MAY BOA MinutesMINUTES
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 Govemment Center Drive, in the Lucie Harrell
Conference Room, Wilmington, NC, on Tuesday, May 23^,2023.
Members Present bers Absent
William Mitchell, Vice-Chair
Michael J. Keenan. Sr.
Richard Kern
Ed Tnce
Cameron Moore, Chair
Maverick Pate
Michael Sanclimenti
Ex Officro Mernbers Present
Ken Vafier, Planning Manager
Karen Richards, Deputy County Attomey
Wendell Biddle, Current Planner
Jeiny Tisbert, Administrative Specialist
The meeting was called to order at 5:30 P.M. by the Vice-Chair. Mr. William Mitchell.
FIRST ORDER OF BUSINESS
Vice-Chair William Mitchell 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 ofthe County's
interpretation in enforcement ofthe Unified Development Ordinance. The appellants have thirty days in which
to appeal any decision made by the Board to Superior Court.
The Board unanimously adopted the minutes.
Mr. Mitchell swore in Wendell Biddle, Cunent Planner, and Ken Vafier, Planning Manager
CASE BOA.979
Mr. Vafier stated that since there were not enough members ofthe board present to be a full board, the
applicants would like to request a continuance.
Mr. James Wicker from Wicker and Marsh formally requested an extension to the June 27th, 2023 meeting
Mr. Keenan moved to extend the continuance. Mr. Trice seconded the motion.
The Board unanimously moved to grant the continuance.
Mr. Mitchell motioned to adopt the April 25s minutes. Mr. Keenan motioned to approve the minutes, and Mr.
Kern seconded the motion.
CASE B0A-98I
Mr. Wendell Biddle presented the case, stating that the variance is a request to grant reliefofthe 3-year period
for withholding development approvals as per New Hanover County's Unified Development Ordinance section
5.3.2.8.220 Crou,atan Road is located in Castle Hayne, south of Madeline Trask Drive and north of Hermitage
Road. The parcel is approximately 4,100 feet east ofGeneral Electric and 5,000 feet northeast ofthe Castle
Hayne Road and I-140 interchange. The property in question is zoned I-1, Light Industrial, as are the lots to the
north, east and south. The adjacent westem lot is zoned Residential, R-20.
Mr. Biddle provided an aerial map detailing the general land use pattem. showing the subject property as a
vacant parcel, and menlioned that the general area is a business park.
Mr. Biddle stated that in late February of this year, staff received a citizen's complaint conceming the clear
cutting ofall 4.42 acres without first obtaining the required tree removal permits or documentation exempting
the applicant from said requirement. On March lst a stafflead site visit confirmed the allegation of unpermitted
land clearing. Staffhad verified that neither a Tree Removal Permit nor a letter of exemption for timber
harvesting had been received. At the site visit staff had workers cease all operations until further notice.
However, by that time the entire parcel was cleared ofall or substantially all regulated trees. Section 5.3.5 of
the UDO details the requirements for tree removal and or land clearing. These provisions stipulale that: No
person direclly or indirectly, shall remove any regulated tree identi,fied in Section 5.3.4, Tree Retention
Standards, from public or private property withoutfrst obtaining a tree rcmoval permil.
Unless a waiver, eremption, or orceplion applies, a lree removal permil authorizing removal is required before
any clearing, grading, or other authorizations may Ss issued, including building permits.
Mr. Biddle stated the UDO Section 5.3.2 details guidelines for forestry and property clearing within New
Hanover County. Subsection B states that: \Vhile exempted forestry activities are not subject to the
tree retention requirements of this section, failure to obtain an exemption to a tree removal permit prior to any
timber harvest or other property clearing aclivity will result in the denial of a building permit, site plan approval,
or subdivision approval for a period ofthree years, regardless of any change in ownership, if the harvest results
in the removal ofall or substantially all documented, siglificant, or specimen trees from the tract. The denial
period shall be increased 10 five years in situations where removal of all or substantially all regulated trees was a
willful violation of these County regulations.
Mr. Biddle conlinued by slating that in the e\.ent a property ou,ner wishes to remove a Regulated Tree, Section
5.3.7 ofthe UDO gives guidanoe on calculating mitigation. noting the requirements for mitigalion by replanting
or payment inlieu to the county's tree improvement fund.
