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6.23.2020 ZBA Agenda Packet NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON, NORTH CAROLINA 28403 MEMBERS OF THE BOARD Cameron Moore, Chairman Mark Nabell, Vice-Chair Hank Adams Kristin Freeman Raymond Bray BOARD ALTERNATES Pete DeVita Michael Keenan, Sr. Richard Kern Wayne Clark, Director of Planning & Land Use Sharon Huffman, Deputy County Attorney June 23, 2020, 5:30 PM I. Call Meeting to Order (Chairman Cameron Moore) II. Approval of February Minutes (currently in draft status) February Member Attendees: Cameron Moore, Mark Nabell, Ray Bray, Kristin Freeman, Michael Keenan III. Old Business Case ZBA-948 –Susan Moore Skinner and Emily M. Axelrod Trustees, applicants and property owners, are requesting a variance from the withholding of permits penalty per Section 5.3.3 B of the Unified Development Ordinance. The property is located at 4525 Castle Hayne Road. (This item was continued from the February 25, 2020 meeting.) IV. Regular Items of Business Case ZBA-949 - Gregory Alan Heafner, PA, applicant, on behalf of Gary and Lisa Hooker, property owners, is requesting a reasonable accommodation under the Federal Fair Housing Act per Section 10.3.13 of the Unified Development Ordinance to allow up to 8 residents in a group home located at 6601 Newbury Way. VI. Other Business VII. Adjourn 1 MINUTES ZONING BOARD OF ADJUSTMENT DRAFT 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, February 25, 2020. Members Present Members Absent Cameron Moore, Chairman Hank Adams Mark Nabell, Vice-Chair Pete DeVita Michael Keenan Richard Kern Kristin Freeman Raymond Bray Ex Officio Members Present Ken Vafier, Executive Secretary Sharon Huffman, Deputy County Attorney Linda Painter, Zoning Official Denise Brown, Clerk The meeting was called to order at 5:30 P.M. by the Chairman, Mr. Cameron Moore. Mr. Moore explained that the Zoning Board is a quasi-judicial board appointed by the Board of Commissioners to consider zoning 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 Unified Development Ordinance. The appellants have thirty days in which to appeal any decision made by the Board to Superior Court. FIRST ORDER OF BUSINESS Following a motion by Vice-Chair Nabell and seconded by Ms. Kristin Freeman, the minutes from the January 28, 2020 meeting were unanimously approved. The Chairman then swore in County staff, Ken Vafier and Linda Painter. Additional speakers Jeff Keeter, Daniel Brawley, Susan Moore Skinner, Pollyanna Likins, and Stephanie Galanis were sworn in. CASE ZBA-948 Daniel Lee Brawley and Jeffrey P. Keeter, applicants, on behalf of Susan Moore Skinner and Emily M. Axelrod Trustees, property owners, are requesting a variance from the New Hanover County Unified Development Ordinance Section 5.3.3 B 3 Penalty, Withholding of Permits. The property is located at 4525 Castle Hayne Road, Castle Hayne, NC. The Zoning classification for the subject site is RA, Rural Agricultural District. STAFF OVERVIEW: Ms. Painter gave the staff presentation, stating that the applicant is requesting a variance from the imposition of a 3-year withholding of development approvals for failure to obtain a tree-removal permit prior to a timber 2 harvest as prescribed in the New Hanover County Unified Development Ordinance. The subject site is located on Castle Hayne Road in the north- central portion of the county, approximately 1.5 miles north of the interchange of Castle Hayne Road with I-140. Ms. Painter stated that on July 31, 2019, county staff received inquiries pertaining to 5 separate sites in the Castle Hayne area concerning the removal of trees, upon which all were investigated to ensure compliance with the county’s tree retention standards. The Zoning Ordinance language in effect at the time of the clearing prohibited tree removal without a permit or exemption, and set forth a penalty withholding certain development approvals in the event that all or substantially all regulated trees are cleared from a site without approval. Section 62.1-9, Tree Removal, provided language and requirements. In addition, Section 62.2-3, Penalty-Withholding of Permits, provided language on tree removal penalty. On February 3, 2020, the Board of Commissioners adopted a Unified Development Ordinance, which consolidated all land use regulations into one document in addition to reorganizing and reformatting the language. While there are some minor changes to the tree clearing and retention language, the content, process, definitions, and penalties for unauthorized removal remain the same. Ms. Painter stated a site visit was conducted to the subject property on August 1, 2019. Staff did find that a majority of the tract had been cleared, and no evidence was presented to indicate that there were no regulated trees on site. After searching permit records, it was determined that no tree removal permit or exemption had been issued for this work. Staff determined that “all or substantially all” of the regulated trees on the site had been cleared. Ms. Painter stated a letter was sent to the property owners on August 9, 2019, citing