December 6 2022 BOA-976 Agenda Packet
December 6, 2022, 5:30 PM
I. Call Meeting to Order (Chairman Cameron Moore)
II. Election of 2023 Officers
III. Adoption of 2023 Board of Adjustment Calendar
IV. Approval of September 27, 2022 Minutes
(Attendees at September Meeting – Chair Cameron Moore, Kristin Freeman, Hank Adams,
Michael Keenan, Luke Waddell)
V. Old Items of Business
VI. Regular Items of Business
Case BOA-976 – Douglas Brandon Paluck of P&P Enterprises, LLC, applicant, and property
owner, is requesting a variance of 17’ from the 30’ minimum side yard setback requirement
per Table 3.1.3.C.1 of the New Hanover County Unified Development Ordinance. The
property is zoned R-15, Residential District and is located at 5406 Castle Hayne Road.
VII. Other Business
VIII. Adjourn
MEMBERS OF THE BOARD
Cameron Moore, Chair | William Mitchell
Michael Keenan, Sr. | Maverick Pate | Luke Waddell
BOARD ALTERNATES
Richard Kern | Michael Sanclimenti | Ed Trice
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
2023 Board of Adjustment Meeting Dates
January 24th
February 28th
March 28th
April 25th
May 23rd
June 27th
July 25th
August 22nd
September 26th
October 24th
November 14th
December 12th
* Meetings will be on the 4th Tuesday of each month but moved to the 2nd in November and December to account for Holidays.
MINUTES BOARD OF ADJUSTMENT
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, September 27th, 2022.
Members Present Members Absent Cameron Moore, Chairman Maverick Pate Kristin Freeman, Vice-Chair William Mitchell Luke Waddell Richard Kern
Michael Keenan
Henry ‘Hank’ Adams Ex Officio Members Present Ken Vafier, Executive Secretary
Sharon Huffman, Deputy County Attorney
Karlene Ellis-Vitalis, Long Range Planner Jeiny Tisbert, Administrative Specialist The meeting was called to order at 5:30 P.M. by the Chairman, Mr. Cameron Moore.
FIRST ORDER OF BUSINESS Chairman Moore began by acknowledging that some grammatical changes were done on the minutes from the previous Board of Adjustment meeting that was held on August 23rd, 2022.
Mr. Moore asked the Board if they would like to adopt the minutes based on the changes that were made present. Mr. Keenan motioned to adopt the amendments. Mr. Waddell seconded the motion.
The Board unanimously adopted the minutes. Mr. Moore explained that the Board of Adjustment 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. Mr. Moore stated that there was one item on the agenda. Lee and Mildred Hershner, applicants and property owners, are requesting a variance of 7.5’ from the 12.5’ minimum street side yard setback requirement per
Section 3.2.9.D (3) of the New Hanover County Unified Development Ordinance. The property is zoned R-10, Residential District and is located at 131 Springhill Road. Mr. Moore swore in Karlene Ellis-Vitalis.
CASE BOA-974
Ms. Ellis-Vitalis presented the case, stating that Lee A. and Mildred E. Hershner, applicants and property
owners, are requesting a space variance from the minimum street side yard setback requirement of 12.5’in the R-10 district to construct a 600+sf. detached garage/workshop on the subject property. The parcel is located at the southern extremities of the Brookside subdivision, at the intersection of Springhill Road (to the west) and Candlewood Drive (to the south). While there are neighboring residential properties north and West of the
subject property, all the properties South and southeast of Candlewood Drive are undeveloped and designated as
FEMA buy-out tracts to the South or HOA open space to the Southeast. Ms. Ellis-Vitalis showed an aerial map image of the property and neighborhood. Ms. Ellis-Vitalis also presented the approximate location of the proposed garage/workshop.
Ms. Ellis-Vitalis stated that the UDO requires that accessory structures 600+ sf. meet the minimum required
setbacks for a principal structure in their respective zoning district as per Section 4.4.4. B.1. Accessory structures shall comply with the following standards: No accessory structure shall be erected in any required yard nor within five feet of any other building, except that accessory buildings not exceeding 600 square feet may be permitted in the required side and rear yards provided such accessory buildings are at least five feet
from the property line and do not encroach into any required easements. Parcels zoned R-10 are subject to the
required 12.5’street side yard setback as specified in the dimensional standards in Section 3.2.9 of the UDO. As indicated on the location plan, the parcel is bounded by two streets and therefore subject to the 25’ front yard setback from Springhill Road and 12.5’minimum streetside setback on Candlewood Drive. The applicants are
proposing to maintain the required 20’ minimum rear yard setback and the 25’ front yard setback. However, the
applicants are requesting a variance of 7.5’which will reduce the minimum street side setback from Candlewood Drive from 12.5’to 5’, citing the following as described in the submitted application: 1. There are no neighboring residential structures South of the subject parcel along Candlewood Drive. After severe flooding from Smith Creek the properties were acquired by New Hanover County under the FEMA Hazard Mitigation Assistance Program, demolished and the land preserved as open space.
