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02-27-24 Signed BOA MinuesBOARD OF ADJUSTMENT The New Hanover County Board of Adjustment held a regular and duly advertised meeting at 5:30 PM at the New Hanover County Government Center Complex, 230 Government Center Drive, in Conference Room 222, in Wilmington, NC on Tuesday February 27, 2024. Members Present William Mitchell, Chair Will Daube Caleb Rash Ed Trice Michael Sanclimenti Greg Uhl Members Absent Michael Keenan, Sr., Vice-Chair Jonathan Bridges Ex Officio Members Present Ken Vafier, Planning Operations Supervisor Karen Richards, Deputy County Attorney Love Ott, Associate Planner Lisa Maes, Administrative Coordinator Damion Fulford, Administrative Specialist Millicent Ott, Associate Planner The meeting was called to order at 5:30 PM by Chair William Mitchell. FIRST ORDER OF BUSINESS Chair 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 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. Chair Mitchell asked if there were any corrections to the last meeting’s minutes, to which a board member noted that there were no corrections. Chair Mitchell called for a motion to accept the January 23, 2024 meeting minutes as written or with noted changes. Mr. Rash made the motion to approve the minutes as written to which Mr. Daube seconded. The board unanimously adopted the minutes. Chair Mitchell swore in Planning Operations Supervisor Ken Vafler, Associate Planner Love Ott, and applicant Greg Dobur. Case BOA- 987 Ms. Ott presented the staff report on the case. She noted that the applicant is requesting a variance of 20’ from the 6’ maximum height requirement and a variance of 84 square feet from the 150 square foot maximum area requirement per the New Hanover County Unifled Development Ordinance. This property is zoned B-2, Regional Business District and is located at 5501 Carolina Beach Road at the intersection of Carolina Beach Road and Piner Road. Per the applicant, the proposed signage would make access safer to enter the Villages of Myrtle Grove Shopping center from Carolina Beach Road. Ms. Ott provided a graphic with the proposed sign located at 5501 Carolina Beach Road. The aerial photo indicates the location of the existing villages of Myrtle Grove Shopping Center sign along Carolina Beach Road. The proposed sign will be identical to the current villages of Myrtle Grove, as shown on the right. Ms. Ott flnished her presentation by summarizing the applicants’ request for a variance of 20’ in height and 84 square feet in area to provide 10 more tenant opportunities. As proposed, the sign will allow more panels to accommodate all available spaces as well as more ingress and egress points to provide safer access into the shopping center from Carolina Beach Road. Ms. Ott then asked if the Board had any questions and that Mr. Dobur had prepared his own presentation. Chair Mitchell asked members of the board if there were questions for staff at this time. Mr. Dobur gave the board a brief history of the ownership of the property and what the future use of the area will be. He proceeded to show the members of the board images of the existing sign and how there are only 2 remaining panels for the 8-10 future businesses. Mr. Dobur explained that with Target going into this space, they are getting interest from regional and national tenants to occupy the remaining spaces. Mr. Dobur provided the board with the importance of having the signage at this entrance/exit way to help distribute the traffic through the 4 possible entrance/exits and to take the impact off the Kings Highway. Additionally, he pointed out that with the addition of this sign it will provide 9 panels for the roughly 10-11 potential vacant opportunities for new national and regional retailers which will cover almost the entire shopping center. Mr. Dobur asked the members of the board if they had any questions. Mr. Uhl mentioned that Ms. Ott had mentioned safety improvements and how the applicant views this contributing to improving safety. The applicant mentioned that it is about the distribution of traffic and educating the public, especially the out-of-town customer and seasonal traffic. Mr. Daube asked if the previous sign was also issued on a variance, and if there is precedent that it's been done before for the shopping center. Mr. Dobur responded it was because with an unanchored center, without visibility, there are a lot of service-oriented tenants, and they needed that signage up front. Mr. Rash had a question for staff regarding if there was a particular reason why B-2 is limited to 6’ in height for signs. Ms. Ott provided the reasoning that on Carolina Beach Road signs are limited to 6’ and that in 2001 there was a text amendment to the UDO that said any free-standing signs on