BOARD of Adjustment Special Meeting * PD Community Room July 27, 6:00 PM

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1 BOARD of Adjustment Special Meeting * PD Community Room July 27, 6:00 PM A. CALL TO ORDER B. DETERMINATION OF QUORUM C. APPROVAL OF AGENDA D. HEARING OF CASES 1. VAR : a request by Jan Ringling, for a variance from Section 9.8 Buffers, Screening and Landscaping of the Waxhaw UDO (Unified Development Ordinance) to reduce the required 45 foot separation buffer along the rear property line between the proposed development and the abutting property zoned Union County R-20 (single-family residential). The property is located on the south side of the western portion of Waxhaw Parkway (tax parcel # N, B, and P) and is zoned C-3 (General Commercial). VAR Combined E. APPROVAL OF MINUTES Review should include Minutes for Special and/or Work Sessions held since the last regular meeting. 1. Review and approval of minutes from the June 20th, 2017 Special Meeting BOA Minutes Draftv2 F. OTHER BUSINESS 1. Schedule next Board of Adjustment meeting. G. ADJOURNMENT Town Hall, 1150 North Broome Street, Waxhaw, NC Page 1 of 37

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3 Variance Cheat Sheet Variances are official permission from the Board of Adjustment to depart from the requirements of the Unified Development Ordnance when a hardship would apply from the strict application of the regulations. Variances apply to all properties included in the application and run with the land. Quasi judicial Process The purpose of the evidentiary (quasi judicial) hearing is to receive sworn testimony to provide evidence whether the proposed request meets the findings of fact. Ex Parte Communication Communication between the Board of Adjustment, applicant and public outside the meeting is not allowed. Sworn Testimony Required. Applicant, staff and other affected parties present sworn testimony to gather legally sufficient factual evidence. No here say, opinions or outside matters. Statement of Not required. Reasonableness & Consistency Notice Within 10 to 25 days of public hearing date: Two legal advertisements in a newspaper of general circulation. Adjacent property owner notices to property owners within 300 feet of the property. Sign posted on property. Conflicts of Interest Board of Adjustment members must abstain from voting only if there is a financial interest, preformed bias, close familial, business or other associational relationship with an affected person. Public Comment Time limitation can be imposed on public speakers. Vote Four fifths vote. (4 of 5; 4 of 4 if one member absent) Findings of Fact Does require findings of fact. Each must be met and voted on separately. Page 3 of 37

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8 WAXHAW PARKWAY NOTE: THIS DESIGN IS THE PROPERTY OF CUMMINGS CONSTRUCTION CORPORATION. IT CANNOT BE USED OR DUPLICATED BY ANYONE WITHOUT THE WRITTEN APPROVAL OF CUMMINGS CONSTRUCTION CORPORATION. NOTE: THESE DRAWINGS ARE PRELIMINARY CONCEPTUAL DRAWINGS ONLY AND ARE SUBJECT TO APPROVAL BY LOCAL AUTHORITIES CONSTRUCTION CORPORATION POST OFFICE BOX 692 (704) MATTHEWS, NC Page 8 of 37

