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1.26.21 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 Henry “Hank” Adams Kristin Freeman Maverick Pate Luke Wadell BOARD ALTERNATES Pete DeVita Michael Keenan, Sr. Richard Kern January 26, 2021, 5:30 PM I. Call Meeting to Order (Chairman Cameron Moore) II. Election of 2021 Officers III. Approval of November Minutes (currently in draft status) November Member Attendees: Cameron Moore, Mark Nabell, Kristin Freeman, Pete DeVita, Michael Keenan III. Regular Items of Business Case ZBA-954 - Bradley Wivell, applicant and property owner, is requesting a variance from the discontinuance of a non-conforming use duration per Sections 11.4 and 11.6; and a variance of 20.4’ from the 35’ minimum required front yard setback in the B-2, Regional Business District per Section 3.4.5.D of the New Hanover County Unified Development Ordinance. The property is located at 1112 Elm Street. IV. Other Business V. Adjourn 1 MINUTES BOARD OF ADJUSTMENT DRAFT The New Hanover County 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 10, 2020. Members Present Members Absent Cameron Moore, Chairman Hank Adams Mark Nabell, Vice-Chairman Ray Bray Kristin Freeman Richard Kern Michael Keenan Pete DeVita Ex Officio Members Present Ken Vafier, Executive Secretary Sharon Huffman, Deputy County Attorney Sheighla Temple, Zoning Compliance Official The meeting was called to order at 5:30 P.M. by the Chairman, Mr. Cameron Moore. Mr. Moore explained that the Board is a quasi-judicial board appointed by the Board of Commissioners to consider 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 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 APPROVAL OF OCTOBER 27, 2020 MINUTES Following a motion by Vice-Chair Nabell and seconded by Mr. DeVita, the minutes from the October 27, 2020 meeting were unanimously approved with no edits. All ayes to approve the minutes by board members present. SECOND ORDER OF BUSINESS CASE ZBA-951 Chairman Moore informed Board members that the applicant is present to request a variance for the one case on the agenda. Today’s case is a continuance from the October 27, 2020 meeting. Chairman Moore swore in Ken Vafier, Cindee Wolfe and Curtis Westbrook. Design Solutions, on behalf of CWEST, LLC, property owner, is requesting a variance of a 10’ from the 20’ minimum transitional buffer width requirement per Section 5.4.4.C of the New Hanover County Unified Development Ordinance. The property is located at 9515 River Road and zoned R-15, Residential District. 2 The subject site is 4.2 acres and is intended to be developed as an expansion of the existing Snows Cut RV Park. Mr. Vafier stated a Special Use Permit has been submitted for the November 5th Planning Board meeting to review. The applicant is proposing this variance on the far southwestern boundary of the property, in an area where a proposed access road from the proposed RV park to River Road would be aligned. Mr. Vafier stated the applicant requested additional time at the October meeting to prepare revisions to the site plan for the expansion and site improvements such as the access drive, RV spaces, and septic fields on a portion of the tract located east to west on the site which is limited in width and contains soil characteristics which require the septic fields to be placed in specific locations. Mr. Vafier stated should the Special Use Permit be granted, transitional buffers would be required on the western and southwestern boundaries per Section 5.4.4.C of the UDO. Mr. Vafier presented aerial photos of the Snows Cut RV park and adjacent undeveloped areas to the west to the park. Mr. Vafier stated that transitional buffers are required where a non-residential use abuts vacant, residentially zoned property. Two of the sides at the subject site are undeveloped and require buffers. There are different options for transitional buffers that can be utilized on a site and these are outlined in the UDO. Mr. Vafier concluded that the transitional buffer would include an 8 ft. screening fence with 3 ft. planting shrubs. The applicant is requesting a variance to the width. Mr. Curtis Westbrook Sr., 701 East Chatham Street, Cary, NC 27511. Mr. Westbrook introduced Ms. Wolfe and requested that she make the presentation for the variance request. Ms. Cindee Wolfe stated she has worked with Mr. Westbrook in the past on the subject site. She is presently working with Mr. Westbrook to expand the Snows Cut RV to accommodate more spaces and site improvements. Ms. Wolfe states she is presenting a simplified, conceptual site plan tonight which outlines the septic fields at the subject site. Ms. Wolfe stated the site was challenging in terms of meeting all current design requirements, as the site has been utilized in the past as a camp ground. There has been additional