Carolina Beach Road have the limitation of 6’ and150 square feet. Mr. Uhl asked staff if other variances like this have been issued. Mr. Vafler answered for staff, stating that historically there has been a variance for the wall signage at the Home Depot in this shopping center and the Walmart in Porters Neck received a variance for signage as well. Mr. Uhl then asked if this tower sign variance would be unique. Mr. Vafler explained to the board that every and any variance is unique to the speciflc circumstances of that individual application. There can be some degree of precedent in a variance, but in terms of the location of the shopping center. The only other comparable one that we would have been the 2017 variance on the existing site. Mr. Daube asked if the signs were the same height, and Mr. Dobur answered that the proposed sign is 26’ and the one that is currently there is 20’ which was taken into consideration when making this request because if they want to give the national and regional retailers what they want. Chair Mitchell asked if the other sign is wider. Mr. Dobur responded that was correct that the proposed sign is 13’ wide and the older existing one is 16’ or more, trying to keep it consistent with the current Wells Fargo sign. Mr. Daube asked about the existing 6’ height limitation along Carolina Beach Road. Mr. Vafler responded that his knowledge of the amendment was primarily driven by aesthetics. Safety is a factor, but there are additional controls on safety with the signs there are building code requirements, lighting requirements, site triangle requirements that the NCDOT puts forth. Chair Mitchell asked the board if there were any other questions. Mr. Uhl asked around town where one might flnd other signs that are comparable in size and scale. Mr. Vafler replied to these types of signs are usually found near the large regional shopping centers that have many tenants. Mr. Mitchell stated probably somewhere like the Walmart on College Road. Mr. Uhl followed up by asking if it would be keeping up with the application in the areas. Mr. Vafler conflrmed that yes it would be in line, but there is a limitation on height and setbacks in the areas. Chair Mitchell asked if there were any further questions. Chair Mitchell asked if there was anyone in opposition. Chair Mitchell closed the public hearing. PUBLIC HEARING CLOSED BOARD DELIBERATION Chari Mitchell stated that there was a need for such signage, especially with the upcoming tourist season, that it is easier to see a large sign rather than looking down at a GPS. Mr. Uhl mentioned that it would already be occupying a spot of an existing sign. Mr. Daube noted that it would not be blocking any kind of line of sight that makes the access any more dangerous. Mr. Uhl stated that it would be reviewed by NCDOT, and the Chair agreed that yes NCDOT would review at some point. Chair Mitchell asked the board if anyone would like to make a motion. Mr. Rash made a motion to approve without conditions. Mr. Daube seconded the motion. Mr. Vafler asked if the applications proposed flndings would be adopted as the board’s adoptive flndings. Chari Mitchell acknowledges that the proposed flndings would be adopted as the board’s flndings. The Board’s decision was unanimous approval with a vote of 5-0. The Board’s decision was based on the following conclusions and flndings of fact. 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 20’ from the 6’ maximum height requirement per Section 5.6.2.J.4.A.3 and the 84 square feet from the 150 square foot maximum area requirement per Section 5.6.2.J.4.A.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 existing freestanding sign does not provide enough panels to promote new businesses and invite new businesses to the shopping center. • Adding another freestanding sign will allow more ingress and egress points to provide safer access to the shopping center from Carolina Beach Road. • Section 5.6.2.J.4.A.3 limits freestanding signs along Carolina Beach Road not exceeding 6 feet in height and 150 square feet in area. 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 the location, size, or topography. This conclusion is based on the following FINDINGS OF FACT: • The road visibility to the wall signs on the buildings is very limited from Carolina Beach Road. • There are multiple tenant opportunities, the existing freestanding sign does not have panels to offer potential businesses to advertise. • The subject parcel and the tenants are separated from Carolina Beach Road by outparcels that were developed after the shopping center was developed. 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: • The development of the outparcels since the shopping center was developed are not actions that could be controlled by the applicant or property owner. • More tenants wanting to move into open spaces at the shopping center is out of the control of the applicant or the property owner. 