields stated the applicant should invest additional research to the site and others around, mainly the site to the southern area owned by Mr. Davis. Mr. O’Shields stated in his opinion it would’ve been beneficial to offer and obtain the referenced property; consolidate surrounding land and propose a plan to construct that adheres to the established codes and regulations allowed. Mr. O’Shields stated if what was proposed was not allowed per ordinance it is the business owner’s monopoly. Mr. Moore inquired if the applicant has purchased the subject site or is it under contract. Mr. Andrea stated the applicant owns the property for the proposed store. Mr. Miller stated the NC School of Government implies an applicant can still present a hardship to due diligence knowing after a purchased parcel has direct constraints to potential ordinance guidelines and a variance is required. Mr. Moore stated the NC School of Government recognizes zoning has the potential to change throughout the counties. 14 Mr. O’Shields stated in past business development things change and property owners have paid fines to obtain a variance. However, he’s concerned of the ordinance guidelines are not being considered prior to purchase of property’s. Ms. Huffman referenced consideration of the proposed store to be placed at the end of the lot. Chairman Bray stated the proposed store shown on the aerial map adjacent to the Family Dollar if placed elsewhere on the lot can present other challenges to construction rather than what’s been proposed. Chairman Bray stated he’s concerned of Fire access and Safety services. Mr. O’Shields inquired if the variance(s) are denied what is the procedural for appealing the board’s decision. Chairman Bray stated the applicants have 30 days to appeal the decision. Ms. Huffman clarified the question by Mr. O’Shields of when the applicant can return if the variance is disapproved. Mr. O’Shields inquired if the appeal goes to the County Commissioners for decision. Ms. Huffman stated if the decision is denied by the zoning board the appeal is presented to the Superior Court. Mr. O’Shields inquired of the time limit the county has to reconsider a variance from the applicant once the court has made a decision. Ms. Huffman stated the applicant can choose to reappear and request a different variance at a later time. Mr. Wyatt Bone (Rebuttal) Mr. Bone stated in regards to the neighboring house near the proposed store site, upon street view he classified the house inhabitable. Mr. Bone apologized about mischaracterization of the house condition on southern end. As the house relates the building setbacks and the variance requested today they are meeting the required landscape setback to the parcel and required building setback. Mr. Bone stated they have contacted one of the property owners in the beginning regarding the proposed store due to uncertainty of impact to the neighbor. Mr. Bone stated after further review through the process there was not an impact to that property owner and contact was discontinued. Mr. Bone stated the requested variance did not pertain to this owner’s property. Mr. Bone stated he’s continued communication today with Mr. Inman about the variance. Mr. Inman has been made aware currently of the case however he’s not reviewed the most recent deletions pertaining proposal at the hearing. Mr. Bone stated the property is subject to a hardship due to the geometry. Mr. Bone stated he’s not aware of the neighborhood lots having the same construction constraints; most lots are square or rectangular in sizing. Mr. Bone stated the current lot presents a hardship in geometry as the lot imposes 75% of the building parcel. Chairman Bray inquired was consideration given during the purchase of the property as to building placement and variance. Mr. Bone stated he cannot speak to the purchaser, O’Reillys, mindset on the purchased lot. Chairman Bray asked Mr. Bone of his communication with Mr. Inman, adjacent neighbor and his concerns of the proposed store plans. Mr. Bone stated he proposed the plans to Mr. Inman and he had no objections. 15 Ms. Huffman advised that current statement made by Mr. Bone regarding adjacent neighbor, Mr. Inman, opinion and or agreement of proposed plans are hearsay due to Mr. Inman is not present at today’s hearing. Mr. Bone stated it’s the applicant’s position to have the variance granted. Mr. Bone stated he is up to additional time and future discussion on the topic. Mr. Bone stated they are not subject to speaking with Mr. Davis, the property owner or the adjacent proposed store due to the variance request is not being on their property. Mr. Bone concluded that they are proposing a plan that meets the landscape and building setbacks. Chairman Bray asked Mr. Bone if the applicant’s request is denied does he have knowledge of O’Reillys future plans for site. Mr. Bone stated he cannot relay what O’Reillys would propose if variance is not approved. Mr. Bone stated he would like to know if what has been presented meets the staff or board approval. Mr. Bone is interested in a continuance of the case if the board discussion finds additional findings may be relevant for an approval decision. Ms. Huffman stated once the applicant is completed testimony on the variance request and the hearing is closed, the board will deliberate on what has been presented for a decision. Ms. Huffman stated once discussion takes place the applicant can request a continuance if they choose based on the public board discussion. Mr. O’Shields- (Rebuttal) Mr. O’Shields stated if the applicant is proposing a continuance of thirty days to revisit the topic they are in agreement of the request. Mr. O’Shields stated that would give him and adjacent owner(s) time to review what is being proposed by the applicant and the impact to adjacent owners. Chairman Bray Closed the public hearing. Board Deliberation Mr. Miller stated he is in favor of voting for the variance approval today based on what has been presented by applicant. Mr. Miller stated as to the four findings of fact the applicant has a hardship due to the B1 zoning with residential presence also the unique shape and lot size in the Castle Hayne area. Mr. Miller stated the applicant did not self-create the lot size constraints. Mr. Miller stated he is also in favor of a continuance if the applicant chooses. Mr. Moore agreed with Mr. Miller’s proposition of voting for the variance or a continuance. Mr. Adams agreed he’s prepared to vote to approve the variance for reasons stated by the applicant. Mr. Adams stated he’s in favor of granting the variance as presented. Chairman Bray inquired if conditions be placed on the variance. Mr. Adams stated the applicant has presented the least impactful plan, he is not aware that conditions should apply. 16 Chairman Bray stated the applicant’s best interest would be to consider another draft building for the site. Chairman Bray stated due diligence was not performed. Chairman Bray stated that the applicant does not present a hardship. Mr. Miller reiterated the NC School of Government references situations that may present unique obstacles which should not be held against the person seeking variance approval for compliance. Chairman Bray stated the applicant, after purchasing presented the smallest building proposal for the store. The applicant is presented with building constraints to the southeast corner area of the lot as it abuts an adjacent neighbor Mr. Inman. Chairman Bray stated the applicant gave testimony of the neighbor (Mr. Inman) has no objection to the store however the neighbor is not present. Chairman Bray stated the board has been asked to allow an additional thirty days for Mr. O’Shields and Mr. Davis to review plans to their satisfaction. Mr. Adams stated why does additional time need be allotted for the case. Mr. Adams stated the board is familiar with procedures and perform duties regularly upon testimony whereby decisions are made; rules have not changed. Mr. Adams stated the applicant presented the case and the board must meet its obligation if a decision based on the applicant’s testimony. Why does the board consider to changing the rules if the applicant presents its case. Ms. Huffman stated that Mr. Miller referenced the NC School of Government’s most recent amendment in decision making. Ms. Huffman stated if knowing the amended information does not alleviate the fact that the board is challenged with deciding factors of the remaining three findings of fact must