Mr. Biddle concluded by srating that the applicant contends thal a misunderstanding ofthe county's tree
removal regulations led him to believe that he did not need a permit to clear his land. After receiving a Notice
of Violation. the applicant hired a tree service to survey the adjacent parcels with the intention to retroactively
offset mitigation. The applicant is proposing to remedy the violation u'ith a combination ofreplanting and
payment rnto the County's Tree Improvement Fund. The applicant will have the specifics as to what that will
cntail. In summary, the applicant is requesting that the board grant relief from the 3-year withholding of
Mr. Biddle stated that the stafls investigation verified that all the trees, stumps, and root systems within the
parcel had been removed and piled into multiple mounds throughout the site. Staff verified that the majority of
the trees in the mounds identified would have been classified as regulated trees. Tree calipers were used to
measure several ofthe largest trees at what was an approximate Diameter at Breast Height (DBH). Stafffound
that several ofthe measured trees rvould have been classified as significant trees. Table 5.3.4.A ofthe UDO
classifies the county's regulated trees between Documented, Significant, and Specimen. The trees that would
have been classified as sigrificant found on the subject parcel would have fallen into the category of Other
Coni"fers as they were loblolly pines and had a DBH of 24" or greater.
developrnent approvals
Mr. Keenan asked what lhe fee would be for mitigation
Mr. Biddle ansrvered by stating that based offthe survey that was provided, the low end of the fee that was
calculated would be $ 14,400.
Mr. Vafier stated that this site was cleared of the trees so there is not a specific accurate figure of what the
mitigation lvould have rvould be. The $14,400 is derived from a tree inventory done of two adjacent parcels.
That found at least 1 I Loblolly Pines of24 inches in diameter at DBH or greater. Staffcalculated the $14,000
fee based off I I trees over 7 odd acres from the two adjacent parcels that came dom to about 2/3 ofa tree per
acre. When extrapolated to the 4.42 acres on that site, it is about 3 significant trees at 24 inches DBH using the
$200 per inch.
Mr. Keenan asked what the cost would be ifthe applicant planted some trees along with paying a portion ofthe
fee.
Mr. Biddle answered that if a strict replanting based off of the mitigation Seclion A it would be a minimum of
144 trvo-inch diameter sapling similar to the ones that were removed.
Mr. Vafier slated that lhe applicant will have the opportunity to address this as well bul, in the application, there
was not a specific proposed number oftrees or dollar amount to provide that mitigation.
Mr. Mitchell sworc in the applicant William Murrell
Mr. Murrell stated that this was the first time he had bought undeveloped land. When he purchased it, it had
standard pines on it, and he approached a logging company and asked them because he was told that you can
sometimes get them to log it and they would give you a check or you could get cleared for free. He had asked
the logging company u,hat kind of permit he was going to get and u'as told a permit wasn't needed. What I have
become abundantly clear is that he doesn't need a permit, but I absolutely do as the landowner. Mr. Murrell
stated he had no intentions of constructing any permanent structure, rather to create a gravel parking space for
equipment associated u,ith his business. Mr. Murrell stated it rvas not done intentionally and would ask for
suggestions on hou lo mitigate for the unauthorized clearing.
Mr. Mitchell asked if there were any questions
Mr. Murrell stated that because this was the first time, he had purchased undeveloped land, no.
Mr. Keenan asked to clarifo what a laydown yard is.
Mr. Murrell stated that a laydoum yard is essentially a rock parking area. Heary machinery like tankers. trailers
or excavators, that cannot be parked on pavement.
Mr. Keenan asked Mr. Murrell what type of business he is in.
Mr. Munell answered that he owns an environmental cleanup company'
Mr. Mitchell askcd ifthcre were any further questions for the staff.
Mr. Trice asked if Mr. Murrell had ever run into the issue where a permit was needed, and he did not apply for
it.
Mr. Keenan asked if Mr. Murrell was aware of proxy and permittlng.
Mr. Munell stated that his employees are, but he is not.
Mr. Mitchell asked if there were any other questions from the Board to the applicant.
The Board began to deliberate on the case.
Mr. Keenan stated that he believes that they should protect the adjacent landowners. There should be replanting
oftrees on both sides at least halfuay up the property to protect the future use ofthe adjacent owners.
Mr. Kem agreed and stated that a mitigation plan is needed.
Mr. Trice also agreed that a plan should be in place.
Mr. Keenan asked if the staff has a recommendation on a mitigation plan.
Mr- Vafier stated that staffdoes not. What the staffreport indicated is that they could work with the applicant in
order to determine a plan. Whether it be 100% replanting, l00o% repayment, or a combination thereof, that
would be equal to what the applicant would have done if he had come in to get the tree removal permit. As
mentioned earlier staffdid not know the exact number oftrees but we could use that extrapolation method if the
Board were to see fit.