the applicable sections of the New Hanover County Zoning Ordinance related to tree removal and advising them of the penalty. Upon receipt of the letter, property owner contacted the staff and advised that the property had been historically been used for forestry, and that the owners were unaware of the need to obtain a tree removal permit or an approved forestry management plan in order to qualify for the tree removal permit exemption. Ms. Painter stated that the property owner’s initial intent was to harvest the timber and replant in the fall. A site visit on February 12, 2020 confirmed that the site was replanted with seedling pines, however, a forestry management plan had not been conducted or submitted to staff prior to the removal of the trees. The owners were contacted and notified of the imposition of the 3-year withholding of development approvals, starting from the date of the initial letter. Ms. Painter concluded the owners have been offered a purchase of the property however, the 3-year withholding applies to the property regardless of a change in ownership, as stated in New Hanover County Unified Development Ordinance, Section 5.3.3 B. Thus, the applicant has applied for a variance to request relief of the penalty mitigation of a tree harvest without obtaining a permit. Mr. Vafier stated that in this instance, there is no way to determine the cost or how many trees were removed. He mentioned with the tree removal, the applicant would be responsible in replacing double the amount of caliper in inches removed or payment in lieu of the harvest. The applicant stated historically the family had harvested trees, but no evidence of transaction was presented. Therefore, a penalty would be imposed due to lack of obtaining a permit. This penalty has been in the ordinance effective 2010. Mr. Bray inquired if a Forestry Management Plan was presented to the county prior to the harvest. 3 Mr. Jeffery P. Keeter appeared representing the applicants, Ms. Susan Moore Skinner and Ms. Emily M. Axelrod Trustees, property owners. The property was obtained by the applicant’s grandfather in 1924. Mr. Keeter stated his clients obtained a tree company to remove the trees which they stated were diseased and significantly damaged due to Hurricane Florence. Mr. Keeter stated the logging company provided an inventory of a number of the trees were in bad condition. Mr. Keeter stated a logger in St. Paul was recommended and contacted to harvest the trees. Mr. Keeter stated the applicants were not aware of the county’s requirement to obtain a tree removal permit. Mr. Keeter stated the trees were removed in May/June of 2019. Mr. Keeter stated the initial harvest was done in 2019 and awarded the applicants $11,000 in funds. In addition, the applicant replanted over 8,000 trees at the subject site in December 2019. Mr. Keeter stated the logger’s report stated multiple trees were damaged due to Hurricane Florence. Mr. Keeter stated the applicants received notification from county staff regarding the tree harvest having no record of a permit. The applicants contacted county staff about the actions. The applicant’s replanted trees after the harvest. Mr. Keeter stated the applicants were approached by a potential buyer to purchase the subject site and they are seeking relief from the county penalty for a tree harvest without obtaining a tree permit to move forward with the sale of the site. Mr. Bray asked when it was decided to harvest the trees and who referred the applicant to the logging company. He inquired as to a forestry management plan obtained by the applicant also who informed the applicant some of trees were damaged. Mr. Bray inquired if a consultant or a registered logger was contacted. He asked about a forestry contract. Ms. Susan Moore Skinner stated she and her sister agreed to harvest the trees with no intention of selling the property. Ms. Skinner stated her sister made most of the arrangements to have the land cleared. They received a logging referral from a friend of the family whom had previously utilized the logging company for services. Ms. Skinner stated she did not receive a forestry management plan for the harvest nor was she told a permit was required to harvest the property. Ms. Skinner stated she and her sister relied on the logging representative to handle things within regulation as they came highly referred by a family friend. Ms. Skinner stated she is not aware that her sister, Ms. Emily M. Axelrod, has received a forestry plan. She stated she did not sign or received a forestry plan. Mr. Daniel Lee Brawley stated that the subject site was not initially listed for sale. However, a realtor approached the applicants with a proposal to sell the subject site. Mr. Brawley stated the penalty would be a hardship to the applicants as it would not present the potential sale of the subject site to move forward. Mr. Brawley implore the board to waive or modify the penalty to some extent for the applicants to sell their property to benefit their family. Mr. Brawley stated the sales of the property would benefit the community with the potential of new trailer sales and services center at the subject site. The potential sale is proposing a retail trailer sales facility upon an approved rezoning to the district. Mr. Brawley stated the applicants were not aware of permit requirements. Mr. Brawley stated the ordinance that was in effect at the time of violation differs from the ordinance requirements for current tree harvest. Mr. Brawley stated the county and the board has the authority to impose a lesser penalty and have digression to alter the tree penalty. Mr. Brawley stated the intent was to remove trees and replant. 