be met. Ms. Huffman stated all findings must be met. Chairman Bray stated the setbacks are in excess to the rear end of the building. Chairman Bray stated the proposed plan is close proximity to adjacent Dollar General on other side of property line. Chairman Bray stated the distance from the back corner is about 8ft from the property line to adjacent Family Dollar. Chairman Bray stated the proposed building presents setback requirements to the side; its less than 5ft. Chairman Bray asked if the variance is approved it will be least than 8-10 ft. to accessibility to rear with the buffer and the 6ft fence. Chairman Bray stated the plantings are unknown at the site. Chairman Bray stated if Leland Cypress are planted they have a potential of 30ft by 60ft potential range. Mr. Andrea stated in regards to the discussion of the Family Dollar placement; the proposed store building footprint per aerial images has not changed from the applicant’s original site plan. 17 Mr. Andrea stated the Family Dollar was granted a past variance to locate there building further to the right side of the lot(east). Mr. Andrea stated the Family Dollar did not have to meet the buffer requirements due to the vacant B1 zoned parcel. Mr. Miller inquired of O’Reillys being granted more spacing. Chairman Bray reiterated the accessibility to the rear end for services is compromised. Mr. Moore asked the Chairman would he consider a motion on case hearing. Ms. Huffman stated he would like the applicant to know they have the right to ask for a continuance or continue case. Mr. Miller stated four of the five board members must agree. Mr. Moore made a motion for clarification purposes to the number of variance the applicant requested and current in the meeting has changed, that the staff, adjacent neighbors and board members table the discussion to the next meeting. Mr. Moore stated initially that the applicant requested four variances and is now requesting two. The map presented should be clear for all to view and make judgement on. Mr. Moore stated with all the measurements mentioned he’s not comfortable granting the variance presented. However, he’s in favor of a variance to the site as his opinion the applicant presents a hardship with the B1 district at the site. Mr. Moore stated that regardless of what business is being presented on the lot the setbacks will be hard to achieve with the presence of residential structures. Mr. Moore made a motion the case hearing be tabled with the applicant presenting an adjusted site plan demonstrating what variance they are requesting and the initial variance be taken off the site plan. Chairman Bray second the motion. Ms. Huffman stated the board can do a substitute motion. Ms. Huffman stated that the table motion be made for the next scheduled meeting or whenever the board receives an application to have a meeting. Mr. Moore stated the case proceedings should not cost the county any more money. Mr. Moore stated the case be tabled to the next scheduled board meeting on December 11, 2018. Chairman Bray inquired to Mr. Moore would he be opposed hearing the meeting in January. Mr. Moore stated he would be opposed to table the meeting to January. Chairman Bray stated due to holidays it would be feasible to continue the meeting to January. Mr. Adams stated there has been lengthy discussion on the topic and he’s available for the December meeting. Ms. Huffman stated all members presented today should attend the December meeting. Mr. Miller stated he’s not sure if he is available for the December meeting. Chairman Bray inquired to Mr. Bone is he comfortable with the continuance if all board members are not present. 18 Ms. Huffman asked Mr. Bone is he requesting a continuance for the December or January meeting date. Mr. Bone stated he would like to have five board members for better results. Ms. Huffman stated if the applicant does not have all five board members at the December meeting and wishes to continue the meeting to January additional fees may apply for advertisement. Mr. Bone stated that is acceptable. Mr. Bone Thanks the board for their time. Mr. Moore made a motion to continue the meeting to December. Mr. Moore stated he requests the applicant present a revised site plan of requested variance(s). Mr. Moore stated this motion will give all parties that may be impacted and the staff to review all documents and the board make a sound decision. Chairman Bray seconded the motion. Mr. Adams oppose the motion. The board vote was 4-1. The continuance was approved to the December 11, 2018 meeting. Meeting adjourned. 1 MEETING MINUTES ZONING BOARD OF ADJUSTMENT December 11, 2018 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, December 11, 2018. Members Present Members Absent Raymond Bray- Chairman Kristin Freeman-Alternate Hank Adams- Vice-Chairman Brett Keeler - Alternate Cameron Moore Richard Fern- Alternate Mark Nabell Joe Miller Ex Officio Members Present Ben Andrea - Executive Secretary Linda Painter- Zoning Official Kemp Burpeau – Deputy County Attorney Denise Brown - Clerk The meeting was called to order at 5:32 P.M. by Chairman, Mr. Raymond Bray. Chairman Bray 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 Board also hears appeals of the County’s interpretation and enforcement of the Zoning Ordinance. The appellants have thirty days in which to appeal any decision made by the Board to Superior Court. FIRST ORDER OF BUSINESS: 2019 Zoning Board of Adjustment Calendar adoption. Mr. Moore motioned to approve the 2019 calendar. Mr. Adams second the motion. The 2019 calendar was approved and adopted by the board members. Chairman Bray stated the minutes from the November meeting are in draft status and will be submitted at the next schedule meeting in January for approval. ELECTION OF CHAIRMAN AND VICE-CHAIRMAN FOR 2019 Mr. Bray opened the floor to receive nominations for Chairman of the Zoning Board of Adjustment for the 2019 calendar year. Mr. Hank Adams nominated Mr. Raymond Bray as Chairman of the Board of Adjustment. With there being no further nominations, Deputy Attorney Kemp Burpeau advised that nominations be closed and proceed to vote. 2 Mr. Mark Nabell second the motion. The board voted unanimously to elect Mr. Raymond Bray as the Chairman of the Board. Chairman Bray opened the floor to receive nominations for Vice-Chairman of the Zoning Board of Adjustment for the 2019 year. Mr. Raymond Bray nominated Mr. Hank Adams as Vice-Chairman of the Board of Adjustment. Mr. Adams responded the board has several other members that can fulfil the role of Vice-Chairman. Mr. Mark Nabell re-nominated Mr. Hank Adams as Vice-Chairman. With there being no further nominees the board nominations were closed. Mr. Joe Miller second the motion. The board voted unanimously to elect Mr. Hank Adams as Vice-Chairman of the Board. CASE ZBA-929 CONTINUANCE Chairman Bray explained that Case ZBA-929 is a continuance from the November 15, 2018 meeting. Chairman Bray explained that witnesses sworn in at the previous meeting remain under oath and do not require to be sworn in today for testimony. Ms. Painter stated the applicant, Bohler Engineering, NC PLLC, applicant on behalf of O’Reilly Automotive Stores Inc., property owner, is requesting variances at a property located at 2608 Castle Hayne Road, Wilmington, NC. Ms. Painter stated the subject parcel has land classification of B1 with surrounding AR zoning district. Ms. Painter stated the B1 subject parcel has adjacent structures that have residential uses. Ms. Painter stated the applicant is seeking a variance from the setbacks and the buffers. Ms. Painter stated the setback for this case is determined by the height of the proposed structure. Ms. Painter stated county ordinance setback table calculations for the B1 table displays a 2.75ft multiply to determine the setback based on building height. Ms. Painter stated the applicant is proposing a 19ft high structure which would require setback of 52.25ft. Ms. Painter stated the buffer requirements would be half of the setback determination, in this case it is 26 ft. Ms. Painter reiterated that the county requirements for buffer regulations are 3 rows of plantings, 2 rows of plantings and a fence; or the applicant can include a berm at the site. Ms. Painter presented a visual of the original and the revised site plans submitted by the applicant for today’s case. Ms. Painter stated the initial site plan has been revised by the applicant due to last month’s public comments. 