January 25 2022 Agenda Packet
January 25, 2022, 5:30 PM
I. Call Meeting to Order (Chairman Cameron Moore)
II. Election of Chair and Vice Chair
III. Old Items of Business
IV. Regular Items of Business
Case BOA-964 – Timothy and Dixie Ward, applicants and property owners, are requesting a
variance of 25’ from the 75’ minimum conservation resource setback requirement per
Section 5.7.4.B (1) of the New Hanover County Unified Development Ordinance. The property
is zoned R-15, Residential District and is located at 1664 Tall Ships Lane.
V. Other Business
VI. Adjourn
Page 1 of 5
VARIANCE REQUEST
BOARD OF ADJUSTMENT
January 25, 2022
CASE: BOA-964
PETITIONER: Timothy & Dixie Ward, applicants and property owners.
REQUEST: Variance of 25’ from the 75’ Conservation Space Setback requirement per
Section 5.7.4.B, Additional Performance Controls, of the New Hanover
County Unified Development Ordinance (UDO).
LOCATION: 1664 Tall Ships Lane
R07908-003-107-000
ZONING: R-15 Residential District
ACREAGE: 0.95 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
Timothy and Dixie Ward, applicants and property owners, are requesting a variance of 25’ from
the 75’ conservation space setback as required in Section 5.7.4.B, Additional Performance
Controls, of the UDO. This variance of 25’ would allow the applicants to install a 16’ x 34’ in-
ground swimming pool with an at-grade 4’ wide walkway around perimeter.
The subject property consists of 0.95 acres within the Tall Ships Landing subdivision. The
subdivision is in the southern part of the county off Myrtle Grove Road and is a part of the
Everette Creek Watershed. This parcel, lot 24, along with lots 21, 22, 23, and 25, are adjacent
to a tributary west of the Intracoastal Waterway. Lots 24 and 25 both contain Salt Marsh along
their eastern rear property lines. A Salt Marsh is one of the designated conservation resources for
which the UDO contains additional performance controls related to setbacks of impervious
surfaces and retention of runoff for each type of conservation resource. Pools are considered
accessory structures by the UDO’s definition and are subject to the conservation resource
additional performance controls.
The applicant is proposing a total of approximately 760 square feet of impervious coverage in
the required setback, which includes both the pool area and the perimeter walkway. The pool is
proposed to extend approximately 25’ into the required 75’ conservation resource setback.
Page 2 of 5
Approximate location of conservation resources on parcel shown in purple.
Proposed Site Plan with Staff Markups
Edge of
Conservation
Resource
Approximate
75’ Setback
Line
Proposed
16’ x 34’
Pool
To Intracoastal
Waterway
Page 3 of 5
Development in residential zoning districts is subject to a 75’ setback for structures and impervious
surfaces when the salt marsh conservation resource is present on a parcel. The applicable UDO
language states:
5.7.4 ADDITIONAL PERFORMANCE CONTROLS
In addition to the general performance controls specified in Section 5.7.3, Conservation
Space General Performance Controls, additional controls shall be required to protect certain
conservation resources in certain zoning districts. Table 5.7.4: Additional Performance
Controls, lists for each conservation resource and type of district (residential or non-
residential and mixed use), the reference number of the group of additional controls that
shall be required. Requirements for each group are set forth in subsections A through D,
following the table. If the parcel being developed is associated with two or more conservation
re-sources with conflicting performance controls, then the most restrictive controls shall apply.
However, improvements as specified in Section 5.7.3.D, Improvements, may be permitted
within the conservation space setbacks. Additionally, decks may be allowed to encroach into
the conservation space setback up to six 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.
Page 4 of 5
B. Group 2 Performance Controls
1. 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.
The applicant contends that the variance is necessary due to limited buildable area on the lot due
to the presence of environmental features including 404 wetlands, coastal wetlands, and
conservation resources on three sides of the lot.
In summary, the applicant is requesting a variance from the 75’ setback for structures and
impervious surface as required in Section 5.7.4 Additional Performance Controls to allow the
placement of a swimming pool into the COD setback area. Though the greatest point of
encroachment is approximately 25 linear feet, the average encroachment is approximately 15’
due to the contour of the delineated conservation resource line provided by the applicant.
Page 5 of 5
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 UDO. 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 A VARIANCE – Case BOA-964
The Board of Adjustment for New Hanover County, having held a public hearing on January 25, 2022 to
consider application number BOA-964, submitted by Timothy & Dixie Ward, applicants and property
owners, a request for a variance of 25’ from the 75’ conservation space setback in Section 5.7.4.B,
Additional Performance Controls, of the UDO. This variance would allow the applicants to install an in-
ground swimming pool in a manner which is 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 applicants comply with the literal terms of the ordinance,
specifically the restrictions of the conservation space setback per Section 5.7.4.B of the New
Hanover County Unified Development Ordinance, that an unnecessary hardship would/would
not result preventing the applicant from having a pool on their property. (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 of 25’ from the 75’ conservation
space setback in Section 5.7.4.B, Additional Performance Controls of the UDO be GRANTED/DENIED,
subject to the following conditions, if any:
ORDERED this 25th day of January, 2022
____________________________________
Cameron Moore, Chairman
Attest:
________________________________
Kenneth Vafier, Executive Secretary to the Board
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Site
New Hanover County Board of Adjustment
Address: 1664 Tall Ships Lane
Variance from 75’ conservation setback requirement per Section 5.7.4.B of the New
Hanover County Unified Development Ordinance.
Applicant: Timothy & Dixie Ward
Case: BOA-964 Vicinity Map
January 25, 2022
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R-15
R-15
New Hanover County Board of Adjustment
Address: 1664 Tall Ships Lane
Variance from 75’ conservation setback requirement per Section 5.7.4.B of the New
Hanover County Unified Development Ordinance.
Applicant: Timothy & Dixie Ward
Case: BOA-964 Zoning Map
January 25, 2022
R 340
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New Hanover County Board of Adjustment
Address: 1664 Tall Ships Lane
Variance from 75’ conservation setback requirement per Section 5.7.4.B of the New
Hanover County Unified Development Ordinance.
Applicant: Timothy & Dixie Ward
Case: BOA-964 Aerial Map
January 25, 2022
R 340
Feet
NOT FOR REAL ESTATE
SALES OR CONVEYANCE
PRELIMINARY