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 the public safety is secured and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT: • The variance request would result in a sign that is consistent with the height and area that would be allowed for a sign if it was not subject to the special restrictions on signs on Carolina Beach Road. • Similarly sized signs that are legal nonconforming exist in the vicinity of the subject sign site. • The requested size and height of the sign would not pose a threat to public safety. No additional conditions were placed on the approval. Case BOA-988 Chair Mitchell swore in Planning Operations Supervisor Ken Vafler, Associate Planner Millicent Ott, applicant Deanne Meadows, Cindee Wolf, and public speaker Ryan Meckler. Ms. Ott presented the staff report on the case. She noted that the applicant is requesting a variance from the 25’ side street setback and 45' rear set back provisions located in the UDO. This variance request is to allow for an existing structure to meet the setbacks in preparation for a rezoning submittal. The parcel under review is in the northern portion of New Hanover County, speciflcally at 4737 Castle Hayne Road, which is located in between Crowatan and Parmele Roads. The subject lot is approximately a mile north of the I-140 interchange and GE campus. Ms. Ott provided a zoning map that showed the subject parcel which is situated in a mixture of zoning districts consisting of residential and commercial, Office and Institutional, and Neighborhood Business. She made note that the subject lot is zoned RA and is northwest of two commercial O&I particles surrounded by R-20, and that there are two lots just northeast zoned B-1 and abutting the subject parcel by RA to the west. Ms. Ott made note that the applicant was not here to consider a rezoning, and that the applicant is requesting a variance from the 25’ street side setback and from the 35’ rear setback so that the existing structure can be considered as a legal non-conformity in the event of the parcel being rezoned to (CZD) B-2. She made note to the board that the applicant’s proposed site plan illustrates the current side street setback of 21.7’ and rear setback ranging from 0.8’ to 6.95’. Table 3.1.3.C.1 details the increased rear setback when a B-2 district is adjacent to a residential zone. Table 3.4.5.D details the increased street side setback if successfully rezoned to B-2. Table 4.2.1 of the UDO shows that the land use, Vehicle Service Station, Minor, encompasses the applicant’s intent of continued use. This land use, though not permitted within the RA district, is permissible in the B-2, Regional Business District in which the existing structure would serve as the owner’s existing mechanic shop. Ms. Ott concluded her presentation by summarizing the applicant's request for a variance from the 25’ street side setback and from the 35’ rear setback to accommodate the existing structure in the event of the parcel becoming rezoned from RA to (CZD) B-2. This variance from the 25’ and 35’ setbacks is to serve along the proposed (CZD) B-2 is the entire 0.94 acres. Chair Mitchell asked members of the board if there were questions for staff at this time. Mr. Trice asked if there are any time frame discussion as far as the rezoning was concerned. Ms. Ott and Mr. Vafler informed the board that the applicant could expand on that. Mr. Uhl asked the applicant how the adjacent property to the west being used currently. Ms. Wolf, representing the applicant, mentioned that she has that in her presentation. Ms. Wolf proceeded with her presentation to the board, mentioning that the building on the property was constructed around 1976 and used to work on vehicles. Since the 1990’s, it has been operating as Dad’s Tire and in April of last year the residence on the property was destroyed in a flre. Ms. Wolf went on to explain that the request at hand is due to having an odd property boundary and where the existing structure exists. A 25’ setback off Sunday Road is not critical, however the rear set back of 35’ is. Ms. Wolf pointed out the chart that Ms. Ott showed the adjacent property is in fact vacant, and that would just be a 20’ set back, but it would also entail the 20’ buffer yard. Ms. Wolf provided graphics to the board that showed the distance between the uses between the existing structure. The applicant had offered to buy 20’ of property or coordinate an easement, however, neither of those options were considered acceptable. Ms. Wolf pointed out that the requirement of a transitional buffer which is a minimum of 6’ tall, whether it be fencing