3 Ms. Painter stated the revised site plan for the side yard variance the applicant currently requests includes the proposed building to be 18.2ft from the property line instead of the initial request of the 52.25ft at the November meeting. Ms. Painter stated the revised plan included a reduced buffer width of 6.2ft as opposed to the initial request of 26.12ft at the November meeting. Ms. Painter stated she spoke with New Hanover County Fire Services and a 12ft distance between the building and the fence were sufficient for fire safety purposes after review of revised site plan. Ms. Painter stated the revised site plan displays the rear setback dimensions; the applicant is requesting a buffer adjustment to the dumpster placement. Ms. Painter stated the rear 20 ft. dumpster setback is sufficient. However, the rear delivery pickup encroaches into the 20ft buffer area. Ms. Painter stated the applicant is meeting the required vegetation and fencing requirements. Ms. Painter stated the applicant is required to enclose the dumpster with an 8ft wall or fencing. Ms. Painter presented aerial photos of the surrounding parcels. Chairman Bray reminded everyone was still under oath from the initial swearing at last month’s meeting. Mr. Wyatt Bone; Civil Engineer, -(Bohler Engineering, 4130 Park Lake Ave; Raleigh, NC) Mr. Bone has been consulting with the O’Reillys representatives in constructing the proposed store. Mr. Bone stated after conveying with county plan reviewer in Building Safety they were in agreement to the 12ft spacing being sufficient for Fire Services. Mr. Bone stated the additional fencing would allow access to the roof of the building if required in the future. Mr. Bone stated they initially offered a 10 ft. spacing. However, Building Safety required the 12ft spacing for ladder placing of potential fire services. Mr. Bone presented the landscape plan of rear buffering which includes the 3 rows of necessary plantings in the 20ft setback, which allows space to implement a retention pond. Mr. Bone stated the landscape would be implemented as the code regulation allows. Mr. Bone stated they will implement 2 rows of plants which should complement the proposed fencing. Mr. Bone stated the area that does not require a variance, and they will place 3 rows of plantings to provide required buffering. Mr. Bone stated that by placing the proposed store to the front, the street trees that are required for the site take up a great deal of room whereby make it impossible to push the building closer to the front area. Mr. Bone stated the north side of the property is not subject to the same buffering. Mr. Bone stated the adjacent property owner had no objections to the plans after review. 4 Mr. Bone stated that Mr. Davis, an adjacent property owner is present today. Chairman Bray inquired as to Mr. Inman being contacted about applicant’s proposal. Mr. Bone stated he has not currently spoke to Mr. Inman since the initial meeting in November. The Chairman then closed the public hearing. BOARD DELIBERATION. Chairman Bray stated he’s prepared to make a motion to approve the variance. Mr. Moore stated the applicant revised the site plan based upon board comments at the November meeting regarding safety and access to the site. Mr. Moore stated he’s prepared to second the Chairman’s motion to approve variance or make a motion. Chairman Bray inquired as to Vice-Chairman Adams. Mr. Adams stated he’s in favor to move forward to approve the variance. Chairman Bray revisited the motion to approve the variance. Vice-Chairman Adams second the motion to approve the variance. All ayes to approve the variance. Deputy County Attorney, Kemp Burpeau inquired if the board’s approval of the variance is incorporated with the finding of facts requirements. Chairman Bray stated the variance approved is based on the four findings of fact. The Board cited the following conclusions and findings of fact: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically setbacks required per Section 60.3 and the buffers required per Section 62.1-4 of the New Hanover County Zoning Ordinance, that an unnecessary hardship would result/would not result. (It shall not be necessary to demonstrate that, in absence of the variance, no reasonable use can be made of the property.) This conclusion is based on the following FINDINGS OF FACT:  The adjacent properties, while zoned B-1, are occupied with residential uses. This mandates larger setbacks and buffers then normally required in a B-1 zoning district.  Setbacks required for a building height of 19 feet would take up approximately 75% of the lot area. This would leave insufficient area to construct the smallest building prototype for an O’Reilly Automotive. 2. It is the Board’s conclusion that the hardship of which the applicant complains results/does not result from unique circumstances related to the subject property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that 3 Ms. Painter stated planted buffers must meet this requirement of opacity within 1 year of planting. Ms. Painter stated buffers are required to be at least half the distance of the setback; with the minimum buffer at the subject site being 20 ft. Ms. Painter stated based on the building height of 19 ft. and the setback of 70 ft.; that these proposed totals would be 43ft. Ms. Painter stated for the side setback of 52 ft., would require the buffer would be 26 ft. Mr. Miller inquired if would the projected totals presented be required for the entire subject site buffer. Ms. Painter stated buffer requirements are only required when it abuts a residential zoning district or a piece of parcel that has a residential structure on it for use. Ms. Painter stated the property to the north of the subject site does not require buffering due to its business use. Ms. Painter presented visual of the New Hanover County Zoning Ordinance description of buffer requirements in Section: 60.3: Setbacks. Ms. Painter mentioned dumpsters are not allowed in buffers; however, storm water ponds are allowed in the buffer as long as it has sufficient area to meet the opacity requirement. Ms. Painter stated the ordinance includes several ways buffers can be installed; such as natural vegetation, supplemented to allow the 100 % opacity, as well as providing 3 rows of planted vegetation that are 6ft tall at the time of planting. Ms. Painter also stated solid fences 6-10ft. in height with two rows of 3ft in height plants are allowed in the buffer areas. Ms. Painter stated berms are allowed in the buffer area of a required 6ft tall height. Ms. Painter presented visual aerials of the subject site plan displaying the ordinance requirements and the applicant’s variance dimensional request with buffer request. Ms. Painter stated the applicant is proposing for additional parking spaces at the site above what the ordinance requires for a retail site of approximately 7000 sf. Ms. Painter stated the requirement of spaces is 18, however, the applicant is providing for 25 spaces. Ms. Painter presented additional visual photos of the adjacent Family Dollar, structures to the south with additional view of the rear AR; Airport Residential zoning aerial. In addition, residence and adjacent out parcels at the site are visually displayed. Attorney Huffman requested additional presentation regarding the aerial overlay descriptive of the subject site. Ms. Painter reiterated the blue dotted line on the subject site as viewed in the application packet are the required setback for the subject site based on the height of the building. Ms. Painter stated the green solid line presented in the visual is the setback that the applicant is requesting to be allowed. Ms. Painter stated the dotted green line as presented in the visual is the proposed buffer which would require the variance setback. 5 are common to the neighborhood or the general public, may not be the basis for granting a variance.) This conclusion is based on the following FINDINGS OF FACT:  The lot is L-shaped, creating two additional property lines which would be subject to setback and buffer requirements. 3. It is the Board’s conclusion that the hardship did/did not result from actions taken by the applicant or the property owner. (The act of purchasing 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:  Residential uses on adjacent properties in an existing B-1 zoning district were not the result of actions taken by O’Reilly Automotive. 