4 Mr. Brawley stated the pending sale will not go through if relief is not given for the penalty. Mr. Brawley stated the board may impose a penalty however, they present today requesting relief in granting the variance. Mr. Brawley stated a contract for potential sale of the subject site was signed on October 26, 2019 by the applicants. Mr. Bray asked if the property had been previously appraised. Mr. Bray asked what type of trees were replanted and what the financial offset was of the re-plantings being assisted. Mr. Bray asked if the logger was present. Ms. Skinner stated in the past her mother had harvested trees at the subject site. Ms. Skinner stated she trusted and relied on the hired tree logger’s expertise as to what was required for the harvest and to relay the condition of the trees. Ms. Freeman asked if the applicants had planned to sell the property or if there was a contract prior to the tree harvest. Ms. Skinner stated her and her sister had no intent on selling the property. She stated the area lacks water and sewer services. Trees were planted for a future harvest. OPPOSITION & PUBLIC COMMENTS: Ms. Pollyanna Likins - (4600 Castle Hayne Road) stated she resides across the street from the subject site and she is not opposing the applicant’s sales of the subject site. Ms. Likins stated the property is not attractive to the community due to the tree harvest. She also stated the logger should’ve been aware a permit was required prior to harvest. Ms. Likins stated she would implore the owners to clean up the site and remove the dead trees on the ground. Ms. Likins stated during heavy rains the water from across the street flows heavily into her yard. Ms. Likins stated the property was harvest some years ago and that action has contributed to the drainage issue on her property. The water-flow from the subject site has become a problematic drainage issue. Ms. Likins stated the water should flow to nearby Prince George’s Creek. She implores this matter be addressed by the applicant prior to potential sales of the site. Ms. Stephanie Galanis-(4628 Castle Hayne Road) stated she lives across the street from the property and is not opposed to the property sale however she does not want to see the property constructed with multiple homes. Ms. Galanis stated there were plenty of beautiful tress on the subject site and would implore the applicant to think of the community as it pertains to the sale with the potential buyer and if future plans of this site would benefit the neighbors. Ms. Galanis stated she is not in favor of additional homes or a storage business constructed on the site. REBUTTAL: Mr. Brawley stated, in responding to the community concerns, request that the Board waive the penalty; that once the property is sold and building permits are obtained some of the mentioned neighbor concerns could be addressed. Mr. Brawley stated as it stands now it would be 3 years before additional upgrades could be improved or implemented at the site. PUBLIC HEARING CLOSED. 5 BOARD DISCUSSION Chairman Moore asked for clarification on who would submit the letter of exemption for timber harvest. Mr. Vafier stated the applicant would provide information to the staff regarding harvest plans and staff could grant an exemption based on the applicant’s proposal. Ms. Painter added that the applicant would be required to present a forestry management plan by a licensed forester that included samples of the trees removed and proposal of re-plantings. The plan would be on-going. Mr. Vafier stated a forestry management plan, once presented, must be fulfilled by the applicant or future owners of the subject site. Mr. Vafier stated documentation would be required to deviate from the forestry management plan for potential further development. Mr. Vafier stated staff would work with the applicant in assessing the forestry management plan of the site in order to grant relief of the terms of the plan by Forestry Commission. Mr. Vafier mentioned a forestry management plan typically documents how the tract will regenerate trees in the future prior to harvesting for commercial standards. Ms. Freeman asked how long does the management plan take before development could occur. Mr. Vafier stated the plan would be in effect as stated in the plan itself. The ordinance does not specify relief from forestry plans once entered. Chairman Moore asked how long a forestry management plan lasts. Mr. Bray stated the plan can last as long as the initial plantings up to future harvesting of the site. Mr. Bray