or plantings so that it is opaque within a year of planting and that an 8’ high solid fence would be a proposal the applicant would make. Ms. Wolf concluded her presentation with reminding the board that the application is not trying to expand or develop the existing use as it is, that the existing structure is certainly the hardship the applicant is facing and if the rezoning doesn't occur, nothing changes and that they are trying to mitigate, remedy and be a good neighbor. If the variance is successful, then the application can go into the rezoning process and any new development would be subject to all the current requirements. Mr. Trice asked if the fence would be sitting on the property line. Ms. Wolf responded that it would be the way she has it drawn due to the property line being skewed. Mr. Trice asked how many other proposals were rejected. Ms. Wolff responded she would let Mr. Meckler answer that question. Mr. Uhl asked the applicant if she knew what came flrst, the property line or the construction of that building. Ms. Wolf answered that she was not sure because Mr. Wilkins owned the whole property back in 1968 and over time it was divided into 3 different tracts. Over time the front tract had transferred hands. Mr. Uhl asked if the property was subdivided after the building was built. Ms. Wolf replied that it was. Chair Mitchell asked the members of the board if there were questions for Ms. Wolf at this time. Mr. Vafler addressed the chair informing him that in very similar requests that the board has seen in the last couple months, the approvals have had conditions, such that it would be contingent upon the conditional rezoning request and that the variance would only apply to the existing structures and not further development site for their development site would be subject to the current set back rules and any landscaping and buffering that accompanies that. Ms. Wolf followed up with that is what the applicant had in mind should everything go through the process. Mr. Uhl asked if the rear structure should be damaged, if it could not be rebuilt. Ms. Wolf answered that not as the structure is. Mr. Uhl followed, asking if it would have to comply with the ordinance. Ms. Wolf responded that the new one the applicant would propose should it go forward would comply with the ordinance and have the 35’ rear set back. Mr. Vafler informed the board that a legal nonconforming structure, if it is damaged in some type of event, there is a period of 180 days by which it could be reconstructed in its current location. Chair Mitchell stated that would only be for its current use, if it is a new development then it would go back to what the original was. Mr. Vafler responded that if it ceased to continue as a legal conformity in any way for 180 days it then could only be used for nonconforming purposes thereafter. Mr. Daube asked if there is a change in use than what is operating in there, if the building can remain. Mr. Vafler replied any change in use that is operating right now would have to be consistent with what is permitted in the district right now, which is very minimal because it is in a residential zoning district. Mr. Uhl asked if there are any circumstances under which the ordinance could require the removal of the building in the back. Mr. Vafler stated only if the use is discontinued for at least 180 days and it is proposed to be redeveloped. Mr. Uhl followed up saying that it is important to understand what the applicant was saying; that the property line was established while the building was there before the adoption of the UDO. Chair Mitchell asked if there were any other questions for the applicant and if Mr. Meckler wanted to speak. Mr. Meckler presented the board with photos, stating that there was an addition put on that does not seem to be part of the original structure. He proceeded to state that he was not sure when the structure was built and that it was there when he purchased his property. However, it was important to point out the addition is nonconforming and that it was too close to the road and the back of the property and did not appear to be structurally sound. He made note that he has animals that use the fleld as well. Mr. Meckler voiced his opinion about how he believed the addition was not part of the original structure and that it would not be right to grant them the variance. He also expressed to the board that the applicant’s proposal of an easement and paying for the trees and or a fence does nothing for him and if the board had any questions for him. Mr. Rash asked when the addition was put in. Mr. Meckler replied that in talking to people that have lived on Sunday Road longer than he has, that it was done by the person that owns the tire shop. Ms. Wolf mentioned to