4. It is the Board’s conclusion that, if granted, the variance will/will not 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:  Reduced setbacks will not adversely affect health and public safety.  Area zoned B-1 were intended to have business uses which would not require large setbacks and buffers. Chairman Bray inquired of additional business to address or motion to adjourn. Mr. Nabell motion to adjourn. Mr. Adams second the motion to adjourn. Meeting adjourned. ________________________________ _________________________________ Executive Secretary Chairman Date: _____________ ZBA-932 Page 1 of 3 APPEAL OF ZONING DETERMINATION ZONING BOARD OF ADJUSTMENT FEBRUARY 26, 2019 CASE: ZBA-932 APPELLANT: Paul and Sandra Seiferth LOCATION: 815 Seven Oaks Drive PID: R04500-001-009-000 ZONING: R-20, Residential District SUMMARY OF APPEAL: Paul and Sandra Seiferth are appealing a written determination issued on November 7, 2018 by Planning & Land Use staff regarding the applicability of Conservation Overlay District (COD) regulations to the parcel located at 815 Seven Oaks Drive. STAFF SUMMARY: Section 55.1 of the New Hanover County Zoning Ordinance contains regulations pertaining to the COD, where the stated purpose is to protect important environmental and cultural resources within the County. These regulations contain controls on certain environmental features that may be present on a parcel. These provisions address activities such as conservation of space, alteration and clearing of natural conservation space, access, stormwater and runoff retention, setbacks, buffering, erosion control, and habitat management. The COD requirements contain provisions that determine what properties these additional regulations apply to, and there are certain exemptions for lots of record that existed prior to December 1, 1984, the date which the COD regulations were adopted in the Zoning Ordinance. The applicable ordinance language is as follows: 55.1 -2: Applicability - The development and improvement of property, including the division of land, shall be subject to these performance controls if the parcel of record is located wholly or partially within a COD and if conservation resources, as specified in Section 55.1-3, are associated with the parcel on record as of December 1, 1984, the effective date of this ordinance. However, the following uses on lots of record as of December 1, 1984 shall be exempted from these controls: (8/4/08) (1) The development of one single family home detached structure, one residential duplex, or the location of two or fewer mobile homes on a parcel or lot of record as of December 1, 1984. (8/4/08) (2) Commercial, industrial, office or institutional development on lots of record as of December 1, 1984 and involving a land disturbance of less than 1 (one) acre in area. (8/4/08) (3) The development or division of a parcel of record as of December 1, 1984 that meets both of the following conditions: (8/4/08) (A) No part of the development or division shall be located within a distance equal to or less than the setback distance (specified in Section 55.1-5) of any conservation resource or space existing on the parcel or on a contiguous parcel of record. (8/4/08) ZBA-932 Page 2 of 3 (B) No part of the development or division shall be located on any portion of the parcel that is part of the upper drainage basin for any conservation resource or space on the parcel or within the specified setback on a contiguous parcel of record. (8/4/08) Per Section 55.1-2 (1), a detached single-family home is exempted from these performance controls if it is located on a lot of record as of December 1, 1984. Lot of Record is defined in the Zoning Ordinance as: Lot of Record - A lot which is part of a subdivision recorded in the Office of the Register of Deeds, New Hanover County, or a lot or parcel described by metes and bounds, the description of which has been so recorded. (23-20) Per the letter of determination on the subject property, staff concluded that “the subject parcel became a lot of record through the recordation of the deed conveying the subject parcel from Xenith Bank to the Seiferths (Book 6112 Pages 845-849) on December 28, 2017. This is after the December 1, 1984 applicability date referenced in the COD regulations in Section 55.1 of the Zoning Ordinance. Therefore, the subject parcel is subject to the Conservation Overlay District regulations.” The appellants contend that the tract is a remnant of the initial 1927 C.N. Dunn division, and as such existed as a Lot of Record prior to December 1, 1984, meeting the exception from the COD regulations specified in Section 55.1-2 (1). In 1927, the C.N. Dunn Place map of subdivision was recorded in Map Book 2, Page 28 of the NHC Register of Deeds. This map divided a large area of property along Pages Creek into 12 tracts, and the subject property is a remnant portion of the original Tract 7 of this division. Over the years, Tract 7 has been further subdivided into other lots, and it currently is comprised of 14 individual lots, including the subject property. The appellants have prepared a series of exhibits that detail the historic subdivisions and conveyances on Tract 7. Figure 1: Initial boundary of Tract 7 with current 14-lot configuration Pages Creek Subject Property ZBA-932 Page 3 of 3 The current deed for the subject property was conveyed to the Seiferths from Xenith Bank on December 29, 2017. It is staff’s position that the recording of this deed, which contained a metes and bounds description, constitutes a new Lot of Record after December 1, 1984 and thus subject to the COD regulations. In summary, the appellant contends that the parcel, as a remnant of the original 1927 division, was a Lot of Record prior to December 1, 1984 and thus the development of a detached single family home is not subject to the COD regulations. The appellant is appealing staff’s decision that the parcel did not become a Lot of Record until its’ conveyance to the Seiferths through the recording of the metes and bounds description in the deed recorded on December 29, 2017. BOARD OF ADJUSTMENT POWER AND DUTY: The Zoning Board of Adjustment has the authority to hear and decide appeals where it is alleged by the appellant that there is error in any decision made by the zoning administrator or other administrative officials in the carrying out or enforcement of any provision of the Zoning Ordinance. A majority of the members of the Board shall be necessary to reverse, wholly, or partly, any such decision. Vacant seats and disqualified members are not considered in calculating majority. An appeal from the decision of the Zoning Board of Adjustment shall be subject to review by the Superior Court by proceedings in the nature of certiorari. Any petition for review by the Superior Court shall be filed with the Clerk of Superior Court within 30 days after the decision of the Board is filed in the Office of the Clerk to the Board, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the Clerk or Chairman of the Board at the time of the hearing of the case, whichever is later. ACTION NEEDED (Choose one): 1. Motion to uphold all or some of the zoning determinations issued by staff. 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to overturn any or all of the zoning determinations issued by staff. DUN B A R FRID A Y PAG E S C R E E K J O H N S O R C H A R D S E V E N O A K S BAYSHOR E CEDAR R A M B L E P O I N T B A I L E Y H A R B O R NORTH HILLS L O N G J O H N S I L V E R BAYSHORE Case: ZBA-932815 Seven Oaks DriveAppeal of Zoning DeterminationApplicant and Owner: Paul and Sandra Seiferth New Hanover County Zoning Board of Adjustment Vicinity Map February 26, 2019 E 500 Feet DUN B A R FRID A Y PAG E S C R E E K J O H N S O R C H A R D S E V E N O A K S BAYSHOR E CEDAR R A M B L E P O I N T B A I L E Y H A R B O R NORTH HILLS L O N G J O H N S I L V E R BAYSHORE R-20 R-20 R-15 R-20 R-15 R-15 R-15 R-15 R-15 R-15 R-20 R-15 R-15 R-15 Case: ZBA-932815 Seven Oaks DriveAppeal of Zoning DeterminationApplicant and Owner: Paul and Sandra Seiferth New Hanover County Zoning Board of Adjustment Zoning Map February 26, 2019 E 500 Feet DUN B A R S E V E N O A K S JO H N S O R C H A R D CEDAR RAMBLE B A I L E Y H A R B O R PAG E S C R E E K Case: ZBA-932815 Seven Oaks DriveAppeal of Zoning DeterminationApplicant and Owner: Paul and Sandra Seiferth New Hanover County Zoning Board of Adjustment Aerial Map February 26, 2019 E 400 Feet ZBA-934 Page 1 of 4 VARIANCE REQUEST ZONING BOARD OF ADJUSTMENT FEBRUARY 26, 2019 CASE: ZBA-934 