Mr. Vafier continued by stating that as for the recommendation ofa specific dollar amount for tree replanting,
the staffdoes not have that. There have been other instances where similar occurrences happened, and the
applicants have come forward to the Board and asked for reliefand those have been a combination in the past of
either a reduction of the three-year duration or some kind of mitigation fee. These have been various types of
apphcants. Some were individual landowners like Mr. Murrell. others were national home builders who were
prepared to pay a multi{housand-dollar fee. Mr. Biddle has those specific figures from the previous cases but
in this case. Staffhas not gotten into a specific dialogue with the applicant on a specific dollar amount that the
applicant would be willing to pay into or what the number oftrees he proposes to replant. Ifthe Board was
comfortable with the applicant working with the staff on determining a method of mitigation that would meer
the ordinance standards, staffcould see to it that either the number ofplantings or the dollar amount would
satisi/ that requirement.
Mr. Mitchell asked if that would need to be voted on by the Board
Mr. Vafier stated yes or that if the Board felt comfortable to just deferring that to staffto figure it out that's
acceptable also.
Mr. Keenan asked if a penalty can be injected
Mr. Vafier stated that there's no ordinance provision that gives a monetary penalty or any other option besides
the three-year or five-year if it rvas a willful violation which slaffdoes not think it was. That has been an issue
in the past and continues to be one and there is no other payment option, or a methodology solidified to
determine what that fee would be.
Mr. Mitchell asked tvhat the total estimated number of trees taken dou'n was and rvould those trees have been
permitted.
Mr. Bitldell provided photographs of the cleared area with mounds of removed trees. He answered that stafT did
not knorv hou,many wcre tuk", do*r. what staff extrapolated was approximately l1 significant trees beh^'cen
the two adjacent parcels. This was extrapolated to determine an approximate number ofsignificant trees that
might be found per acre on Mr. Murrell's parcel.
Mr. Keenan asked how we revert, as if he did have it permitted
IUr. Vafier stated that either by asking the applicant a number oftrees that he would be willing to replant, or a
repayment fee that he rvould be comfortable u'ith. The applicant rvould also have to address ifhe rvanled to
mitigate the clearing by replanting. repayment, a combination of the two ofthe Board has the ability to not
require any mitigation as rvell.
Mr. Mitchell asked if the $14.400 was a firm number and the number they would proceed with.
Mr. Vafier stated that is the number that using the extrapolation method that came from surveying two adjacent
properties.
Mr. Mitchell clarified a few options for the applicant. The Board is looking at a $14,400 fee or you replant
entirely. or a combination of the two. He asked Mr. Murrell that if the Board decides to move forward and let
you develop some mitigation plans how long that might take or would be rather pay the $14,400.
Mr. Murrell said that he is not in a position to negotiate. His biggest concem is trying to avoid the 3-year
penalty.
Mr. Mitchell asked Mr. Munell if he would like to find out how much 120-140 trees would cost to replant and
then bring it to the Board.
Mr. Murrell stated no, because he still has to get the ESC plans and still has to go and finish the stonrwaler
basin. He stated that ifhc can get the variance, he can clear out the remaining trees. Work has been stopped and
nothing has been done to the site since. He *ould be able to clean up those and also go ahead and finish the
erosion sedimcnt control put in the storm rvater basin and also stabilize the site.
Mr. Mitchell then closed the public hearing and asked the Board to move into deliberation
PUBI,IC HEARING CI,OSED
I]O,\RI) DEI-I BER,'\'[IO\
Mr. Vafier stated that if the Board accepted the $14,400 as the base number, they could work with the applicant
on a combination ofeither replanting, repayment, or a combination ofthe two. He suggested that if the Board
u,as amenable to granting the reliefofthe entire three-year, a potential motion to grant reliefof3 year
rvithholding u.ith penalties contingent upon the applicant providing mitigation with the terms ofthe ordinance at
the approximate number oftrees suggested during the testimony at the hearing would suffice.
Mr. Keenan motioned to approve the variance referencing the example motion stated by Mr. Vafier, and Mr.
Trice secontled. The Board voted unanimously to grant the variance.
The Board's decision !r'as based on the following conclusions and findings offact:
Attomey Karen Richards stated that the Board can ask the applicant to develop a few mitigation plans to choose
liom.
It is the Board's conclusion that, if thc applicant complies n'ith the literal terms of the ordinance,
specificalll the u'ithholding of permits penaltl per Section 5.3.2.B of the Nen, Hanover Countl'
Unified Development Ordinance, that an unnecessar) hardship rrould result. This conclusion is
based on the following FINDINGS OF FACT:
The applicant intends to move forward with a productive use for the property as a laydown yard
for equipment and without being able to use the property as such a planned expansion of the
business could not occur.
