August 2022 BOA Agenda Packet
MEMBERS OF THE BOARD
Cameron Moore, Chair | Kristin Freeman, Vice-Chair
Henry “Hank” Adams | Maverick Pate | Luke Waddell
BOARD ALTERNATES
Michael Keenan Sr. | Richard Kern | William Mitchell
Rebekah Roth, Director of Planning & Land Use | Sharon Huffman, Deputy County Attorney
NEW HANOVER COUNTY
BOARD OF ADJUSTMENT
230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON NC 28403
August 23, 2022, 5:30 PM
I. Call Meeting to Order (Chairman Cameron Moore)
II. Regular Items of Business
• Case BOA-971 – Henry Depew of Middle Sound Lookout is appealing a determination made by New Hanover
County Planning & Land Use staff pertaining to the approval of a minor modification to a Special Use Permit
for 801 Riptide Center Court.
• Case BOA-972 – Ian A. Johnston, applicant, on behalf of Jeff and Lorrie Wilson, property owners, is requesting
a variance 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 4619 Serenity Point.
III. Other Business
IV. Adjourn
ZBA-932 Page 1 of 2
APPEAL OF ADMINISTRATIVE DECISION
BOARD OF ADJUSTMENT
AUGUST 23, 2022
CASE: BOA-971
APPELLANT: Henry Depew
LOCATION: 801 Riptide Center Court
PID: R04400-004-099-000
ZONING: R-20, Residential District
SUMMARY OF APPEAL:
Henry Depew is appealing a written determination issued on February 27, 2017 by former Planning staff member
Ben Andrea approving a minor modification to the site plan for the Riptide Aquatics Center to allow an indoor pool
facility in the area shown as “Future Development” on the site plan for the Special Use Permit.
STAFF SUMMARY:
The Order of Resident Superior Court Judge Jay D. Hockenbury, dated and filed December 22, 2004, ordered the
Board of Commissioners to grant an order of approval for a special use permit for an indoor / outdoor recreation
establishment and children’s day care at 3102 Middle Sound Loop Road. The site plan for the special use permit
labeled the western portion of the parcel as “Future Development.”
The property owner, Inland Harbour Properties, LLC, obtained permits for the construction of the indoor / outdoor
recreation establishment. Since the initial special use permit approval, the property owner has requested and been
approved for four (4) minor modifications to the site plan. The most recent minor modification was approved on
February 27, 2017, which determined that an indoor swimming pool could be placed in the future development area
of the site plan. Section 71-2(1) of the Unified Development Ordinance updated September 7, 2016 which would
have been in effect at the time of the minor modification, stated:
“The original applicant(s) their successors or their assignee may make minor
changes in the location and/or size of structures provided the necessity for these
changes is clearly demonstrated. Minor changes shall be reviewed by the
Planning and Land Use Department and upon favorable recommendation by
the Planning and Land Use Director may be approved by the Zoning
Administrator. Such approval shall not be granted should the proposed revisions
cause or contribute to:
A. A change in the character of the development.
B. A change of design for, or an increase in the hazards to pedestrian
and vehicle traffic circulation, or
C. A modification in the originally approved setbacks from roads
and/or property lines exceeding ten percent.”
Prior minor site modifications approved in 2007, 2009, and 2011 involved adjustments in the building footprint of
structures shown on the approved site plan. Following approval of the 2017 minor modification, the property owner
obtained grading and land disturbing permits for the site in 2019.
Earlier in 2022 the property owner began construction of one or more of the structures shown on the site plan for the
special use permit. The appellant, Mr. Depew, reviewed the website for Riptide Aquatics Center and noted it
advertised an indoor swimming pool in the “Future Development” area of the site plan. Mr. Depew inquired of
Planning staff whether the pool had been given approval. Following research into the file for Riptide Aquatics Center
staff identified the email from then Current Planning & Zoning Supervisor Ben Andrea which stated “the proposal for
the indoor pool building on the area labeled as “future development” is ok as a minor change.”
ZBA-932 Page 2 of 2
On June 16, 2022 Planning and Land Use Director Rebekah Roth responded to Mr. Depew’s inquiry stating that
based on the 2017 determination the indoor pool would be allowed within the future development area provided
all current development standards were met.
BOARD OF ADJUSTMENT POWER AND DUTY:
The Board of Adjustment has the authority pursuant to Section 10.3.14 of the Unified Development Ordinance 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 Unified
Development Ordinance. Pursuant to Section 10.3.14(C):
“The Board of Adjustment shall modify or reverse the decision on appeal only
if it finds, based upon competent, substantial, and material evidence in the
record, that there has been a clear and demonstrable error, abuse of discretion,
or denial of procedural due process in the application of the facts in the record
to the applicable standards of the Unified Development 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 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 administrative decisions 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 administrative decisions issued by staff.