PETITIONER: Paul and Sandra Seiferth REQUEST: Variance from the 75’ setback for structures and impervious surfaces as required in Section 55.1- 5, Additional Performance Controls, of the New Hanover County Zoning Ordinance. LOCATION: 815 Seven Oaks Drive PID: R04500-001-009-000 ZONING: R-20, Residential District ACREAGE: 3.83 Acres PETITIONER’S REQUEST: Paul and Sandra Seiferth, property owners, are requesting a variance from the 75’ setback for structures and impervious surfaces as required in Section 55.1-5, Additional Performance Controls, of the New Hanover County Zoning Ordinance. The specific dimensions proposed to encroach into the conservation resource will be detailed by the applicant at the time of the hearing. The property is located at 815 Seven Oaks Drive, Wilmington, NC. BACKGROUND AND ORDINANCE CONSIDERATIONS: On October 26, 2018, the applicant’s agent requested a formal determination as to the application of Conservation Overlay District (COD) regulations on the subject property, as they intend to construct a single family residence on the northwestern portion of the subject parcel. County staff responded with a determination that the COD regulations do apply to this lot on November 7, 2018. On December 4, 2018, an appeal of this determination was filed, with the appellants contending that the COD regulations do not apply to this property for reasons stated within that application. The appeal of this determination will precede the hearing for this request. Should the Board find that the COD regulations do apply to the subject property as detailed in case ZBA-932, the applicant has prepared an application for variance from Section 55.1-5, Additional Performance Controls, within the COD section, which requires that all structures and impervious surfaces be set back 75’ from the edge of the resource. On this property, the applicable conservation resource is a salt marsh. The applicable Zoning Ordinance language states: 55.1-5 Additional Performance Controls - In addition to the general performance controls specified in Section 55.1-4, 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 resources with conflicting performance controls, then the most restrictive controls shall apply. However, improvements as specified in Section 55.1-4(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) ZBA-934 Page 3 of 4 The subject property consists of 3.83 acres and is located off of Middle Sound Loop Road, adjacent to Pages Creek. The applicants obtained the property in 2017 and have proposed construction of a single family residence on the northwestern portion of the lot, as shown in Exhibit “A1” provided in the application. The northern portion of the lot is directly adjacent to Pages Creek, which is classified as a salt marsh and thus subject to the 75’ COD setback. This side of the lot does have an irregularly shaped boundary due to the natural topography of Pages Creek, which limits the buildable area on this portion of the parcel when the 75’ setback is applied. The property is also bisected by a 30’ wide utility easement, recorded in Map Book 43, Page 309 of the New Hanover County Registry. Figure 2 – 30’ utility easement bisecting the lot as recorded in MB 43, PG 309 of the NHC Registry There are additional regulations affecting development on the site that are not the subject of this variance request. Adjacent to the north of the parcel are coastal wetlands; from the normal high water line extending 30’ landward is a CAMA (N.C. Coastal Area Management Act) buffer that must remain undisturbed with few exceptions. No portion of a structure can encroach into the CAMA buffer, and any development proposed within 75’ of the normal high water line must obtain a CAMA permit. In addition, the property does lie partially within an AE Special Flood Hazard Area with a Base Flood Elevations of 14’ and 13’. All development within a Special Flood Hazard Area must follow the applicable requirements within the Flood Damage Prevention Ordinance. In summary, the petitioner is requesting a variance from the 75’ setback for structures and impervious surfaces as required in Section 55.1-5, Additional Performance Controls, to allow encroachment of a portion of a proposed single family home into the COD setback area. ZBA-934 Page 2 of 4 Groups of Additional Performance Control by Reference Number 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. Figure 1 – Aerial photograph of subject parcel and surrounding vicinity. Pages Creek Approximate Location of 30’Utility Easement ZBA-934 Page 4 of 4 BOARD OF ADJUSTMENT POWER AND DUTY: The Board of Adjustment has the authority to authorize variances from the terms of the Zoning Ordinance where, due to special conditions, a literal enforcement of the regulations would result in unnecessary hardship. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with the Zoning Ordinance. A concurring vote of four-fifths (4/5) of the voting members of the Board shall be necessary to grant a variance. A variance shall not be granted by the Board unless and until the following findings are made: 1. Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. 2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting 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 granting a variance. 3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. 4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. ACTION NEEDED (Choose one): 1. Motion to approve the variance request based on the findings of fact (with or without conditions) 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to deny the variance request based on specific negative findings in any of the 4 categories above. ORDER TO GRANT/DENY A VARIANCE – Case ZBA-934 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on February 26, 2019 to consider application number ZBA-934, submitted by Paul and Sandra Seiferth, a request for a variance to use the property located at 815 Seven Oaks Drive in a manner not permissible under the literal terms of the ordinance and having heard all the evidence and arguments presented at the hearing, makes the following FINDINGS OF FACT and draws the following CONCLUSIONS: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 75’ conservation space setback required per Section 55.1-5 of the New Hanover County Zoning Ordinance, that an unnecessary hardship would result/would not result. (It 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:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. 2. It is the Board’s conclusion that the hardship of which the applicant complains results/does not result from unique circumstances related to the subject property, such as location, size, or topography. (Hardships resulting 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 granting a variance.) This conclusion is based on the following FINDINGS OF FACT:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. 3. It is the Board’s conclusion that the hardship did/did not result from actions taken by the applicant or the property owner. (The act of purchasing 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. It is the Board’s conclusion that, if granted, the variance will/will not 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:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. THEREFORE, on the basis of all the foregoing, IT IS ORDERED that the application for a VARIANCE from New Hanover County Zoning Ordinance to allow a ____’ variance from the setbacks required per Section 55.1-5 of the New Hanover County Zoning Ordinance be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 26th day of February, 2019. ____________________________________ Raymond Bray, Chairman Attest: ____________________________________ Kenneth Vafier, Executive Secretary to the Board DUN B A R FRID A Y PAG E S C R E E K J O H N S O R C H A R D S E V E N O A K S BAYSHOR E CEDAR R A M B L E P O I N T B A I L E Y H A R B O R NORTH HILLS L O N G J O H N S I L V E R BAYSHORE Case: ZBA-934815 Seven Oaks DriveVariance Request: Variance from COD Setback RequirementsApplicant and Owner: Paul and Sandra Seiferth New Hanover County Zoning Board of Adjustment Vicinity Map February 26, 2019 E 500 Feet DUN B A R FRID A Y PAG E S C R E E K J O H N S O R C H A R D S E V E N O A K S BAYSHOR E CEDAR R A M B L E P O I N T B A I L E Y H A R B O R NORTH HILLS L O N G J O H N S I L V E R BAYSHORE R-20 R-20 R-15 R-20 R-15 R-15 R-15 R-15 R-15 R-15 R-20 R-15 R-15 R-15 Case: ZBA-934815 Seven Oaks DriveVariance request: Variance from COD Setback RequirementsApplicant and Owner: Paul and Sandra Seiferth New Hanover County Zoning Board of Adjustment Zoning Map February 26, 2019 E 500 Feet DUN B A R S E V E N O A K S JO H N S O R C H A R D CEDAR RAMBLE B A I L E Y H A R B O R PAG E S C R E E K Case: ZBA-934815 Seven Oaks DriveVariance request: Variance from COD Setback RequirementsApplicant and Owner: Paul and Sandra Seiferth New Hanover County Zoning Board of Adjustment Aerial Map February 26, 2019 E 400 Feet ZBA-933 Page 1 of 3 APPEAL OF ZONING DETERMINATION ZONING BOARD OF ADJUSTMENT FEBRUARY 26, 2019 CASE: ZBA-933 APPELLANT: Myron Smith, Jr. and Thomas Oliver LOCATION: 4245 Buck Drive PID: R01900-001-010-023 ZONING: R-15, Residential District SUMMARY OF APPEAL: Myron Smith, Jr. and Thomas Oliver are appealing a written determination issued on November 13, 2018 by Planning & Land Use staff that the subject property does not meet the requirements of the New Hanover County Zoning Ordinance for the issuance of a building permit for a single family residential structure. STAFF SUMMARY: The subject parcel is one of twelve lots with access to Buck Drive, which is an unimproved, dedicated right-of-way with direct access to Sidbury Road. On October 19, 2018, the applicant’s agent requested information from county staff relating to the permitting of a single-family residence on this property. On November 13, 2018, county staff responded with a determination that allowing a structure to be permitted on the lot would not comply with the access requirements specified in Section 61.2 of the New Hanover County Zoning Ordinance: Section 61.2: Structures to Have Access 61.2-1: Every structure hereafter erected or moved shall be on a lot adjacent to a road as defined in Section 23-86, or to a right-of-way or easement which was platted and recorded prior to 1969. The following are exempt from the requirements of this Section: (1/5/81) (8/2/82). (1) Lots of record prior to the adoption of this Ordinance that have sufficient area to meet the minimum requirements of the district in which they are located; (2) Structures that are to be used in conjunction with a bona fide farming operation; and, (3) Building lots having access over a private driveway or easement at least thirty (30) feet in width (5/1/89) to a road as defined in Section 23-86, provided the driveway or easement is an easement appurtenant to three (3) or fewer lots and the easement is solely owned by a lot owner or in common by three (3) or fewer lot owners. “Roads”, as referred to in subsection (3) above, is defined in Section 23-86 as follows: Roads - Any road, highway, way, alley, lane, court, drive, or easement, whether public or private, used as a means of access which meets the minimum requirements for subdivision roads as specified by NCDOT and New Hanover County and which has been duly platted and recorded as per the requirements set forth by New Hanover County. (8/3/87) (23-86) ZBA-933 Page 2 of 3 Staff determined that the subject property does not meet any of the exemptions stated in Section 61.2-1, nor is Buck Drive currently constructed to the minimum requirements for NCDOT or private subdivision roads, which are detailed in the NCDOT Subdivision Manual and the New Hanover County Subdivision Ordinance. As staff currently considers Buck Drive a private driveway (as referred to in Section 61.2-1(3)) that is providing access to more than three lots, staff opines that an additional building permit cannot be granted until the road is improved to NCDOT or private subdivision road standards. The county’s private street requirements and cross sections are depicted in Exhibit A of this summary. The appellant contends that Buck Drive is an established road and is designated as a “Local” street on WMPO and NCDOT Functional Classification maps, and is a named street on the New Hanover County tax map records. In summary, the applicant is appealing the county staff determination that this property does not meet the access requirements specified in Section 61.2 of the Zoning Ordinance, and that Buck Drive does not meet the minimum requirements for Roads as defined in the Zoning Ordinance. BOARD OF ADJUSTMENT POWER AND DUTY: The Zoning Board of Adjustment has the authority to hear and decide appeals where it is alleged by the appellant that there is error in any decision made by the zoning administrator or other administrative officials in the carrying out or enforcement of any provision of the Zoning Ordinance. A majority of the members of the Board shall be necessary to reverse, wholly, or partly, any such decision. Vacant seats and disqualified members are not considered in calculating majority. An appeal from the decision of the Zoning Board of Adjustment shall be subject to review by the Superior Court by proceedings in the nature of certiorari. Any petition for review by the Superior Court shall be filed with the Clerk of Superior Court within 30 days after the decision of the Board is filed in the Office of the Clerk to the Board, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the Clerk or Chairman of the Board at the time of the hearing of the case, whichever is later. ACTION NEEDED (Choose one): 1. Motion to uphold all or some of the zoning determinations issued by staff. 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to overturn any or all of the zoning determinations issued by staff. ZBA-933 Page 3 of 3 Exhibit A New Hanover County Subdivision Ordinance 52-4 Streets (12/10) All streets shall be constructed, inspected, and approved in accordance with the following requirements. (5/88) Private Streets: (a) Streets designated as private shall be constructed to minimum construction standards as adopted by New Hanover County and certified by a professional legally recognized by a State of North Carolina licensing board as being licensed to perform such activities or undertakings. (b) Pavement design shall meet the requirements as specified and shown in the road profiles depicted in Article VIII of the County’s Subdivision Regulations under Appendices & Certificates. (c) Streets designated as private may be allowed in subdivisions once they are reviewed and approved by the County’s Technical Review Committee (TRC). In their review, the TRC will consider unique physical conditions of the property including but not limited to connectivity, topography, geometric design, storm water, tree preservation, ingress and egress, reduction of speed to desirable or safe levels and other safety measures and that sufficient language is provided through a legally established property owner’s association that the streets will be properly maintained. (d) Whenever a private street intersects a U.S., NC highway, or Secondary Road, an approved NCDOT Driveway Permit signed by the District Engineer will be required prior to final plat approval. (e) Private road stubs and dead end streets shall be constructed/paved to the property boundary and shall not contain gates or obstructions to qualify for connectivity standards as stated in Section 41-1 (7)(f). (f) Streets designed as collector roads that accept traffic from local streets will be required to be designated as public and adhere to the standards under public streets as noted above. 