stated the applicant’s logger should have advised the applicants to obtain a permit. Mr. Bray stated a registered forester would be aware of regulations in tree harvest permitting. Chairman Moore asked as to the Zoning Ordinance language versus the Unified Development Ordinance language. Mr. Vafier stated there are two sections that reference penalty in tree permitting penalty. Mr. Vafier stated the staff could not grant relief of penalty, the board is empowered to make permit relief to applicants on the zoning ordinance requirements and or revisions. Ms. Huffman, Deputy Attorney stated to board members they bear the responsibility of deciding to grant or decline the applicant’s variance request from Section 5.3.3 B of the Unified Development Ordinance which states a plan approval shall be denied due to lack of obtaining a tree permit for the harvest. The applicant is requesting the board deviate in language from current section penalty. Ms. Huffman stated the applicant is asking if a building permit can be issued and that the 3-year penalty would not apply. Ms. Huffman stated if the Board so choses they could decide a number of conditions such as duration of penalty and or some type of monetary agreement. Ms. Huffman stated the Board is required to obtain 4/5 of the board members to agree to these types of terms. 6 Ms. Freeman asked what type of trees were removed. Mr. Vafier stated staff is not able to determine what species of trees were removed. Mr. Bray asked if the meeting could be tabled and ask the applicant to provide a forestry management plan. Mr. Keenan stated with the proposed use, rental sales equipment of the subject site by a possible sale what would the potential buyer be required to obtained for future development of the site. Mr. Vafier stated a text amendment or rezoning would be required to the subject site for commercial use. The penalty became effective on August 9, 2019 and runs for a 3-year period would transfer with owner of the site. Mr. Vafier stated that concerns raised regarding drainage could be referred to partner agencies to address. Mr. Nabell stated the applicant’s present with a hardship due to the fact they relied on the logging company expertise. Mr. Keenan and Ms. Freeman stated the applicant was not aware of permit requirements. Mr. Bray stated the actions were taken by the property owner and asked the applicant if they could obtain a forestry management plan at a later date. Mr. Keeter stated there is no advantage to the applicants in obtaining a forestry management plan. The applicant is requesting a variance from the 3 year withholding of permits due to lack of obtaining tree removal permit. Mr. Keenan made a motion to grant the variance and reduce the 3-year penalty to a 12-month penalty effective from August 9, 2019. Mr. Keenan stated without relief the applicant will suffer financial loss in a potential sale of the property. Mr. Keenan stated the applicant presents unique circumstances due to lack of knowledge of permit regulations in tree harvest. Mr. Keenan stated the applicant’s hardship is they contacted a logging firm from out of town and a forestry management plan was not submitted. In addition, the land was previously harvest without a permit. Ms. Huffman asked the board to address the motion submitted by Mr. Keenan. Ms. Huffman stated conditions should be reasonably related to the variance request presented. Ms. Freeman stated conditions should apply if the variance is granted. Chairman Moore stated a potential condition should apply that the applicant provide staff a management report of trees that was replanted. Ms. Freeman asked what would mitigation conditions consist of. Mr. Vafier stated mitigation is based on what was removed per the tree inventory. The applicant did not supply that information to staff prior to the harvest. Mr. Vafier stated conditions can be applied to the granted variance consisting of mitigation if the board agrees. The Zoning staff would need to be able to effectively regulate any condition implied per the ordinance. 7 Mr. Keenan proposed a condition to the initial motion to approve the variance which is to clean up the harvest area (100 yards along Castle Hayne Road) and any private drainage ditches within 6 months by the applicant. Mr. Keenan referred to the storm water run-off complaints by the adjacent neighbors. Mr. Keenan stated this motion to include reduce the withholding of permits from 3 years to 12 months. The motion was seconded by Chairman Moore. Vice-Chair Nabell agreed to the motion. Ms. Freeman and Mr. Bray oppose to approve the motion. The variance request with conditions was not approved as it did not receive 4/5 majority. Ms. Freeman stated she would like to have additional information regarding mitigation options for approval. Ms. Huffman stated the board has the option to consider a motion to reconsider if they choose. Mr. Brawley asked the board to table discussions to next scheduled meeting to confer with county staff propose mitigation options. Mr. Keenan made a motion to reconsider the case hearing to next scheduled meeting. Mr. Keenan