New Hanover County
Zoning
Ordinance
Adopted October 1969
Updated September 7, 2016
New Hanover County Zoning Ordinance Page 166
ARTICLE VII: PROVISIONS FOR USES ALLOWED AS SPECIAL USES
Section 70: Objectives and Purposes of Special Use Permits
70-1: Special Use Permits add flexibility to the Zoning Ordinance. Subject to high standards of
planning and design, certain property uses may be allowed in the several districts where
these uses would not otherwise be acceptable. By means of controls exercised through
the Special Use Permit procedures, property uses which would otherwise be undesirable
in certain districts can be developed to minimize any bad effects they might have on
surrounding properties.
Section 71: Special Use Permits Issued by the Board of County Commissioners
71-1: General Requirements
(1) Special Use Permits may be issued by the Board of County Commissioners for
the establishment of uses listed as special uses in Article V after a public hearing
and after Planning Board review and recommendation. The Planning Board may
recommend conditions which assure that the proposed use will be harmonious
with the area and will meet the intent of this ordinance. Single-family dwellings,
including mobile homes shall not require Planning Board review prior to County
Commissioner action. (1/2/90)
(2) The owner or owners, or their duly authorized agent, of the property included in
the petition for a Special Use Permit shall submit an application to the New
Hanover County Planning and Inspections Department at least twenty (20)
working days prior to the first regular monthly meeting of the Planning Board.
(12/07) An application fee established by the County Commissioners shall be
paid to the County of New Hanover, North Carolina to cover necessary
administrative costs and advertising expenses. (8/22/82) Such application shall
include all of the requirements pertaining to it in this Article. (5/2/83) All
adjoining property owners shall be notified of the request as outlined in Section
110-1(4) of this ordinance. (2/6/89)
(3) Upon receiving the recommendations of the Planning Board and holding a
public hearing, the Board of County Commissioners may grant or deny the
Special Use Permit requested. The Special Use Permit, if granted shall include
such approved plans as may be required. In granting the Special Use Permit the
Commissioners shall find: (1/2/90)
(A) that the use will not materially endanger the public health or safety if
located where proposed and approved;
(B) that the use meets all required conditions and specifications;
(C) that the use will not substantially injure the value of adjoining or
abutting property, or that the use is a public necessity; and
(D) that the location and character of the use if developed according to the
plan as submitted and approved will be in harmony with the area in
which it is to be located and in general conformity with the plan of
development for New Hanover County. (5/2/83)
New Hanover County Zoning Ordinance Page 167
(4) In granting the permit the Board of County Commissioners may recommend and
designate such conditions in addition and in connection therewith, as will in its
opinion, assure that the use in its proposed location will be harmonious with the
area in which it is proposed to be located and with the spirit of this Ordinance.
All such additional conditions shall be entered in the minutes of the meeting at
which the permit is granted and also on the certificate of the Special Use Permit
or on the plans submitted therewith. All specific conditions shall run with the
land and shall be binding on the original applicants for the Special Use Permit,
their heirs, successors and assigns. A Special Use Permit, issued by the Board of
County Commissioners shall become null and void if construction or occupancy
of the proposed use as specified on the Special Use Permit is not commenced
within twenty-four (24) months of the date of issuance. If an extension is
desired, a request must be submitted in writing to the New Hanover County
Planning and Inspections Department prior to the expiration. Extensions may
be granted in accordance with section 112-6 of the Ordinance.(12/17/2012)
A Board of County Commissioners decision on an extension may be appealed in
conformity with the requirements of Section 71-1(6) of this Ordinance. (5/2/83),
(10/7/91)
(5) If the Board of County Commissioners denies the Permit, the Board shall enter
the reasons for its action in the minutes of the meeting at which the action is
taken. (5/2/83)
(6) Every decision by the Board of Commissioners issuing or denying a special use
permit 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. (5/3/82)
(7) In addition to the specific conditions imposed by the regulations of this
Ordinance and whatever additional conditions the Board deems reasonable and
appropriate, special uses shall comply with the height, yard, area and parking
regulations for the use district in which they are permitted unless otherwise
specified. If additional yard area is required for a special use, such additional
area may be used for off-street parking. A transportation information sheet is
required for any development that will generate more than 100 trips during the
peak hour; a traffic impact study may also be required. The study shall be
prepared in accordance with Standards and Guidelines approved by the County
and shall be submitted at least four weeks prior to the first scheduled meeting
of the project's review. (5/02)
(8) In the event of failure to comply with the plans approved by the Board of
County Commissioners or with any other conditions imposed upon the Special
New Hanover County Zoning Ordinance Page 168
Use Permit, the Permit shall thereupon immediately become void and of no
effect. No building permits for further construction or certificates of occupancy
under this Special Use Permit shall be issued, and all completed structures shall
be regarded as non-conforming uses subject to the provisions of Article IV of
this Ordinance provided, however, that the Board of County Commissioners
shall not be prevented from thereafter rezoning said property for its most
appropriate use.