9 275'-0" - FRONT - FACING WAXHAW PARKWAY 59'-0" - SUITE C 126'-0" - SUITE B 44'-0" - SUITE E 20'-0" - SUITE D 26'-0" - SUITE A SUITE D RETAIL 1,495 SF 21'-1" 21'-0" WOMEN MEN SHARED HALLWAY SUITE C GYMNASTICS 4,702 SF FULL COURT A SUITE A RESTAURANT 2,035 SF 12'-0" 11'-11" 54'-5" 85'-0" - RIGHT SIDE EQUIPMENT 16'-2" OFFICE OFFICE 19'-4" OFFICE OFFICE OFFICE OFFICE 14'-11" OFFICE 6'-6" SUITE E OFFICE 3,740 SF COPY MEN 7'-6" 5'-5" 18'-2" BREAK CONFERENCE 11'-6" CHANGE 8'-6" CHANGE OFFICE 16'-11" OFFICE SUITE B BRECREATION 12,939 SF 52'-5" 8'-6" 12'-0" 7'-8" 6'-8" 9'-0" FULL COURT B 8'-0" 50'-0" 9'-5" 50'-0" 8'-0" 10'-6" 7'-11" MEN 7'-7" 5'-0" 68'-4" 5'-5" 5'-5" 13'-3" 84'-0" 5'-0" 10'-6" 14'-21 2 " 17'-8" 20'-0" 17'-8" 14' " 15' " 16'-0" 20'-0" 16'-0" 85'-0" - RIGHT SIDE 15' " " MASONRY VENEER 17'-5" 28'-0" 27'-9" 26'-4" 23'-8" 24'-2" 25'-4" 25'-5" 25'-4" 24'-2" 26'-2" 122'-0" 128'-0" 25'-0" 275'-0" - REAR - FACING PARKING LOT CONCEPTUAL FLOOR PLAN 3/32" = 1'-0" NOTE: THIS DESIGN IS THE PROPERTY OF CUMMINGS CONSTRUCTION CORPORATION. IT CANNOT BE USED OR DUPLICATED BY ANYONE WITHOUT THE WRITTEN APPROVAL OF CUMMINGS CONSTRUCTION CORPORATION. NOTE: THESE DRAWINGS ARE PRELIMINARY CONCEPTUAL DRAWINGS ONLY AND ARE SUBJECT TO APPROVAL BY LOCAL AUTHORITIES CONSTRUCTION CORPORATION POST OFFICE BOX 692 (704) MATTHEWS, NC " MASONRY VENEER " MASONRY VENEER 14'-1" 13'-4" 13'-4" 13'-4" 13'-4" 17'-7" " MASONRY VENEER " MASONRY VENEER " MASONRY VENEER Page 9 of 37

10 PRELIMINARY REAR ELEVATION (FACING PARKING LOT) 3/32" = 1'-0" PRELIMINARY RIGHT SIDE ELEVATION 3/32" = 1'-0" PRELIMINARY FRONT ELEVATION (FACING WAXHAW PARKWAY) 3/32" = 1'-0" NOTE: THIS DESIGN IS THE PROPERTY OF CUMMINGS CONSTRUCTION CORPORATION. IT CANNOT BE USED OR DUPLICATED BY ANYONE WITHOUT THE WRITTEN APPROVAL OF CUMMINGS CONSTRUCTION CORPORATION. NOTE: THESE DRAWINGS ARE PRELIMINARY CONCEPTUAL DRAWINGS ONLY AND ARE SUBJECT TO APPROVAL BY LOCAL AUTHORITIES PRELIMINARY LEFT SIDE ELEVATION 3/32" = 1'-0" CONSTRUCTION CORPORATION POST OFFICE BOX 692 (704) MATTHEWS, NC Page 10 of 37

11 Page 11 of 37 Looking From East at Site Looking From North to East Side of Site Looking From West at Site Looking From North to West Side of Site

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13 Number OwnerName1 OwnerAddre OwnerCity nerst OwnerZip 1 HOWIE ELIZABETH R FAMILY LIMITED PARTNERSHIP & ET AL % JAMES H HOWIE 501 NORTH BROAD ST WAXHAW NC WHITON BRUCE 7041 CATBIRD LN MARSHALL VA WAXHAW COMMUNITY VOLUNTEER FIRE DEPARTMENT & RESCUE SQUAD INC BOX 1258 WAXHAW NC J M WALLACE LAND COMPANY LLC % SOUTHERN REAL ESTATE 4201 CONGRESS #170 CHARLOTTE NC HARRISON PARK HOMEOWNERS ASSOC INC % COMMUNITY ASSOCIATION MAN PO BOX CHARLOTTE NC Page 13 of 37 VAR b Adjoining Property Owners

14 N Broome St Spanish Oaks Dr 3 4 Thorncrest Dr Waxhaw Pkwy Harrison Park Dr 2 5 Dunsmore Ln 1 Legend Page 14 of 37 Roads Adjacent Property Beckwith Ln Parcels Ü Miles VAR Buffer Variance Adjacent Properties Data Source & Disclaimer Data provided by Union County GIS and Town of Waxhaw GIS. The Town of Waxhaw does not guarantee the accuracy of the information displayed. Map created July 2017.