44 MATRIX TABLE FOR PRIVATE ROAD ROW SPECIFICATIONS ROAD DESIGN STANDARDS Alley Cul-de- sac Local Collector ROW (R) 20 45 45 50 Travelway Width (W) 18 22 24 26 Minimum Horizontal Centerline Radius 55 100 100 200 Minimum Edgeline Radius at Corners N/A 15 25 30 Pavement Design Standard (NCDOT) Local Local Local Collector General Standards: Minimum Offset Between Centerlines of Intersections 200 Tangent Length Between Horizontal Curves 100 Maximum Cul-de-sac Length 500' Plaza Width (between back of curb and sidewalk) 5' Sight Distance Triangle at Intersections 10'x70' 45 Case: ZBA-933 New Hanover County Zoning Board of Adjustment Vicinity Map February 26, 2019 E 1,000 Feet Address: 4245 Buck DrAppeal of Zoning DeterminationApplicant and Owner: Myron Smith Jr and Thomas Oliver R-15 New Hanover County Zoning Board of Adjustment Zoning Map February 26, 2019 ECase: ZBA-933 Address: 4245 Buck DrAppeal of Zoning DeterminationApplicant and Owner: Myron Smith Jr and Thomas Oliver 1,000 Feet SIDBURY Case: ZBA-933 New Hanover County Zoning Board of Adjustment Aerial Map February 26, 2019 E 1,000 Feet Address: 4245 Buck DrAppeal of Zoning DeterminationApplicant and Owner: Myron Smith Jr and Thomas Oliver ZBA-935 Page 1 of 2 VARIANCE REQUEST ZONING BOARD OF ADJUSTMENT FEBRUARY 26, 2019 CASE: ZBA-935 PETITIONER: Bill Clark Homes of Wilmington, LLC Edward H. Clark, Manager REQUEST: Variance from withholding of permits per New Hanover County Zoning Ordinance Section 62.2-3, Penalty – Withholding of Permits. LOCATION: 1014 Piner Road - PID: R07600-004-004-000 1301 Myrtle Gardens Drive – PID: R07600-004-002-005 ZONING: R-15, Residential District ACREAGE: 12.3 Acres PETITIONER’S REQUEST: Bill Clark Homes of Wilmington, LLC property owner is requesting a variance from a 3 year withholding of subdivision plan approval and building permits for failure to obtain a tree removal permit prior to removal of all or substantially all regulated or significant trees. BACKGROUND AND ORDINANCE CONSIDERATIONS: In October 2017, the applicant applied for a performance residential development to be known as Kaylie’s Cove, Phase 4. This project was reviewed by various agencies both internal and external to New Hanover County. On November 8, 2017, this project went before the Technical Review Committee. During this meeting, several items and comments were discussed and relayed to the applicant via a letter dated November 9, 2017. Item number 5 of this letter stated: A tree survey must be submitted illustrating the location and removal of any significant trees located on the property. Significant trees removed as the result of installing infrastructure for the development must be mitigated in accordance with county standards. The applicant moved forward with improvements on the subject site, which included tree removal. When the applicant realized that they had not provided a tree survey as required, they informed staff of this oversight. Upon conducting a site visit, staff found that all or substantially all regulated or significant trees that were onsite were cleared. As such, staff determined that that the language in Section 62.2-3 would be applicable to the subject parcels: 62.2-3: Penalty-Withholding of Permits After the date of adoption of this section, failure to obtain a tree removal permit from New Hanover County prior to removal of any regulated or significant tree or any timber harvest on property will result in the following: (1) A building permit, site plan approval or subdivision plan approval shall be denied, subject to the following: ZBA-935 Page 2 of 2 (A) a period of three (3) years after the completion of a timber harvest if the harvest results in the removal of all or substantially all regulated or significant trees from the tract; or (B) a period five (5) years after the completion of a timber harvest if the harvest results in the removal of all or substantially all of the regulated or significant trees from the tract if the harvest was a willful violation of County regulations. (2) This enforcement provision shall run with the land. Therefore, change of ownership does not alleviate the penalty for unauthorized cutting of trees. The applicant contends they should be granted the variance based on the number of trees proposed to be planted within the new phase. In the earlier phase they were required to mitigate 350 inches and they planted a total of 474 inches. To remain consistent throughout the subdivision they plan to plant 2 – 3 inch trees on each of the 21 lots. This will yield a total of 660 inches of new trees. They feel that this should provide mitigation for any significant trees removed without a permit in Phase 4 of the subdivision. In summary, the petitioner is requesting a variance from the 3 year withholding of subdivision plan approval and building permit issuance. They are proposing similar mitigation based on the assumption that these properties had similarly sized trees as in the previous phases of the development. A total of 7 significant trees were located within the right of way of the original 71 lot project. The total area for these lots equaled 28 acres. The area cleared without a tree removal permit equals 12 acres. Aerial images of the current site and the phase shows similar growth throughout the area as depicted in Exhibit A. BOARD OF ADJUSTMENT POWER AND DUTY: The Board of Adjustment has the authority to authorize variances from the terms of the Zoning Ordinance where, due to special conditions, a literal enforcement of the regulations would result in unnecessary hardship. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with the Zoning Ordinance. A concurring vote of four-fifths (4/5) of the voting members of the Board shall be necessary to grant a variance. A variance shall not be granted by the Board unless and until the following findings are made: 1. Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. 2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting 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 granting a variance. 3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. 4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. ACTION NEEDED (Choose one): 1. Motion to approve the variance request based on the findings of fact (with or without conditions) 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to deny the variance request based on specific negative findings in any of the 4 categories above. PINER GRISSOM Kaylies CovePhases I - III Kaylies CovePhase IV Exhibit A Myrtle GroveMiddle School Source: ESRI Aerial Basemap, circa 2016 ORDER TO GRANT/DENY A VARIANCE – Case ZBA-935 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on February 26, 2019 to consider application number ZBA-934, submitted by Bill Clark Homes of Wilmington, LLC, a request for a variance to use the properties located at 1014 Piner Road and 1301 Myrtle Gardens Drive in a manner not permissible under the literal terms of the ordinance and having heard all the evidence and arguments presented at the hearing, makes the following FINDINGS OF FACT and draws the following CONCLUSIONS: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the withholding of permits required per Section 62.2-3 of the New Hanover County Zoning Ordinance, that an unnecessary hardship would result/would not result. (It 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:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. 2. It is the Board’s conclusion that the hardship of which the applicant complains results/does not result from unique circumstances related to the subject property, such as location, size, or topography. (Hardships resulting 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 granting a variance.) This conclusion is based on the following FINDINGS OF FACT:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. 3. It is the Board’s conclusion that the hardship did/did not result from actions taken by the applicant or the property owner. (The act of purchasing 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. It is the Board’s conclusion that, if granted, the variance will/will not 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:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. THEREFORE, on the basis of all the foregoing, IT IS ORDERED that the application for a VARIANCE from New Hanover County Zoning Ordinance to allow a variance from the withholding of permits required per Section 62.2-3 of the New Hanover County Zoning Ordinance be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 26th day of February, 2019. ____________________________________ Raymond Bray, Chairman Attest: ____________________________________ Kenneth Vafier, Executive Secretary to the Board New Hanover County Zoning Board of Adjustment Vicinity Map February 26, 2019 ECase: ZBA-935 1,000 Feet Address: 1014 Piner Rd and 1301 Myrtle Gardens DrVariance request: Variance from withholding of permitsApplicant and Owner: Bill Clark Homes of Wilmington R-15 R-10O&I New Hanover County Zoning Board of Adjustment Zoning Map February 26, 2019 ECase: ZBA-935 1,000 Feet Address: 1014 Piner Rd and 1301 Myrtle Gardens DrVariance request: Variance from withholding of permitsApplicant and Owner: Bill Clark Homes of Wilmington PINER GRISSOM MY R T L E G R O V E Case: ZBA-935 New Hanover County Zoning Board of Adjustment Aerial Map February 26, 2019 E 1,000 Feet Address: 1014 Piner Rd and 1301 Myrtle Gardens DrVariance request: Variance from withholding of permitsApplicant and Owner: Bill Clark Homes of Wilmington ZBA-936 Page 1 of 3 VARIANCE REQUEST ZONING BOARD OF ADJUSTMENT FEBRUARY 26, 2019 CASE: ZBA-936 PETITIONER: Cameron Management, on behalf of Dry Pond Partners, LLC, property owner REQUEST: 5’ variance from