(9) The original applicant(s), their successors or their assignee may make minor
changes in the location and/or size of structures provided the necessity for
these changes is clearly demonstrated. Minor changes shall be reviewed by the
Planning and Inspections Department and upon favorable recommendation by
the Planning and Inspections Director may be approved by the Zoning
Administrator. Such approval shall not be granted should the proposed revisions
cause or contribute to:
(A) A change in the character of the development.
(B) A change of design for, or an increase in the hazards to pedestrian and
vehicle traffic circulation, or
(C) A modification in the originally approved setbacks from roads and/or
property lines exceeding ten percent. (5/4/81) (9/3/2013)
(10) Resubmittals: An application for a special use which has been previously
denied may be resubmitted only if there has been a change in
circumstances as determined by the Planning and Inspections Director
or the director's designee.
Evidence presented in support of the new application shall initially be limited to
what is necessary to enable the Planning and Inspections Director to determine
whether there has been a substantial change in the facts, evidence, or
conditions of the case and shall include:
(A) Circumstances affecting the property that is the subject of the
application which have substantially changed since the denial; or
(B) New information available since the denial that could not with
reasonable diligence have been presented at a previous hearing.
If the Planning and Inspections Director deems the evidence substantially
changed, the proposal may be resubmitted as a new application.
Appeal of the Planning and Inspections D
to the Board of County Commissioners. (9/07)
Unified Development Ordinance
New Hanover County, North Carolina
Updated March 21, 2022
Unified Development Ordinance | New Hanover County, NC 10-61
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.
10.3.14. APPEAL OF ADMINISTRATIVE DECISION
A. Applicability
Any person who has standing under N.C.G.S. 160D-1402, or the County, may
appeal a decision, interpretation, or determination made by the Planning Director
or the TRC under this Ordinance to the Board of Appeals in accordance with the
procedures and standards in this section and state law. [05-03-2021]
B. Appeal of Administrative Decision Procedure
Figure 10.3.14.B summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to an appeal of an administrative
decision. Subsections 1 through 4 below, specify the required procedure for an
appeal of an administrative decision, including applicable additions or modifications
to the standard review procedures.
Figure 10.3.14.B: Summary of Appeal of Administrative Decision Procedure
Public
Hearing Procedures
(Optional)
Pre-Application Conference
(Optional)
Community Information Meeting
Application
Submittal &
Acceptance
Staff Review &
Action
2
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
3
Board of
Adjustment
Hearing &
Decision
4
Post-Decision
Limitations and
Actions 1 Notice of Appeal
10-62 New Hanover County, NC | Unified Development Ordinance
1. Notice of Appeal
The procedures and requirements in Section 10.2.4, Application Submittal
and Acceptance, and Section 10.2.5, Staff Review and Action, do not
apply to appeals of administrative decisions. Instead, a Notice of Appeal,
along with the required fees, shall be filed and processed in accordance
with subsections a through e below.
a. The appellant shall file a Notice of Appeal stating the grounds for the
appeal with the County Clerk within 30 days of:
1. Receipt of written notice in accordance with Section 10.2.10.A,
Notification to Applicant; or
2. If the appellant did not receive written notice in accordance with
Section 10.2.10.A, Notification to Applicant, receipt of actual or
constructive notice of the decision.
b. The Planning Director shall transmit all documents and exhibits
constituting the record upon which the decision appealed from is
taken to the Board of Adjustment, and shall provide a copy of the
record to the appellant and to the owner of the property that is the
subject of the appeal, if the appellant is not the owner.
c. An appeal of a notice of violation or other enforcement order stays
enforcement of the action appealed from, subject to subsections 1
and 2 below.
1. The official who made the decision may certify to the Board of
Adjustment, after the Notice of Appeal is filed, that because of the
facts stated in an affidavit:
i. A stay would cause imminent peril to life or property; or
ii. A stay would seriously interfere with enforcement of this
Ordinance because the violation is transitory in nature.