motion to strike the initial variance approval motion. Chairman Moore second the motion. All ayes. Mr. Brawley requested to table the matter for 30 days and come back to the Board with some proposed mitigation. Chairman Moore made a motion to table discussions for 30 days as the applicant confers with staff. Vice-Chair Nabell second the motion. All ayes. There being no further business before the Board, it was properly moved by Chairman Moore and seconded by Vice-Chair Nabell to adjourn the meeting. All ayes. Please note the minutes are not a verbatim of the record of the proceedings. _____________________________________ _________________________________ Executive Secretary Chairman Date ________________________________ ZBA-948 Page 1 of 4 VARIANCE REQUEST ZONING BOARD OF ADJUSTMENT June 23, 2020 CASE: ZBA-948 PETITIONER: Susan Moore Skinner and Emily M. Axelrod Trustees, applicants and property owners. REQUEST: Variance from the withholding of approvals penalty for unauthorized removal of regulated trees per Section 5.3.3 B of the New Hanover County Unified Development Ordinance. LOCATION: 4525 Castle Hayne Road PID: R01700-002-003-000 ZONING: RA, Rural Agricultural District ACREAGE: 19.12 HISTORY OF REQUEST: At the February 24 Board of Adjustment meeting, after conducting a quasi-judicial hearing on the request for a variance from the withholding of permits penalty for unauthorized removal of regulated trees, this item was ultimately continued by the Board in order for the applicant to propose mitigation for the unauthorized tree clearing. The applicant has provided documentation to staff detailing actions that have been performed in order to provide mitigation, which include the following:  A request to reduce the 3-year penalty to one year, to conclude on August 9, 2020;  The inclusion of approximately 8,000 seedling pines which were replanted onsite in February 2020;  The intention to provide additional plantings along Castle Hayne Road;  The provision of a written a forestry plan for the property by a certified N.C. forester; and  Examination of the drainage ditch on March 17th, 2020 where it was observed that the ditch was draining properly. The supporting documentation provided by the applicant for the proposed mitigation methods is included in the agenda packet subsequent to this staff report. BACKGROUND AND ORDINANCE CONSIDERATIONS: The subject parcel is located on Castle Hayne Road in the north-central portion of the county, approximately 1.5 miles north of the interchange of Castle Hayne Road with I-140. On July 31, 2019, county staff received inquiries pertaining to 5 separate sites in the Castle Hayne area concerning the removal of trees, upon which all were investigated to ensure compliance with the county’s tree retention standards. The Zoning Ordinance language in effect at the time prohibited tree removal without a permit or exemption, and set forth a penalty withholding certain development approvals in the event that all or substantially all regulated trees are cleared from a site without approval: ZBA-948 Page 2 of 4 62.1-9: Tree Removal (1) Permits Required - No person, directly or indirectly, shall remove any regulated tree from public or private property without first obtaining a tree removal permit from the County Zoning Administrator. A tree removal permit is required before any clearing, grading or other authorizations may be issued including soil and sedimentation control permits and building permits. An approved tree removal permit for new construction shall apply to the entire site. A tree removal permit may be either attached to the submitted site plan or the site plan may be clearly marked for either approval or denial. (Paragraphs 2, 3 and 4 are procedure, waivers and permit criteria and have not been included). (5) Failure to obtain a tree removal permit prior to any timber harvest may result in a three or five- year delay in obtaining a building permit or approval of any development or subdivision plan. (2/06/06) 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: (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. On February 3, 2020, the Board of Commissioners adopted a Unified Development Ordinance, which consolidated all land use regulations into one document in addition to reorganizing and reformatting the language. While there are some minor changes to the tree clearing and retention language, the content, process, definitions, and penalties for unauthorized removal remain the same: 5.3 Tree Retention 5.3.3. FORESTRY AND PROPERTY CLEARING A. A letter of exemption for timber harvest or other exempted forestry activity must be issued by the Planning Director prior to the removal of any regulated or significant tree based on proof of exemption in accordance with NCGS 153A-452. ZBA-948 Page 3 of 4 B. While exempted forestry activities are not subject to the tree retention requirements of this section, failure to obtain a tree removal permit prior to any timber harvest or other property clearing activity will result in the denial of a building permit, site plan approval, or subdivision approval for a period of three years, regardless of any change in ownership, if the harvest results in the removal of all or substantially all regulated or significant trees from the tract. The denial period shall be increased to five years in situations where removal of all or substantially all regulated trees was a willful violation of County regulations. 