gravel and soil disturbance in the past at the location. Ms. Wolfe stated the shape of the site and some of the existing conditions, such as location of certain soils, limits the availability in where septic systems can be located presents a hardship. Ms. Wolfe stated in order to fully utilize the area to expand, the buffer would need to be reduced. Ms. Wolfe presented photos of the undeveloped and heavily wooded area where the reduced buffer would apply. Ms. Wolfe stated there are two areas for the buffer reduction request. The proposal of a fence would start 20 ft. back due to site triangles location of fence would be set appropriately to meet regulation. The buffer reduction requested is 10 ft. rather than the required 20 ft. which would incorporate a fence and landscaping to the site. Ms. Wolfe stated this request is consistent with what may soon become a county regulation to buffer yards. 3 Ms. Wolfe stated that based on timing they are pursuing variance in order to plan appropriately for further processing the expansion proposal. Mr. DeVita inquired to the amount of septic tanks at the park. Mr. DeVita also inquired of rental time frame. Ms. Wolfe stated that there are multiple septic fields at the site and repairs, some of them will be shared. Ms. Wolfe stated the rentals would be similar to the KOA parks, which is a transient lodging site. Chairman Moore inquired of sewer availability at the subject site park. Ms. Wolfe stated sewer was available during the first stage of the park’s development. Mr. West stated that for the first phase, a central septic system was available for 19 units. A field was available to pump the effluent and a repair system is located as well to adequately service these units. Mr. West stated during phase 3 section additional usable soils were located and under the recommendation of a licensed soil scientist a different method was implemented for the septic fields. Mr. West stated CFPUA does not service the area. Mr. West stated AQUA offers sewer services but is located 1,356 ft. from phase 1. However, this would require an extensive financial burden to the expansion project. Ms. Freeman asked what is the standard fence requirement. Mr. Vafier stated the fence requirement is between 6-10 ft. if this transition buffer option is elected by the applicant. Mr. West stated the fence would be raised to meet a 6 ft. fence requirement with enough room to have a shadow box, large post with all screws in hopes to sustain future weather impacts. Mr. DeVita inquired of any opposition to the project by adjacent neighbors. Ms. Wolfe stated Ms. Weaver is aware of what is going on to the expansion and no objections has been relayed. Ms. Wolfe stated fencing is not on the property line. Plantings will be installed. Ms. Huffman stated the applicant did provide findings to hardship for the variance request in the application. PUBLIC HEARING CLOSED BOARD DELIBERATION Mr. Nabell stated the site is limited due to the septic system fields. Chairman Moore stated the driveway location is limited and the narrow width limits the use of this section of the tract. Ms. Freeman stated the applicant is limited with servicing the entire park with AQUA due to finance and CFUPA does not offer sewer to the park due to its location is not within 500 ft. 4 Mr. DeVita made a motion to approve the variance based on the applicant’s proposed findings of fact. Mr. Nabell second the motion. All ayes to approve the variance as requested of a 10’ from the 20’ minimum buffer width requirement. PRELIMARY FINDINGS OF FACT: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 20’ minimum transitional buffer width requirement in Section 5.4.4.C of the New Hanover County Unified Development Ordinance, that an unnecessary hardship would result/would not result. This conclusion is based on the following FINDINGS OF FACT:  Offsetting the access drive a full 20’ from the property boundary severely limits the usability of this section of the tract for the intended use.  Due to the need for septic fields to serve the proposed use, the dimensional and setback requirements for each creates limitations. 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. This conclusion is based on the following FINDINGS OF FACT:  The tract is unusually shaped, and the access drive needs to extend through the narrow section to the frontage along River Road. However, that severely limits the resulting usability of that entire section of the tract. The development area is further constrained by an existing structure and septic system fields, which must be specifically located based on soil characteristics.  The hardship is a result of the requirement for multiple septic fields due to the location and the lack of access to sewer. 