2. If a certification is made in accordance with subsection 1 above,
enforcement proceedings shall not be stayed except by a
restraining order, which may be granted by a court.
d. If enforcement proceedings are not stayed in accordance with
subsection c above, the appellant may file with the Planning Director a
request for an expedited hearing of the appeal, and the Board of
Adjustment shall meet to hear the appeal within 15 days after the
request is filed.
e. Decisions granting a permit or otherwise affirming that a proposed use
of property is consistent with this Ordinance shall not stay the further
review of applications for development approvals or permits for the
property. In such cases, the appellant may request, and the Board
may grant, a stay of a final decision of permit applications or building
permits affected by the issue being appealed.
Unified Development Ordinance | New Hanover County, NC 10-63
2. Public Hearing Scheduling and Public Notification
The Planning Director shall schedule the public hearing on the appeal
and provide public notification in accordance with Section 10.2.6, Public
Hearing and Preliminary Forum Scheduling and Public Notification.
3. Decision-Making Body Action
a. The Board of Adjustment shall conduct a quasi-judicial public hearing
and make a decision on the appeal, by vote of a majority of members,
not counting vacant positions on the Board or members who are
disqualified from voting. The hearing and decision shall be in
accordance with Section 10.2.9, Decision-making Body Review and
Action, and Section 10.3.14.C: Appeal of Administrative Decision
Standards cision shall be one of the following:
1. Affirm (wholly or partly) the decision;
2. Modify the decision; or
3. Reverse the decision.
b. In making its decision, the Board of Adjustment shall have all the
powers of the official who made the decision and shall make any
order, requirement, decision, or determination that ought to be made.
4. Post-Decision Limitations and Actions
a. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
b.
Superior Court of New Hanover County, in accordance with state law.
C. Appeal of Administrative Decision Standards
The Board of Adjustment shall modify or reverse the decision on appeal only if it
finds, based upon competent, substantial, and material evidence in the record, that
there has been a clear and demonstrable error, abuse of discretion, or denial of
procedural due process in the application of the facts in the record to the applicable
standards of this Ordinance.
10.3.15. INTERPRETATION
A. Purpose
The purpose of the interpretation procedure in this section is to establish a uniform
mechanism for rendering formal written interpretations of the text of this Ordinance
and the boundaries or classifications on the Official Zoning Map.
B. Applicability
1. The procedure and standards in this section are required for the
rendering of formal written interpretations of the text of this Ordinance and
the boundaries or classifications on the Official Zoning Map.
Case Record
Approved Court Order
December 15, 2004
Amended Court Order
December 22, 2004
Special Use Permit Approved
Order
February 23, 2005
Special Use Permit Approved
Site Plan
February 23, 2005
Special Use Permit Application
April 4, 2004
Applicant Presentation Slides
2004
Minor Modification Request
February 20, 2007
Permit Verification Letter
February 22, 2007
Minor Modification Approval
February 21, 2007
Minor Modification Request
January 18, 2009
Minor Modification Approval
January 27, 2009
Minor Modification Approved
Site Plan
January 27, 2009
Special Use Permit Subdivision
Letter
June 4, 2010
Minor Modification Approval
December 29, 2011
Minor Modification Approval
February 27, 2017
Grading and Land Disturbance
Permits
2019
Appeal Application
Documents & Materials
BOA-972 Page 1 of 6
VARIANCE REQUEST
BOARD OF ADJUSTMENT
August 23, 2022
CASE: BOA-972
PETITIONER: Ian A. Johnston, applicant, on behalf of Jeff and Lorrie Wilson, property owners.
REQUEST: Variance from the 75’ Conservation Resource setback requirement per Section 5.7.4.B (1),
Additional Performance Controls, of the New Hanover County Unified Development
Ordinance (UDO).
LOCATION: 4619 Serenity Point
PID: R07217-007-004-000
ZONING: R-15, Residential District
ACREAGE: 0.52 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
Ian Johnston, applicant, on behalf of Jeff and Lorrie Wilson, property owners, is requesting a variance of
approximately 74.5’ from the 75’ conservation resource setback in order to construct a single-family
residence on the subject property.
The subject property consists of 0.52 acres within the 4-lot Serenity Point subdivision. The subdivision is
located in the southern part of the county off Masonboro Loop Road. Two neighboring lots to the east are
adjacent to the Intracoastal Waterway while the subject property is adjacent to a salt marsh along the
northern 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.
Figure 1: Approximate location of Salt Marsh with 75’ Conservation Resource Setback Line. Refer to Figure 2 for field-verified locations.