15 Waxhaw Pkwy Legend Page 15 of 37 Roads Ü Miles VAR Buffer Variance Adjacent Properties Data Source & Disclaimer Data provided by Union County GIS and Town of Waxhaw GIS. The Town of Waxhaw does not guarantee the accuracy of the information displayed. Map created July 2017.

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17 VAR Staff Analysis BOA July 27, 2017 Variance Case VAR Waxhaw Parkway Buffer Waxhaw Parkway EXPLANATION OF THE REQUEST VAR is a request by Jan Ringling, for a variance from Section 9.8 Buffers, Screening and Landscaping of the Waxhaw UDO (Unified Development Ordinance) to reduce the required 45 foot separation buffer along the rear property line between the proposed development and the abutting property zoned Union County R-20 (single-family residential). The property is located on the south side of the western portion of Waxhaw Parkway (tax parcel # N, B, and P) and is zoned C-3 (General Commercial). LOCATION AND LAND USE The property is located on the western portion of Waxhaw Parkway Road and the site totals approximately 3.0 acres in size. Condition and land use of the surrounding properties: The adjoining property to the east is developed with retail store zoned C-3 (General Commercial). The adjoining property to the south is a farm zoned Union County R-20 (Single-Family Residential). The adjoining properties to the north, across Waxhaw Parkway, are the Waxhaw Volunteer Fire Department and the Old Hickory shopping center zoned C-3 (General Commercial). The adjoining properties to the west are developed with single family residences in the Harrison Park residential subdivision zoned CU-RM-1 (Conditional Use Multi-Family Residential). REASON FOR THE VARIANCE REQUEST The applicant, Jan Ringling, is requesting a variance from Section 9.8 Buffers, Screening and Landscaping of the UDO to reduce the required 45 foot use separation buffer to 10 feet in the rear of the property to accommodate the proposed recreation facility and mixed-use development. In the application, the applicant states the following regarding the finding of facts: Finding #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. Applicant response: Laying out this footprint on a narrow lot with the topography challenges creates need for the reduced setback, allowing us to use the almost half acre for the building footprint. Finding #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. 1 Page 17 of 37

18 VAR Staff Analysis BOA July 27, 2017 Applicant response: Long narrow lot with slopes requiring retention walls. The building plans could not be oriented another way that would fit the building use and fit the site. Finding #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. Applicant response: In order to work with the natural layout of the land, it would make it challenging to have a full width buffer as required by ordinance. Finding #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. Applicant response: Site would be in the spirit of the existing adjacent buildings with similar setbacks. The rear 10 buffer on our site plan would still be separating the sites/uses as the ordinance intended. PLANNING STAFF ANALYSIS This is a request for a variance from Section 9.8 Buffers, Screening and Landscaping of the Waxhaw UDO to reduce the required 45 foot use separation buffer to 10 feet along the rear property line of the site. The 45 foot Class B buffer is required due to the proposed primary use for the site of an indoor recreation facility. Table a Required Buffer Classes would classify the use a Medium Intensity Health Institution less than 50,000 Square Feet. The Medium Intensity Health Institution use requires a Class B buffer when abutting a single-family zoning district, the property the south of the site abutting the rear property line is zoned Union County R-20 (single-family residential). For sites between 2 and 10 acres a Class B buffer must have a width of 45 feet and provide 6 trees and 40 shrubs per 100 feet of length. The applicant sites several reasons that providing a 45 foot Class B buffer is not feasible including the topography of the site, the width of the building that is required due to accommodating standard size basketball courts, the amount of parking that is required, and narrow width of the site. The applicant is requesting that the buffer width be reduced by 35 feet, from 45 feet to 10 feet to accommodate the proposed building and associated parking. Section F Buffers and Landscaping of the UDO states the following: F. Buffers and landscaping shall be required along-side and rear property lines between abutting uses and districts in accordance with tables a and b below: Tables a and b have been included in your packets for reference. FINDINGS OF FACT According to section 15 of the Waxhaw UDO the Board of Adjustment shall issue a Variance if it has evaluated an application and determined that: 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 2 Page 18 of 37