5.3.4. TREE RETENTION A. The provisions of this section protect the following regulated trees: 1. Protected Trees, which are hardwood trees at least eight inches (8”) diameter at breast height (DBH), all conifer trees at least 12” DBH, and all dogwoods and American hollies, larger than four inches (4”) DBH; 2. Significant Trees, which are hardwood and conifer trees at least 24” DBH and dogwoods, American hollies, and flowering trees at least eight inches (8”) DBH. 3. Specimen Trees, which are any live oak trees at least 36” DBH. Upon conducting a site visit to the subject property on August 1, 2019, staff did find that a majority of the tract had been cleared, and no evidence was presented to indicate that there were no regulated trees on site. After searching permit records, it was determined that no tree removal permit or exemption had been issued for this work. Therefore, staff determined that “all or substantially all” of the regulated trees on the site had been cleared. A letter was sent to the property owners on August 9, 2019, citing the applicable sections of the New Hanover County Zoning Ordinance related to tree removal and advising them of the penalty. Upon receipt of the letter, a property owner reached out to staff and advised that the property had historically been used for forestry, and that the owners were unaware of the need for a tree removal permit or an approved forestry management plan in order to qualify for the tree removal permit exemption. Initially, it was the property owners’ intent to harvest the timber and re-plant in the fall when planting conditions would be optimal for the seedlings to take root and grow. A site visit on February 12, 2020 confirmed that the site was replanted with seedling pines, however, a forestry management plan had not been conducted or submitted to staff prior to the removal of the trees. Thus, the owners were notified of the imposition of the 3-year withholding of development approvals, starting from the date of the initial letter. Subsequent to being informed of this penalty, the owners decided to attempt a sale of the property. However, the 3-year withholding applies to the property regardless of a change in ownership, as stated in Section 5.3.3.B of the Unified Development Ordinance. As a result, the owners have applied for a variance to request relief of the penalty for reasons detailed within their application narrative. BOARD OF ADJUSTMENT POWER AND DUTY: The Board of Adjustment has the authority to authorize variances from the terms of the Unified Development 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 Unified Development Ordinance. A concurring vote of four-fifths (4/5) of the voting members of the ZBA-948 Page 4 of 4 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. NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON, NORTH CAROLINA 28403 MEMBERS OF THE BOARD Raymond Bray, Chairman Henry “Hank” Adams, Vice-Chair Kristin Freeman Cameron Moore Mark Nabell BOARD ALTERNATES Pete DeVita Richard Kern Michael Keenan, Sr. Wayne Clark, Director of Planning & Land Use Sharon Huffman, Deputy County Attorney ORDER TO GRANT/DENY A VARIANCE – Case ZBA-948 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on June 23, 2020 to consider application number ZBA-948, submitted by Susan Moore Skinner and Emily M. Axelrod Trustees, applicants and property owners, a request for a variance to use the properties located at 4525 Castle Hayne 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 3-year withholding of development approvals in Section 5.3.3 B of the New Hanover County Unified Development 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 the 3-year withholding of development approvals in Section 5.3.3 B of the New Hanover County Zoning Ordinance be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 23rd day of June, 2020. ____________________________________ Cameron Moore, Chairman Attest: ____________________________________ Kenneth Vafier, Executive Secretary to the Board Request for a Property Variance March 24, 2020 Emily M. Axelrod and Susan M. Skinner are requesting a variance lasting one year from August 9, 2019, when we were notified we were in violation of the tree ordinance requirement on 4525 Castle Hayne Road in Castle Hayne, NC. 28429 The property has been in our family since 1924. Our family has paid taxes and has been good stewards of the property over the past 96 years. On February 24, 2020, the Board of Adjustment was presented with information about the clearing of land and the planting of 8000 trees on the land. Due to lack of knowledge of a tree ordinance, the logger from another county did not request a permit. The owners are in their 70’s, have health issues, and live out of town. They trusted the company to handle all business regarding the cutting of the trees and the replanting of the trees. The Board of Adjustment has requested that we mitigate how to solve this issue:  A tree barrier was cut down that prevented a view of the property from the highway. We are offering to replant a barrier of trees across the front of the property.  