the 40’ structure height maximum per Section 72-43(11) of the Zoning Ordinance for one structure within a development proposal LOCATION: 4429 S College Road PID: R07100-004-004-000 ZONING: R-15, Residential District. The applicant proposes rezoning the entire property to (CUD) R-10 in order to develop a portion of a mixed-use project ACREAGE: Portion of a 64.28-acre tract PETITIONER’S REQUEST: Cameron Management, applicant, on behalf of Dry Pond Partners, LLC, property owner, is requesting a 5’ variance from the 40’ structure height maximum required per Section 72-43(11) of the Zoning Ordinance. The variance request is for one structure in a larger proposed development shown as “Building A” on Exhibit A-1 provided by the applicant. BACKGROUND AND ORDINANCE CONSIDERATIONS: Whiskey Branch is proposed as a High Density Development project under the Zoning Ordinance, and a Conditional Use District application to rezone the property from R-15 to (CUD) R-10 is proposed for consideration before the New Hanover County Planning Board at the April 4, 2019 meeting. Prior to the Planning Board and Board of Commissioners’ consideration of the request, a conceptual site plan for the project was reviewed by the County’s Technical Review Committee on February 6, 2019. Per the submitted Conditional Use District application, “Building A” is proposed as a multi-family building consisting of 60 units with 126,000 square feet of gross floor area. The overall project consists of 324 total apartment units in 12 buildings, with a clubhouse, pool, and other associated amenities. The variance request is only applicable to “Building A”. Section 72-43 of the Zoning Ordinance contains requirements for High Density Development projects, including subsection (11) that creates maximum building height allowances: Maximum allowable height for structures shall be 40 feet. However, the maximum allowable height for piling supported primary structures which are located in "Coastal High Hazard Areas, V-Zones" and/or Ocean Hazard Areas as defined by the Coastal Resources Commission shall be 44 feet. (10/5/92) Because the subject property is not located in a coastal high hazard area or ocean hazard area, the building heights are limited to 40’ in the proposed development. ZBA-936 Page 2 of 3 Figure 1: Applicant’s exhibit A-1 showing the structure subject to the variance request. The calculation of a building height is described in the definition for Building Height in the Zoning Ordinance: Building Height - The vertical distance measured from the average elevation of the proposed finished grade at the front of the structure to the mean level of the slope of the main roof. Although the building heights for Whiskey Branch are limited to 40’ per Section 72-43(11) of the Zoning Ordinance, structures may exceed 40’ in other situations as prescribed in the county’s zoning regulations. Structures in coastal high hazard areas or V-zones as designated by FEMA, or in Ocean Hazard Areas as defined by the NC Coastal Resources Commission, may reach up to 44’. Building heights in the Office and Institutional zoning district are limited to 40’. In the B-2, Highway Business, and I-1, Light Industrial zoning districts, buildings are limited to 40’, however, buildings in areas located within the Employment Center, Community Mixed Use, Urban Mixed Use, or Commerce Zone place types in the county’s Comprehensive Land Use Plan and fronting along a collector, minor arterial, or principal arterial road may exceed 40’ in height so long as certain floor area ratio criteria are met per Section 52.2-4(4) of the Zoning Ordinance. Additionally, the zoning ordinance does not limit building heights in the I-2, Heavy Industrial zoning district. The applicant contends that a variance is necessary due to the presence of certain features related to the site and proposed development such as parcel shape, preservation of open space, commercial and stormwater management areas, Comprehensive Plan place type, and building design. These factors are detailed further in the application narrative. In summary, the applicant is requesting a 5’ variance from the 40’ structure height maximum per Section 72- 43(11) of the Zoning Ordinance for one structure within a larger development proposal, which will be considered at future Planning Board and Board of Commissioners meetings. BOARD OF ADJUSTMENT POWER AND DUTY: The Board of Adjustment has the authority to authorize variances from the terms of the Zoning Ordinance where, due to special conditions, a literal enforcement of the regulations would result in unnecessary hardship. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with the ZBA-936 Page 3 of 3 Zoning Ordinance. A concurring vote of four-fifths (4/5) of the voting members of the Board shall be necessary to grant a variance. A variance shall not be granted by the Board unless and until the following findings are made: 1. Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. 2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting 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 granting a variance. 3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. 4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. ACTION NEEDED (Choose one): 1. Motion to approve the variance request based on the findings of fact (with or without conditions) 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to deny the variance request based on specific negative findings in any of the 4 categories above. ORDER TO GRANT/DENY A VARIANCE – Case ZBA-936 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on February 26, 2019 to consider application number ZBA-936, submitted by Cameron Management, on behalf of Dry Pond Partners, LLC, a request for a variance to use the property located at 4429 S College Road in a manner not permissible under the literal terms of the ordinance and having heard all the evidence and arguments presented at the hearing, makes the following FINDINGS OF FACT and draws the following CONCLUSIONS: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 40’ maximum height requirement for a high-density development required per Section 72-43(11) of the New Hanover County Zoning Ordinance, that an unnecessary hardship would result/would not result. (It 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:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. 2. It is the Board’s conclusion that the hardship of which the applicant complains results/does not result from unique circumstances related to the subject property, such as location, size, or topography. (Hardships resulting 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 granting a variance.) This conclusion is based on the following FINDINGS OF FACT:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. 3. It is the Board’s conclusion that the hardship did/did not result from actions taken by the applicant or the property owner. (The act of purchasing 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. It is the Board’s conclusion that, if granted, the variance will/will not 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:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. THEREFORE, on the basis of all the foregoing, IT IS ORDERED that the application for a VARIANCE from New Hanover County Zoning Ordinance to allow a 5’ variance from the 40’ maximum height requirement for a high-density development required per Section 72-43(11) of the New Hanover County Zoning Ordinance be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 26th day of February, 2019. ____________________________________ Raymond Bray, Chairman Attest: ____________________________________ Kenneth Vafier, Executive Secretary to the Board Case: ZBA-936 New Hanover County Zoning Board of Adjustment Vicinity Map February 26, 2019 E 1,000 Feet Address: 4429 S College RdVariance request: Variance from 40' maximum building heightApplicant and Owner: Cameron Management and Dry Pond Partners R-15 CITYB-1 Case: ZBA-936Address: 4429 S College RdVariance request: Variance from 40' maximum building heightApplicant and Owner: Cameron Management and Dry Pond Partners New Hanover County Zoning Board of Adjustment Zoning Map February 26, 2019 E 1,000 Feet CO L L E G E CO L L E G E Case: ZBA-936 New Hanover County Zoning Board of Adjustment Aerial Map February 26, 2019 E 1,000 Feet Address: 4429 S College RdVariance request: Variance from 40' maximum building heightApplicant and Owner: Cameron Management and Dry Pond Partners