Intracoastal
Waterway
Approximate
Salt Marsh Area
Approximate 75’
Conservation
Resource Setback Line
BOA-972 Page 2 of 6
The proposed structure is a 4,143 square foot residence with attached deck space and an elevated pool.
When applying the UDO’s definition of Structure to the proposal, the attached pool and deck is considered
a structure:
STRUCTURE
Anything constructed or erected within a fixed location on the ground, or attached to something having
a fixed location on the ground. The term structure shall be construed to include buildings, porches,
decks, carports, garages, sheds, roof extensions, overhangs extending more than two inches, and any
other projections directly attached to the structure. For purposes of Section 5.10, Airport Height
Restriction, a structure is any object, including a mobile object, constructed or installed by man,
including, but without limitation, buildings, towers, cranes, smokestacks, earth formation, and overhead
transmission lines. This definition does not apply to the provisions of Article 9: Flood Damage
Prevention; for that meaning, see Section 9.5: Definitions.
As proposed, the edge of the pool and deck would encroach to approximately 1.5’ from the edge of the
conservation resource. The UDO contains performance controls on conservation resources which require all
structures and impervious surfaces to be set back a minimum of 75’ from a salt marsh:
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.
BOA-972 Page 3 of 6
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.
A structure on this site would be subject to CAMA regulations which would require a 30’ buffer from the
normal high-water line and limit impervious surface area on site to 25%. In addition, this property lies
within a VE flood zone, and Article 9: Flood Damage Prevention of the UDO requires that any structure be
elevated to the County’s design elevation of 2’ above base flood elevation.
BOA-972 Page 4 of 6
Figure 2: Proposed Site Plan with staff markups.
75’ Conservation
Resource Setback
Landward Extent
of Conservation Resource
Normal High
Water Line
Proposed Structure
Footprint
BOA-972 Page 5 of 6
In addition to the presence of the salt marsh conservation resource, the property has additional factors that
affect the potential buildable area of the lot. Along the front property line there is a 30’ access, utility,
and drainage easement, and another drainage easement ranging in width from 5’ to 26’ occupies a portion
of the western property line. The northern property line is irregularly shaped due to the presence of
environmental features including the salt marsh, CAMA buffer area, and 404 wetland areas.
Figure 3: Subdivision Record Plat from 2014 showing recorded easements and approximate Conservation Resource Line as flagged at the time
of recording. The current CAMA High Water Line is depicted in Figure 2.
The applicant contends that the required conservation resource setback, in combination with the recorded
easements, coastal wetlands, and 404 wetlands, limits the buildable area of the lot to where it would not
be consistent with the adjacent homes. In addition, the applicant contends that this limited buildable area
limits utilization of the site from a market and investment standpoint and makes it difficult to create a more
practical rectangular building footprint.
BOA-972 Page 6 of 6
In summary, the applicant is requesting a variance of approximately 74.5’ from the 75’ setback for
structures and impervious surface as required in Section 5.7.4 Additional Performance Controls to allow
encroachment of the proposed single-family home into the conservation resource setback area.
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.
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.
MEMBERS OF THE BOARD
Cameron Moore, Chair | Kristin Freeman, Vice-Chair
Henry “Hank” Adams | Maverick Pate | Luke Waddell
BOARD ALTERNATES
Michael Keenan Sr. | Richard Kern | William Mitchell
Rebekah Roth, Director of Planning & Land Use | Sharon Huffman, Deputy County Attorney
NEW HANOVER COUNTY
BOARD OF ADJUSTMENT
230 GOVERNMENT CENTER DRIVE, LUCIE HARRELL CONFERENCE ROOM WILMINGTON NC 28403
ORDER TO GRANT A VARIANCE – Case BOA-972
The Board of Adjustment for New Hanover County, having held a public hearing on August 23, 2022 to consider application
number BOA-972, submitted by Ian A. Johnston, applicant, on behalf of Jeff and Lorrie Wilson, property owners, a request
for a variance from the 75’ Conservation Resource setback requirement per Section 5.7.4.B (1), Additional Performance
Controls, of the New Hanover County Unified Development Ordinance to use the property located at 4619 Serenity Point
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 Resource setback requirement per Section 5.7.4.B (1), Additional Performance Controls,
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 the 75’ Conservation
Resource setback requirement per Section 5.7.4.B (1), Additional Performance Controls, of the New Hanover County
Unified Development Ordinance be GRANTED/DENIED, subject to the following conditions, if any:
ORDERED this 23rd day of August, 2022.
____________________________________
Cameron Moore, Chairman
Attest:
________________________________
Kenneth Vafier, Executive Secretary to the Board