19 VAR Staff Analysis BOA July 27, 2017 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. In granting a variance, the Board may attach thereto any conditions and safeguards it deems necessary or desirable in furthering the purposes of this Ordinance. ***Please refer to the 4 Findings of Fact listed above when making a decision*** 3 Page 19 of 37

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21 9 General Provisions Table a REQUIRED BUFFER CLASSES EXISTING ABUTTING USES AND DISTRICTS SINGLE FAMILY ZONING/ USE MULTI FAMILY ZONING OIS ZONING* COMMERCIAL ZONING PARKS AND GREENWAYS DEVELOPING USES CLASS 1. MULTIFAMILY Attached and multifamily in one building with more than 12 units; Planned multifamily and attached developments and Manufactured housing parks B C C 2. INSTITUTIONAL Low Intensity: Government Facilities, Civic, service and fraternal organizations; cultural facilities; Day care center; Dormitories; Elementary schools*; Group homes with more than 6 residents; and Nursing homes, rest homes and homes for the aged. C C C 9 6 Amended Waxhaw Unified Development Ordinance Page 21 of 37

22 General Provisions 9 EXISTING ABUTTING USES AND DISTRICTS DEVELOPING USES Medium Intensity: Health institutions, less than 50,000 sq. ft.; Junior high and Middle schools*; Religious institutions, up to 750 seats; Stadiums and arenas, less than 5,000 seats and other institutional uses less than 50,000 sq. ft. SINGLE FAMILY ZONING/ USE CLASS MULTI FAMILY ZONING OIS ZONING* COMMERCIAL ZONING B B C C PARKS AND GREENWAYS High Intensity: Health institutions, 50,000 sq. ft. or more; High schools*; Religious institutions, 750 seats or more; Stadiums and arenas, 5,000 seats or more; Universities, colleges and junior colleges; and other institutional uses more than 50,000 sq. ft. B B C B 3. OFFICE Clinics, up to 50,000 sq. ft C C C Waxhaw Unified Development Ordinance Amended Page 22 of 37

23 9 General Provisions EXISTING ABUTTING USES AND DISTRICTS SINGLE FAMILY ZONING/ USE MULTI FAMILY ZONING OIS ZONING* COMMERCIAL ZONING DEVELOPING USES Clinics, more than 50,000 sq. ft B B B Offices, up to 50,000 sq. ft C C C Offices, more than 50,000 sq. ft B B C B Other office uses, up to 50,000 sq. ft. C C C Other office uses, more than 50,000 sq. ft. B B C B 4. BUSINESS Amusement, commercial outdoor B B C C Retail, Shopping Centers and Restaurants, up to 50,000 sq. ft. B B C C Retail, Shopping Centers and Restaurants, more than 50,000 sq. ft. B B C C Wholesale trade B B C C C Other business uses B B C C B 5. INDUSTRIAL Airport A A A A A Heavy manufacturing A A A B A Light manufacturing A A A B A Warehousing A A A B A Other industrial uses A A A A A PARKS AND GREENWAYS * In the event that a single family house is being occupied primarily as a residence in the OIS district, the parcel shall be deemed a single family use as it pertains to the above table. 9 8 Amended Waxhaw Unified Development Ordinance Page 23 of 37