Clonlinued business operations would be difficult, and difficulty would arise with paying for a
property for three years without being able to use it.
2. lt is the Board's conclusion that the hardship of rvhich the applicant complains results from unique
circumstances related to the subject propertv, such as location, size, or topographl', This conclusion
is based on the following FINDINGS OF FACT:
The site is suitable as a parkingllaydown yard, is industrial, will not pass a perc test, and does not
have wastewater available to it.
. An office use is not suitable. and if il cannot bc used for its intended use. the applicant rvould
have to try to find an additional parcel to purchase and develop, rendering this property unusable.
3. 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:
o The actions leading to the clearing were a result ofa misunderstanding ofpermitting
rcquirements rather than a willful violation.
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 safetf is secured, and substantial justice is achieved.
This conclusion is based on the following FINDINGS OF FACT:
. The applicant has hired a landscaping company to provide a tree survey oftwo adjacent parcels
to provide staffwith an estimate ofwhat species oftrees and size were on the subject property,
thereby providing an approximate figure for mitigation.
. The applicant is willing to provide appropriate mitigation consistent with the UDO's
requirements, extrapolated by staffto amount to the replanting of 144 conifer trees at 2" or
greater Diameter at Breast Height (DBH, payrnent into the County's tree mitigation fund at a
total cost of$14,400, or a combination thereof.
The Board granted the variance subject to the following condition:
Mitigation fbr the estimated three significant trees on the parcel be met whether it be l00o/o replanting,
100% payment into the County's Tree Fund, or a combination of the two. Replanting mitigation would
consist ofa total of 144 conifers measured at2" in Diameter at Breast Height or greater. Pa).rnent into the
County's Tree Fund rvould be a total of $ 14,400.
CASE BOA-982
Mr. Vafier presented the case, stating that this is a requesl for a variance from the 75-foot conservation resource
setback requirement in the Unified Development Ordinance in order for the applicant to construct a single-
family residence rvith a pool on the subject property. Subject property is located at 949 Radnor Road, which is
in the Iniet Watch community located in the southem portion of the county off Carolina Beach Road. This is
approximately I 1/2 rniles north of the Snows Cul bridge. The site is zoned R-15, Residential District which is
representative ofthe larger general zoning designation in this area. It is characterized by single family
residential structures with lot sizes around 15.000 square foot or less with the density not to exceed 2.5 units per
acre.
Mr. Vafier sholr.ed an aerial photograph and described the general land use pattern which again is single family
residential lots u,hich are adjacent to the Inlet Watch Yacht Club. The subject property is one ofthree or four
lots on the cul-de-sac on the eastern end of Radnor Road which is adjacent to the Intercoastal Waterway. North
and East of these lots is the salt marsh area. A sah marsh is one of the designated conservation resources for
u,hich the UDO contains additional perlormance controls that are relaled to setbacks of impervious surfaces,
structures, and retention of runof'f.
Mr. Vafier continued by stating that the proposed structure is a three-story dwelling with an l8 x 32 ground
level pool in the rear yard which lies on the eastem portion ofthe lot again adjacent to the salt marsh. On the
image shou'n, the green line at the top ofthe screen, which is actually the east side of the lot represents the land
extent ofthe salt marsh or conservation resource. The 75-foot offset marks the 75-foot setback which is
irregular orjagged there because there is a bulkhead.
Mr. Vafier continued, by staling that as proposed, the northern edge ofthe pool is going to be on the left-hand
side and encroaches approximately 26.5 feet into the conservation resource setback with an approximate z}-foot
encroachmenl on the southern edge. In total this is approximately 715 square foot of impen ious area which is
comprised ofcourse ofthe entirety ofthe pool and a portion ofscreened in porch that encroaches into the
setback. In addition to the presence of the salt marsh consen ation resource the property does have a 30-fool
drainage easement along the southem property line l5 of which is on this property fifteen ofwhich is on the
property to the south which further limits the ability to utilize this area ofthe lot for development. The property
is within a VE flood zone so all construction would have to meet those requirements. A CAMA minor permit is
not required as the normal high-water line lies further than 75 feet from the proposed structure.
The UDO conlains performance controls on conservation resources which requires all structures and impervious
surfaces to be set back a minimum of75 feet from the salt marsh.