3. It is the Board’s conclusion that the hardship did/did not result from actions taken by the applicant or the property owner. This conclusion is based on the following FINDINGS OF FACT:  The buffer requirement is a basic regulation of the UDO to mitigate impacts and provide transition between dissimilar uses. The owner simply seeks to modify the width of the buffer in exchange for a combination of plantings and a solid wooden fence that will provide the intended visual screening. 4. It is the Board’s conclusion that, if granted, the variance will be consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT:  The use of the combination of a fence and plantings is already an option of the buffer yard types, but currently still requires a 20’ width. That distance is unnecessary for the installation of the fence and required plantings. There is currently a draft of Code amendments that includes reducing the buffer width to 10’ when using the fence/ plantings alternative. This request would pose no safety issue to the public, or the adjacent property owner. The spirit, purpose, and intent of the buffer regulations will still be preserved in providing both transition and visual screening of the RV park. 5 There being no further business before the Board, it was properly moved by Vice-Chair Nabell and seconded by Mr. DeVita to adjourn the meeting. All ayes. Please note the minutes are not a verbatim record of the proceedings. _____________________________________ _________________________________ Executive Secretary Chairman Date ________________________________ ZBA-954 Page 1 of 5 VARIANCE REQUEST ZONING BOARD OF ADJUSTMENT January 26, 2020 CASE: ZBA-954 PETITIONER: Bradley Wivell, applicant and property owner. REQUEST: Variance from the 180-day discontinuance of a non-conforming use duration per Sections 11.4 and 11.6; and a variance of 20.4’ from the 35’ minimum required front yard setback in the B-2, Regional Business District per Section 3.4.5.D of the New Hanover County Unified Development Ordinance. LOCATION: 1112 Elm Street PID: R08518-003-004-000 ZONING: B-2, Regional Business District ACREAGE: .09 acres (approximately 3,920 square feet) BACKGROUND AND ORDINANCE CONSIDERATIONS: Bradley Wivell, applicant and property owner, is requesting a variance from three ordinance provisions governing non-conforming situations and required front yard setbacks within the New Hanover County Unified Development Ordinance (UDO) in order to construct a single-family dwelling within the B-2 District. The subject parcel is located in the Seabreeze community in southern New Hanover County and consists of approximately 3,920 square feet. The parcel is one of several lots in this area that comprise approximately 10 acres which were zoned B-2 in 1971 due to their historic use as waterfront business and recreation destinations. Figure 1: Seabreeze Community with B-2, Regional Business District Boundary Subject Parcel ZBA-954 Page 2 of 5 Currently, the site is operating as a boat trailer storage lot which is affiliated with the applicant’s boat storage business located across Elm Street to the southwest of the subject parcel. The applicant was notified in November of 2020 that the expansion of the business onto the subject parcel would require the approval of a minor site plan through the county’s development review process. At that time, the applicant indicated the intention to construct a single-family residence on the parcel. Single Family Dwellings are not permitted uses within the B-2 district, however, there are some legal non-conforming situations within this district as its development predates the application of its current zoning designation. In general, legal non-conforming situations occur when a land use, structure, lot of record, sign, or site feature was lawfully established before a regulation was adopted or amended and does not conform to the UDO’s current terms and requirements. The ordinance allows legal non-conformities to remain until they are removed, but their continual use is not encouraged. Once a legal non-conforming use is discontinued, the ordinance establishes a 180-day duration after which the property may only be used for conforming uses. A potential rezoning request for the property to a district that would allow a single-family residence was not a preferred option due to the minimum lot size requirements of districts that would be most in line with the 2016 Comprehensive Plan, thus the applicant elected to apply for a variance seeking relief of the 180-day discontinuance duration. The applicant has provided a survey from 2002 showing that a single-family dwelling was located on the subject parcel at that time but was not present when the applicant purchased the property in 2017. Figure 2: Survey from July 15, 2002 showing home on subject parcel, which was removed prior to the applicant purchasing the property, and