8000 trees have been replanted on the property.  A certified N.C. forester has walked the property and written a forestry plan for the property.  There was a complaint about a drainage ditch in front of the property. This ditch was checked out during a rainstorm on March 17th, 2020 at 9:30am. At that time, the ditch was draining properly. ZBA-949 Page 1 of 4 REASONABLE ACCOMMODATION REQUEST ZONING BOARD OF ADJUSTMENT June 23, 2020 CASE: ZBA-949 PETITIONER: Gregory Alan Heafner, PA, applicant, on behalf of Gary and Lisa Hooker, property owners. REQUEST: Reasonable accommodation request under the Federal Fair Housing Act per Section 10.3.13 of the Unified Development Ordinance to allow up to 8 disabled persons residing together in a group home. LOCATION: 6601 Newbury Way PID: R03515-006-006-000 ZONING: R-15, Residential District BACKGROUND AND ORDINANCE CONSIDERATIONS: The applicant intends to permit a group home run by the Oxford House at the subject property. The New Hanover County Unified Development Ordinance allows up to six disabled persons to reside in a group home by-right in the R-15 zoning district per the Principal Use Table in Section 4.2.1: Additional standards for group homes are detailed in Section 4.3.2.B.3, as well as a process described under section 10.3.13 by which a group home provider may petition for a reasonable accommodation under the Federal Fair Housing Act to vary any of the provisions outlined in Section 4.3.2 B, including the number of residents, parking allowance, or distance requirement. Section 10.3.13 also details the eligibility requirements for residents of a Group Home. Group Home – A home in which more than three unrelated persons with a disability, as defined in the U.S. Fair Housing Act, 42 U.S.C. 3601 et seq., live together as a self-supporting and self-sufficient household unit. The Fair Housing Act defines persons with a disability to mean those individuals with mental or physical impairments that substantially limit one or more major life activities. The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness. ZBA-949 Page 2 of 4 4.3.2. RESIDENTIAL USES B. Group Living 3. Group Home Group homes shall comply with the following standards: a. Group homes shall be limited to six disabled persons living together as a self-supporting and self- sufficient household unit. b. No group home shall be occupied or operated without zoning approval. 1. Group homes that are exempt from licensure pursuant to NCGS §122C-22 must recertify their exemption status annually; and 2. Group homes for special needs persons must recertify qualification of all residents as special needs persons annually. c. Parking shall be provided in accordance with Section 5.1: Parking and Loading. d. Group homes shall not be located closer than 2,000 feet to any other existing group home, measured by a straight line from the nearest property lines, irrespective of jurisdictional boundaries. The distance shall be reduced by the right-of-way of a major thoroughfare exceeding 100 feet, major topographical features such as a major watercourse, or by major nonresidential or public uses such as a park, school, or religious institution. e. Reasonable accommodations shall be provided in accordance with Section 10.3.13, Reasonable Accommodation. The Zoning Board of Adjustment is authorized to grant requests for reasonable accommodation after a public hearing and finding that the request meets the criteria below, particularly if it is found to be both “reasonable” and “necessary:” 10.3.13. REASONABLE ACCOMMODATION A. Applicability 1. General This section provides a procedure for reasonable accommodation of eligible persons in cases where the strict application of the standards of this Ordinance would deprive them of their right to equal opportunity to use a dwelling under the federal Fair Housing Act. 2. Eligible Persons a. An eligible person is a person who meets the definition of a disabled or handicapped person under federal law. b. A person recovering from substance abuse is considered a person with a disability or handicap provided they are not currently engaging in the illegal use of controlled substances. (section B discusses the Reasonable Accommodation application and review procedures) ZBA-949 Page 3 of 4 C. Reasonable Accommodation Review Standards 1. A reasonable accommodation application shall be approved on a finding the proposed accommodation: a. Will be used by an individual or individuals with a disability or handicap protected under federal law; b. Is the minimum needed to provide accommodation; and c. Is reasonable and necessary. 2. For the purposes of this section, an accommodation is reasonable if it would not undermine the legitimate purposes of this Ordinance, it does not constitute a substantial alteration of this Ordinance or other County standard, and it will not impose significant financial and administrative burdens upon the County. 