the board that she accessed the 1998 county aerials, and it was there then. Mr. Uhl asked what the space was used for. Ms. Wolff replied that it is used for storage. Mr. Uhl asked what the expected use of the new proposed buildings would be. Ms. Wolf answered that if it is rezoned, they would propose a fiexible 2-unit commercial space. Chair Mitchell stated that if it is rezoned everything would have to come into compliance. Ms. Wolff responded that was correct, everything would have to meet current codes. Chair Mitchell asked Mr. Meckler what his thoughts on the fence were. Mr. Meckler stated that they do not have room to do a fence otherwise it would be on his property. Ms. Wolf responded that there is 8” to put a fence in. Chair Mitchell stated that 8” is wide enough to put a fence in, and that Mr. Meckler would want use of his property and that the building was a bit of an eye sore from their side. He asked Mr. Meckler if an 8’ fence would satisfy that for him if it doesn’t go on to his property. Ms. Wolf stated that the fence would mitigate the issue. Mr. Meckler voiced that he would like to see the addition taken down, as it does not appear safe. A fence would be a step in the right direction, but they do not have enough room to put a fence in and maintain it because then the applicant would be trespassing on his property. He mentioned that they have already planted bushes that will grow over time and that the fence would kill his bushes. Chair Mitchell asked if there were any further questions. Chair Mitchell closed the public hearing. PUBLIC HEARING CLOSED BOARD DELIBERATION Ms. Wolf stated that they do not have much in a rebuttal except for the fact that they are trying to remedy the situation and in the process that would be a possibility. The applicant could still build back a house on the property as it is residential, but the applicant feels as though this is a positive as far as bringing something into compliance and the view of it would be mitigated by the method they are proposing. Ms. Meadows stated to the board that her husband did speak to the neighbors (Mr. Meckler) and there was a discussion about buying or purchasing part of the property and trying to flgure out a way to resolve the matter. Mr. Rash asked the applicant how important that is to add on to the operation right now. Ms. Wolf responded that it is not an add-on that it has been used for 25 years and is extremely important to the operation. During the rebuttal period there was discussion with both the applicant and Mr. Meckler about the current shrubs Mr. Meckler had planted and whether a fence would interfere with the root structure of his shrubs and if there was in fact enough room to put in an 8’ fence. The board asked for clariflcation that if the variance was denied the building would still exist there and operate as it is and if granted the variance the applicant would still have to go through the rezoning process. The applicant and Mr. Vafler answered that was correct. If the variance was approved the applicant would still have to go through the rezoning process and that with the suggested conditions, the variance decision would be contingent upon the conditional rezoning being successful. Chair Mitchell asked the board if there were any further deliberation. Chair Mitchell asked the board if anyone would like to make a motion. Mr. Trice made a motion to deny the request. Mr. Uhl second the motion to deny. Chair Mitchell asked any opposed. Mr. Rash voted to oppose. The Board’s decision was 4-1 vote in favor of the motion to deny. The Board’s decision was based on the following conclusions and flndings of fact. 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 35’ rear setback requirement per Section 3.1.3.C.1 and from the 25’ side, street setback requirement per Section 3.4.5.D 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 Board did not flnd that an unnecessary hardship would result. 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 the location, size, or topography. This conclusion is based on the following FINDINGS OF FACT: • The Board did not flnd that an unnecessary hardship would result. 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: • The Board did not flnd that an unnecessary hardship would result. 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 the public safety is secured and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT: • The Board did not flnd that granting the variance would be consistent with the spirit, purpose, and intent of the ordinance. There being no further business before the Board, it was property moved by Mr. Keenan to adiourn. MEETING ADJOURNED Please note the minutes are not a verbatim recording of the proceeding Executive Secreta ry Chair 3lzu lz,l Date :^ z'*€-