2. The subject parcel doesn’t typically function as a corner lot since the portion of Candlewood Drive which borders 131 Springhill Street is not maintained since as early as 2003, NCDOT public signage indicates “State Maintenance Ends.”
Ms. Ellis-Vitalis summarized that the applicants are requesting a variance of 7.5’ from the minimum side yard setback requirement of 12.5’ to construct a secured enclosed accessory structure of 600+sf. with the capacity for a 2-vehicle garage and workshop which will maintain a 5’ minimum side yard setback.
Mr. Moore asked if there are any questions. Mr. Keenan asked if the property sits on a partial cul-de-sac. Ms.
Ellis-Vitalis confirmed that Candlewood Drive runs a bit past the parcel’s driveway. Mr. Keenan also asked if the FEMA lots could ever be built on again, in which Ms. Ellis-Vitalis stated that they are unbuildable. Mr. Vafier stated that typically the acquisition from the FEMA program has deed restrictions on them that limit them to conservation. Ms. Ellis-Vitalis demonstrated on the aerial map that all the lots on Candlewood Drive.
are vacant. Mr. Moore stated that he noticed on one of the images provided, that there was already an accessory
structure on the property. He asked how many accessory structures are permitted or will it be removed to allow for the new structure to be built. Mr. Vafier answered that there is no limit on how many accessory structures are allowed provided they are meeting the requirements.
Mr. Moore swore in the applicant, Mildred Hershner.
Mrs. Hershner stated that the presentation made by Ms. Ellis-Vitalis was excellent and asked if there were questions for her being the applicant. Mrs. Hershner mentioned that because of the isolation at the very back of
the neighborhood because there are no homes around that it would not impinge on the uniformity of the neighborhood. If there were a lot of homes a change in the setback would be very obvious, but since there are
no homes there, it will certainly not be obvious.
Mr. Moore asked if there was anyone in opposition who would like to speak in which there was no reply. Mr. Moore moved to motion and close the public hearing and move into deliberation.
Mr. Keenan motioned, and Mr. Waddell seconded. The Board agreed unanimously to close the public hearing. PUBLIC HEARING CLOSED
BOARD DELIBERATION
Mr. Keenan motioned to approve the request based on the applicant's findings of fact as noted below. Mr. Waddell seconded the motion.
The Board's decision was based on the following conclusions and findings of fact:
1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 12.5’ minimum street side yard setback requirement per Section 3.2.9.D (3) of the
New Hanover County Unified Development Ordinance, that an unnecessary hardship would result. This conclusion is based on the following FINDINGS OF FACT:
• The subject property’s driveway enters the property from the Candlewood Drive extension.
• The garage may exceed 600 sf, which would require a waiver of the 12.5-foot side setback. If the house were an interior lot, the applicant could build a garage/workshop 5 feet from the property line, preserving more usable backyard space.
• Since the property is not really a functioning corner lot, it is an unnecessary hardship to have to
leave a 12.5-foot side setback, rather than just a 5-foot setback. The 5-foot setback would still
leave a 10 foot right of way before the pavement/gravel.
2. It is the Board’s conclusion that the hardship of which the applicant complains results from unique circumstances related to the subject property, such as location, size, or topography. This conclusion
is based on the following FINDINGS OF FACT: 3.
• Because of its location, 131 Springhill Road is the only property in the subdivision that has no neighboring houses on the side where the owners are requesting a side lot variance waiver, and
no houses directly across the street, in addition to the fact that this dead-end section of road is no
longer state maintained. The reasons for having a 12.5-foot setback rather than the usual 5-foot side setback do not exist for the property.
• It would be an unnecessary hardship to have to comply with a 12.5-foot setback along this dead-
end Candlewood Drive Extension.
4. It is the Board’s conclusion that the hardship did not result from actions taken by the applicant or the property owner. This conclusion is based on the following FINDINGS OF FACT:
• No actions of the property owner made the dead-end section of Candlewood Drive have only one lot: the subject property. The homes across the street on Candlewood had been removed because of flooding, and the development of the adjacent property into a private gated neighborhood
surrounded by a 10-foot-high fence precluded any extension of the section of Candlewood drive
next to the subject property. 5. 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 setback requirements are meant to preserve a uniform look to the neighborhood.
• The requested side setback changes from 12.5 feet to 5 feet along the dead-end section of
Candlewood Drive will not change the look of the neighborhood.
• There is no house directly adjacent to the subject property on Candlewood Dr. that would show a difference in the setback. There is a 10-foot-high wood privacy fence behind the subject property, so the side setback variance would not be visible by those homes.
will not affect any close neighbors.
• Public safety will not be affected, and substantial justice will be achieved.
There being no further business before the board, it was properly moved and seconded by to adjourn the
meeting. All ayes.
