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BOA-965 Staff SummaryVARIANCE REQUEST BOARD OF ADJUSTMENT March 22, 2022 CASE: BOA-965 PETITIONER: Mathew A. Nichols on behalf of Jackalope Development, applicants and property owners. REQUEST: A variance request of 15’ from the 50-foot front setback requirement in the I-1 District, as per section 3.4.10.D New Hanover County Unified Development Ordinance (UDO). This request is for the purposes of constructing an addition to the existing office/warehouse facility. LOCATION: 6605 Amsterdam Way, Wilmington – Parcel ID: R04315-003-006-000 ZONING: I-1 Light Industrial ACREAGE: 1.028 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. / Approximate location of conservation resources on parcel shown in purple. / Proposed Site Plan with Staff Markups 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. / B. Group 2 Performance Controls 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. 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.