Mr. \hfier provided photos of the lot
Mr. \rafier concluded his presentation by stating that, the applicant contends that the variance is necessary as the
presence oflhe salt marsh, the drainage easement, the irregular shape of the rear bulkhead, and the narrow
configuration ol-the fronl ofthe lot contribute to the limited buildable area. The applicant further states that the
owners havc modified the proposed home from its original design in order to reduce the total amounl of
impervious area opposed lo encroach into the consenation resource setback as well as move it up front as best
lhey can. In summary,, they are requesting a variance ofabout 26.5 feet from the 75-foot setback in order to
allou rhe encroachment of the proposed single-family home and pool in the conservation resource set back area,
Mr. Mitchell asked if there were questions for staff.
Mr. Mitchell swore in the applicant Jason Akins.
Mr. Akins stated that he was there on behalf of the owners Len and Kelly Lecci and reiterated what Mr. Vafier
stated.
Mr. Mitchell asked if there were any questions.
Mr. Keenan asked in relation to the houses on either side, is the house farther than the other adjacent homes.
Mr. Akins stated that it is further west compared to the neighboring homes that have pools that go right up to the
bulkhead.
Mr. Keenan asked how the other homes were approved to build adjacent the bulkhead.
Mr. Vafier stated that he did extensive research into the other neighboring homes and could not find the
definitive reason why. There could have been a different interpretation ofthe applicability ofthe conservation
resource provision over the years particularly as it relates to pools or accessory structures or dates of the
constructions ofthe homes. Staffalso did not have on-site measurements of the distances to the resource from
these structures. He stated that staff is aware that this subdivision was platted in July 1987 which is after the
effective date ofthe COD and has not found the reason why it should not apply this one. In terms of the
adjacent property, the County Engineer was consulted and if the flow is not blocked it could be a matter of
having the homeowner be required to maintain the easement. If there is a requirement to remove items or
pursue the abatement process, lhat is also a requirement would be that can be explored by the county
Engineering Department.
Mr. Mitchell asked if there \\'ere any other questions for the applicant
Hcaring none, the Board rnoved into deliberation
PI.IBLIC HEARING CLOSED
BoARD DELIBERATION
Mr. Keenan motioned to grant the variance u'ith the applicant's proposed findings offact and one condition, and
Mr. Trice seconded the motion. The Board voted unanimously to grant the variance.
The Board's decision was based on the following conclusions and findings of fact
l It is the Board's conclusion that, if the applicant complies with the literal terms of the ordinance,
specifically the 75'minimum conservation resource setback requirement per Section 5.7.4.8.1 ofthe
n*erv Hanover Count) Unified Development Ordinance, that an unnecessar)' hardship would_result.
This conclusion is based on the follou'ing FINDINGS OF FACT:
. The owners have spent considerable resources to build the home.
o The normal high-water ltne is well offthe property at a distance that a CAMA Minor Permit is
not required.
o The odd shapc of the pre-existing bulkhead results in rvellands hal'ing a "zig-zag" configuralion
rvhich causes the resource setback line lt: cross a portion of the deck.
. The home was originally planned to be l5'wider and the size has been reduced significantly to
accommodate the site's f-eatures.
2. It is the Board's conclusion that the hardship of which the applicant complains results from unique
circumstances related to the subject propert-v, such as location, size, or topographr,. This conclusion
is based on the following FINDINGS OF FACT:
o The "zig-zag" wetland line is due to the pre-existing retaining u,all, and a l5'drainage easement
exists along the southem property line.
o Thc property has a "pie" shape to it rvhich further limits the buildable area toward the front ofthe
lot, and it is peculiar to have the normal high-u,ater linc so far from the wetlands line.
3, lt is the Board's conclusion that the hardship did not result from actions taken by the applicant or
the property owner. Tbis conclusion is based on the following FINDINGS OF FACT:
o The hardships menlioned existed before the property was purchased. Thus, the owners knew a
variance might be necessary and altered their primary desired design and have tried to keep most
ofthe structure excepl for primarily the deck and pool out ofthe conservalion resources setback.
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 safetf is secured, and substantial justice is achieved.
This conclusion is based on the following FINDINGS OF FACT:
o Given that the spirit, purpose, and intent of this section ofthe ordinance in part is to allow water
to percolate through soil before reaching wetlands and the applicant will be mitigating runoff
towards the wetlands with infiltration lrenches, public safety will be secured, and substantial
justice will be achieved by granting the variance.
There being no further business before the Board, it was properly moved and seconded by to adjourn the
meeting. All ayes.
NTEETINC ADJoURNED.
Please note the minutes are not a verbatim record ofthe proceedings.
Executive Secr
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