MEETING ADJOURNED. Please note the minutes are not a verbatim record of the proceedings.
Executive Secretary
Chairman Date
VARIANCE REQUEST
BOARD OF ADJUSTMENT
December 6, 2022
BOA-976 Page 1 of 4
CASE: BOA-976
PETITIONER: Douglas Brandon Paluck
REQUEST: Variance from the 30’ side setback per Table 3.1.3.C.1 of the New Hanover County
Unified Development Ordinance.
LOCATION: 5406 Castle Hayne Rd
PID: R01113-008-002-000
ZONING: R-15, Residential District
ACREAGE: 0.82 Acres
BACKGROUND AND ORDINANCE CONSIDERATIONS:
The applicant is requesting a variance related to the interior side setback to transition the existing
residential structure into a commercial Bar/Nightclub, or “bottle shop” defined by the Unified Development
Ordinance (UDO) as:
A non-restaurant establishment that generates more than 49 percent of its quarterly gross receipts from
the sale of alcoholic beverages for on-premises consumption. Bars and nightclubs may provide live
music (bands) and other music, dancing, and games of skill such as pool or darts for use by the patrons
of the establishment.
This transition to the proposed use is contingent upon the successful rezoning of the property from an R-15,
Residential District to a B-2, Regional Business District. Per the UDO’s Principal Use Table, the proposed use
will be permitted by right in the B-2 zone.
Figure 1: Table 4.2.1 of UDO
VARIANCE REQUEST
BOARD OF ADJUSTMENT
December 6, 2022
BOA-976 Page 2 of 4
Upon successfully rezoning the subject property, the existing structure will be remodeled with the intent to
serve as the bottle shop. However, at 12.3 feet from the neighboring northern lot line, the existing structure
would not meet the required interior side setback of 30 feet from the adjacent parcel to the north, zoned
as R-15.
The applicant is proposing a variance to Table 3.1.3.C.1 of the UDO which would apply to the site should it be
zoned B-2:
Figure 3: Table 3.1.3.C.1
12.3’ Setback
Proposed Bottle Shop
Figure 2: Applicant's Site Plan with Staff Markups
VARIANCE REQUEST
BOARD OF ADJUSTMENT
December 6, 2022
BOA-976 Page 3 of 4
With a rezoning of the property to B-2, the setback between the proposed bottle shop and the residentially
zoned adjacent parcel to the north will be required to be no less than 30 feet. Thus, the applicant is
requesting a variance of 17.7’ from the required side yard setback on the northern property line.
The applicant contends that if the lot is commercially rezoned, difficulties will arise in adequately
developing the property due to the location of the existing structure and the residentially zoned adjacent
parcel to the north, requiring a buildable envelope that is not possible with the current UDO’s guidance on
interior side and rear setbacks from residential properties.
The subject property consists of 0.82 acres located on the eastern side of Castle Hayne Road and is
currently zoned R-15 Residential District. To the north, the adjacent parcel is zoned R-15. To the south, the
parcel is dual zoned B-2 and R-15. West, across Castle Hayne Rd., the parcels are B-2 and to the east
across Blossom St., the parcels are zoned R-15.
Figure 4: Zoning Map
VARIANCE REQUEST
BOARD OF ADJUSTMENT
December 6, 2022
BOA-976 Page 4 of 4
In summary, the applicant is requesting a variance of 17.7’ to accommodate the rezoning of the parcel
from R-15 to B-2. The applicant contends that the variance is necessary due to factors including limited
buildable area to develop the site with a commercial use and the presence of an existing structure that
does not meet the necessary 30-foot side (interior) setback required of the B-2 zoning district when adjacent
to a residential platted lot.
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
Zoning 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 | William Mitchell
Michael Keenan, Sr. | Maverick Pate | Luke Waddell
BOARD ALTERNATES
Richard Kern | Michael Sanclimenti | Ed Trice
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-976
The Board of Adjustment for New Hanover County, having held a public hearing on December 6, 2022 to consider
application number BOA-976, submitted by Douglas Brandon Paluck, applicant and property owner, a request for a
variance from the 30’ interior side yard setback requirement per Table 3.1.3.C.1, of the New Hanover County Unified
Development Ordinance (UDO) to use the property located at 5406 Castle Hayne Road in a manner not permissible under
the literal terms of the UDO 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 30’ interior side yard setback requirement per Table 3.1.3.C.1, 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 New Hanover
County Unified Development Ordinance to allow a 17.7’ variance from the 30’ interior side yard setback required per Table
3.1.3.C.1 of the New Hanover County Unified Development Ordinance be GRANTED/DENIED, subject to the following
conditions, if any:
• Approval of the accompanying Conditional Use Request consisting of a rezoning of the property from an
R-15 Residential District to a B-2, Regional Business District.
ORDERED this 6th day of December 2022.
____________________________________
Cameron Moore, Chairman
Attest:
________________________________
Kenneth Vafier, Executive Secretary to the Board