24 General Provisions 9 Table b BUFFER WIDTHS AND PLANTING STANDARDS A CLASS B CLASS C CLASS SITE AREA (ACRES) > 2 2 >10 = or >10 WIDTH (ft) TREES (PER 100 ft) SHRUBS (PER 100 ft) WIDTH (ft) TREES (PER 100 ft) SHRUBS (PER 100 ft) WIDTH (ft) TREES (PER 100 ft) SHRUBS (PER 100 ft) G. Landscape Areas Adjacent to Public Streets: A continuous landscape area shall be provided adjacent to public street right of ways for all districts except single family districts. This landscape area shall be in accordance with table c below: Table c LANDSCAPE AREAS ADJACENT TO PUBLIC STREETS USE MIN. LANDSCAPE AREA WIDTH PROPERTY SIZE INDUSTRIAL 40 FEET 5 ACRES OR LARGER 20 FEET > 5 ACRES BUSINESS OR OFFICE (EXCLUDING CENTRAL BUSINESS DISTRICT) 20 FEET ANY SIZE MULTI FAMILY OR INSTITUTIONAL CENTRAL BUSINESS DISTRICT 20 FEET 2 ACRES OR LARGER 10 FEET > 2 ACRES NONE Waxhaw Unified Development Ordinance Amended Page 24 of 37

25 Parking Requirements Use Parking Ratio Proposed Sq.Ft. Maximum Allowed Minimum Required Office 3.35/1000 Sq.ft Retail 3.5/1000 Sq.ft Recreation Facility 2 per Player Restaurant 16/1000 Sq.ft Total Section 12.3 Off Street Parking Reqirements Page 25 of 37

26 574 Ü Miles VAR Buffer Variance Topography Waxhaw P kwy Year Base Flood Elevation Floodplain Contours Streams Parcels Roads Legend 618 Data Source & Disclaimer Data provided by Union County GIS and Town of Waxhaw GIS. The Town of Waxhaw does not guarantee the accuracy of the information displayed. Map created July Page 26 of

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29 Minutes of the Town of Waxhaw Board of Adjustment June 20, 2017 Special Meeting Minutes Town of Waxhaw Development Services Department 1150 N. Broome Street, P.O. Box 617 Waxhaw, NC (Phone) (Fax) The Board of Adjustment met in special session Tuesday, June 20 th, 2017 at 6:00pm at the Waxhaw Police Department Community Meeting Room. Special Called Board Meeting 1. Call to Order The meeting was called to order at 6:00pm by Chairman Michael Downing. 2. Roll Call and Determination of Quorum Present: Chairman Michael Downing, Board Member Kristoffer Patrick, Board Member Stacey Vinson, Board Member Art Meyer, Board Member Robert Dussinger, Staff Lisa McCarter, Staff Maxx Oliver, Staff Tim Jones, Recording Secretary Lindze Small. Present but arrived late: Vice Chairwoman Tracy Wesolek. Absent: None Others in Attendance: Variance applicant Emmett Quaine and a member of the public. Chairman Downing made a motion to affirm the meeting quorum. Seconded by Board Member Meyer. The vote carried unanimously (5-0). 3. Approval of Agenda Chairman Downing made a motion to approve the agenda as presented. Seconded by Board Member Meyer. The vote carried unanimously (5-0). 1 Page 29 of 37

30 4. Approval of Minutes for May 18, 2017 Meeting Minutes Chairman Downing made a motion to approve the May 18 th, 2017 meeting minutes as presented. Seconded by Board Member Vinson. The vote carried unanimously (5-0). 5. Business 1. VAR is a request by Emett Quaine, for a variance from Section 9.20 Accessory Structures of the Waxhaw UDO (Unified Development Ordinance) to reduce the required 8 feet separation distance between the principal building and an accessory structure in the R-3 zoning district. The property is located at 2603 Holmview Street (tax parcel # ) and is zoned CU-R3-PRD (Conditional Use Single-Family Planned Residential Development). Vice Chairwoman Wesolek arrived at the Board of Adjustment meeting at 6:03pm and was seated at the dias. (Alternate Board Member Robert Dussinger remained seated at the dias though was no longer noted as a voting member for the remainder of the meeting per the Board of Adjustment Rules of Procedure). Staff McCarter, Staff Oliver and applicant Emmett Quaine were sworn in for testimony. Chairman Downing motioned to open the public hearing. Seconded by Board Member Meyer. The vote carried unanimously (5-0). Staff Oliver gave a presentation on VAR (please see attached). Staff Oliver stated that the property is located in Phase 3 of the Cureton residential subdivision and that the site is a 0.26 acre tract of land. Staff Oliver stated the property is bordered on the North, East and South by single family homes and to the west by a Cureton HOA common open space parcel. Staff Oliver stated that all property owners within 300 feet of the property were notified of this public hearing. Staff Oliver stated that the minimum 5 foot setback from the rear lot line was possible as proposed but that the minimum 8 foot separation from the principle structure was not possible for the pool as proposed hence the applicant is requesting this setback be reduced to 6 feet. Chairman Downing asked Mr. Quaine if he would like to speak on behalf of the variance request. Mr. Quaine stated that there was an abundance of room on his side yard setback to accommodate his request and that he has made two attempts to garner permission from the HOA to place the pool in the side year setback which were both denied. Mr. Quaine 2 Page 30 of 37