3. For the purposes of this section, an accommodation is necessary if it would provide direct or meaningful therapeutic amelioration of the effects of the particular disability or handicap, and would afford handicapped or disabled persons equal opportunity to use housing in residential districts in the County. The specific request is to allow up to 8 disabled persons instead of up to 6 disabled persons to reside in a proposed group home at 6601 Newbury Way. According to New Hanover County tax records, the home lies on a 0.35-acre parcel and contains 3,112 square feet of living area. A copy of the property record card is included as an addendum to this staff report. Included with the petitioner’s application is a statement of justification for the special exception request, as well as the Oxford House Manual. BOARD OF ADJUSTMENT POWER AND DUTY: The Board of Adjustment is authorized to grant reasonable accommodations for the special circumstances as set forth in 10.3.13 of the New Hanover County Unified Development Ordinance to allow for reasonable accommodation under the Federal Fair Housing Act. The Board of Adjustment shall grant a request for reasonable accommodation under the Federal Fair Housing Act if the Board finds by the greater weight of the evidence that the proposed special exception will be used by an individual or individuals with a disability or handicap protected under federal law, is the minimum needed to provide accommodation, and is both “reasonable” and “necessary.” 1. "Reasonable" - An accommodation will be determined to be reasonable if it would not undermine the legitimate purposes of this Ordinance, it does not constitute a substantial alteration of this Ordinance or other County standard, and it will not impose significant financial and administrative burdens upon the County; and 2. "Necessary" - An accommodation will be determined to be necessary if it would provide direct or meaningful therapeutic amelioration of the effects of the particular disability or handicap, and would afford handicapped or disabled persons equal opportunity to use housing in residential districts in the County. ZBA-949 Page 4 of 4 ACTION NEEDED (Choose one): 1. Motion to approve the special exception request based on the findings of fact (with or without recommended conditions) 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to deny the special exception request based on specific negative findings in either of the two categories above. NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON, NORTH CAROLINA 28403 MEMBERS OF THE BOARD Raymond Bray, Chairman Henry “Hank” Adams, Vice-Chair Kristin Freeman Cameron Moore Mark Nabell BOARD ALTERNATES Pete DeVita Richard Kern Michael Keenan, Sr. Wayne Clark, Director of Planning & Land Use Sharon Huffman, Deputy County Attorney ORDER TO GRANT/DENY A REASONABLE ACCOMMODATION REQUEST – Case ZBA-949 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on June 23, 2020 to consider application number ZBA-949, submitted by Gregory Alan Heafner, PA, applicant, on behalf of Gary and Lisa Hooker, property owners, a request for reasonable accommodation under the Federal Fair Housing Act to allow up to eight disabled persons to reside together in a group home located at 6601 Newbury Way, 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 the request to deviate to eight from the limit of six disabled persons living together in a group home at 6601 Newbury Way is / is not reasonable. Note: an accommodation will be determined to be reasonable accommodation if it would not undermine the legitimate purposes of this Ordinance, it does not constitute a substantial alteration of this Ordinance or other County standard, and it will not impose significant financial and administrative burdens upon the County. This conclusion is based on the following FINDINGS OF FACT:  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________.  _______________________________________________________________________. 2. It is the Board’s conclusion that the request to deviate to eight from the limit of six disabled persons living together in a group home at 6601 Newbury Way is / is not necessary. Note: an accommodation will be determined to be necessary if it would provide direct or meaningful therapeutic amelioration of the effects of the particular disability or handicap, and would afford handicapped or disabled persons equal opportunity to use housing in residential districts in the County. 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 REASONABLE ACCOMMODATION under the Federal Fair Housing Act per Section 10.3.13 of the New Hanover County Unified Development Ordinance to allow up to 8 disabled persons to reside together in a group home located at 6601 Newbury Way be GRANTED/DENIED. ORDERED this 23rd day of June, 2020. ____________________________________ Cameron Moore, Chairman Attest: ____________________________________ Kenneth Vafier, Executive Secretary to the Board