proposed site plan with variance request of 20.4’ from the 35’ front yard setback in the B-2 District. Proposed 14.6’ Front Yard Setback ZBA-954 Page 3 of 5 Section 11.6 of the UDO provides the duration on the discontinuance of a non-conforming use: Section 11.6 Abandonment and Discontinuance of Nonconforming Situations 11.6.1 When a nonconforming use is discontinued for a consecutive period of 180 days, only a conforming use may be located on the property. As the previously existing structure has been removed from the site as recently as October 2017, a new residence would not be able to be located on the parcel with the application of Section 11.6.1. The applicant contends that the variance is necessary in order to allow a new single-family residential structure to be placed back on the subject property and that the property owner would have been allowed to do so if not for the passage of the 180-day duration In addition, the applicant notes that Section 11.4.9 of the UDO states that, under certain parameters, a larger, single family residential structure may be constructed in place of a smaller one: 11.4.9 A structure that is nonconforming in any respect, or a structure that is used in a nonconforming manner may be reconstructed or replaced if partially or totally destroyed, if: A. A letter of intent is received by the Planning Director within six months from the time of such destruction. B. A building permit is obtained from the Building Safety Department within one year from the time the damage or destruction took place. C. The total amount of space devoted to a nonconforming use may not be increased, except that a larger, single family residential structure may be constructed in place of a smaller one and a larger mobile home intended for residential use may replace a smaller one. The applicant contends that the ordinance does allow for a structure outside that of the original structure’s footprint to be rebuilt on a lot where the non-conformity is preserved if these parameters are met, and thus is requesting relief of provisions (A) and (B) above. If the Board were to grant a variance from the aforementioned non-conforming provisions, the applicant is also requesting a variance from the 35’ front yard setback requirement in the B-2 district in order to accommodate construction of a residence on the lot due to its area. The front yard setback in the B-2 district is generally based on the type of road frontage adjacent to a parcel. The subject site is adjacent to Elm Street, which is an NCDOT maintained road, thus making it subject to a 35’ front yard setback per the dimensional standards for the B-2 district set forth in section 3.4.5 D of the UDO: ZBA-954 Page 4 of 5 In summary, the applicant is requesting a variance from the 180-day discontinuance of a non-conforming use duration per Sections 11.4 and 11.6; and a variance of 20.4’ from the 35’ minimum required front yard setback in the B-2, Regional Business District per Section 3.4.5.D of the UDO in order to allow construction of a single-family residence on the subject parcel. 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 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. ZBA-954 Page 5 of 5 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 Cameron Moore, Chairman Henry “Hank” Adams Kristin Freeman Maverick Pate Luke Wadell BOARD ALTERNATES Pete DeVita Michael Keenan, Sr. Richard Kern ORDER TO GRANT A VARIANCE – Case ZBA-954 The Zoning Board of Adjustment for New Hanover County, having held a public hearing on January 26, 2021 to consider application number ZBA-954, submitted by Bradley Wivell, applicant and property owner, a request for a variance from the discontinuance of a non-conforming use duration per Sections 11.4 and 11.6; and a variance of 20.4’ from the 35’ minimum required front yard setback in the B-2, Regional Business District per Section 3.4.5.D to use the property located at 1112 Elm Street 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 discontinuance of a non-conforming use duration per Sections 11.4 and 11.6; and the 35’ minimum required front yard setback in the B-2, Regional Business District per Section 3.4.5.D of the New Hanover County Unified Development Ordinance, that an unnecessary hardship would/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 Unified Development Ordinance to allow a variance from the discontinuance of a non-conforming use duration per Sections 11.4 and 11.6; and a variance of 20.4’ from the 35’ minimum required front yard setback in the B-2, Regional Business District per Section 3.4.5.D of the UDO be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 26th day of January, 2021. ____________________________________ Cameron Moore, Chairman Attest: ________________________________ Kenneth Vafier, Executive Secretary to the Board