31 stated that his request to use the desired pool for aqua therapy is in response to injuries sustained in the course of work in law enforcement and with the FBI. Mr. Quaine stated that private aqua therapy costs are exorbitant and that installing a pool would be the best way to combat physical and psychological injuries sustained from his work. Vice-Chairwoman Wesolek asked questions regarding the mechanics and nature of an aqua therapy pool. Mr. Quaine stated that his desire would be to add a specialized sim jet to the pool that would help with hip strength. Mr. Quaine stated that the mechanisms would essentially look and function like a water-based gym. Vice-Chairwoman Wesolek asked how an aqua therapy pool differed from a conventional pool. Mr. Quaine stated that an aqua therapy pool would have a swim jet that would allow for easier swimming for therapy. Mr. Quaine stated that the HOA has offered to grant specialized access to the community public pool which he was not comfortable with utilizing these services in light of his PTSD and social triggers (due to his injuries sustained in the line of duty). Board Member Vinson asked if the HOA was the final decision on the pool being allowed or not despite the BOA meeting on this subject. Mr. Quaine stated that the HOA would still have to approve the pool for it to be placed on the property and that the HOA desired for him to have the pool on the rear envelope on the home. Board Member Vinson asked why there was a delay in communication from the HOA and asked if this was attributed to the impending BOA variance case on this issue. Mr. Quaine stated that upon submitting his requests for the pool to the HOA, the HOA asked for additional information and that an additional 30 day review period was allowed prior to their making a decision regarding placing the pool in the rear of the home. Board Member Vinson asked if this request had been denied twice by the HOA. Mr. Quaine stated that the request to have the pool on the side setback was denied twice by the HOA. Mr. Quaine stated that no language regarding what the yard makeup, specifically for the rear yard is for a lot is outlined in the covenants, codes and restrictions for the community and that this ambiguity seems in contrast with State and HUD guidelines. Vice-Chairwoman Wesolek asked if all aqua therapy pools are of the same size or if they are able to be customized. Mr. Quaine stated that the proposed size, material and other aspects could be customized per the HOA guidelines though its primary function would be to provide for his aqua therapy use and that he has a desire to have a nice aesthetic to the pool so it does not present as an eye sore in the community. Vice-Chairwoman Wesolek asked if the pool could be reduced two feet in size to accommodate the UDO requirements. Mr. Quaine stated that this reduction was possible in theory but that this would present a hardship in getting the necessary aqua therapy equipment in and out of the pool. Chairman Downing asked if the five foot required rear setback would be affected by the proposed pool. Mr. Quaine stated that the pool would comply with this required setback. Chairman Downing stated that the rear setback provided for an additional 8 inches from the rear required setback. Chairwoman Downing asked if the pool were moved 8 inches 3 Page 31 of 37

32 closer to the rear setback that a variance of only 1 foot and 4 inches would be required from the side setback. Mr. Quaine stated that this was correct. Chairman Downing asked the applicant why the pool could not be 1 foot 4 inches smaller in size to accommodate standards. Mr. Quaine stated that the proposed recommendations were from the pool builder in their discretion of the space needed for the pool equipment and potential changes to the proposed pool could be considered. Chairman Downing stated that in accordance with the first finding of fact regarding undue hardship that there was an opportunity to reduce the size of the pool to accommodate his request. Mr. Quaine stated that per the recommendation from his pool builder reducing the size of the pool per Chairman Downing observations was not feasible to accommodate space needed for the aqua therapy equipment. Chairman Downing asked if the equipment requires the 11 foot proposed pool width. Mr. Quaine stated that according to the pool builder this width was required. Board Member Vinson asked if the documentation from the pool builder stating that the 11 foot width would be required was available. Mr. Quaine stated that he didn t have this documentation available. Board Member Meyer stated that the backyard on the lot appears to be small in size. Mr. Quaine stated that the he and his neighbors have a similar makeup to their lots and that he and his wife reviewed the HOA document thoroughly prior to purchasing their home but contends that the documents vagueness led him to believe that the side year setback could be used for the pool structure. Board Member Vinson asked if the applicant was aware that a variance would be needed when they purchased the home and if this was being considered when reviewing the HOA documents. Mr. Quaine stated that he wasn t aware of this and that his family merely reviewed the documents as part of their due diligence process. Board Member Vinson asked if the HOA documents stated that nothing could protrude on either side of the home and that all structures must be placed behind the home. Mr. Quaine stated that he wasn t aware of any language to that effect in the document. Board Member Meyer asked if his home and lot orientation was similar to the applicant s neighbors. Mr. Quaine stated that the yards for he and his neighbors were similar. Board Member Meyer asked if there were any distinguishing characteristics for his lot as opposed to his neighbors. Mr. Quaine stated that the properties were similar. Board Member Meyer asked if reducing the size of the pool would present an inconvenience for the applicant. Mr. Quaine stated that reducing the size of the pool would create an inconvenience and that the proposed equipment and size was desired for his therapy and that the inability to have the requested size would make his family consider selling their home. Chairman Downing asked if the 8 foot minimum required setback were to be measured at the beginning of the depth of the pool or the sidewalk. Staff Oliver stated that it was his understanding that the minimum 8 foot required setback were to be measured at the beginning of the depth of the pool. 4 Page 32 of 37

33 Board Member Vinson asked if the variance request were granted for the requested additional two feet of distance for the pool size, would there still be adequate space for the required fence on the property. Mr. Quaine stated that his neighbors have fences around their pools and that he would only be required to put a fence on the rear portion of the lot and that the fence places no role in the problem. Vice-Chairwoman Wesolek asked if the fireplace were gone that was outlined on the documents Mr. Quaine submitted with his variance request. Mr. Quaine stated that the fireplace on the lot would still need to be removed from the property. Vice-Chairwoman Wesolek asked if the location where the fireplace was also where the existing patio was on the property. Mr. Quaine stated that this was correct and that putting the pool in this portion of the lot (where there are existing features being utilized by the family) presented an additional $20,000 hardship to his family (if these features were removed). Vice-Chairwoman Wesolek asked the applicant in the hypothetical, did he find that the HOA would approve his request for the pool placement if the Board were to approve his variance request. Mr. Quaine was unclear what barring a decision from the Board would have but stated that he believe support of the pool from the Board would better his argument to the HOA. Staff Oliver stated that Town regulations would allow for a pool in the side yard as Mr. Quaine has requested of the HOA. Chairman Downing asked if the HOA ever allows for the placement of pools in the rear yard and whether or not any of his neighbors had pools placed on that portion of their lots. Mr. Quaine stated that pools placed in the rear yard setback were allowed to his understanding and that his neighbor located to the back of his lot has a pool in their backyard. Board Member Dussinger asked if Cedar Management was supportive of this request and whether the management company had gone back to the HOA with their request. Mr. Quaine stated that his relationship with the developer was contentious with the developer due to the ongoing lawsuit and he was unclear on the current status of Board Member Dussinger s question. Board Member Dussinger explained to the application some of his experiences in previously working with the Cureton HOA. Mr. Quaine stated that the pool is in ground and that his request is consistent with what he found in the HOA guidelines and documentation. Vice-Chairwoman Wesolek asked the applicant about what accommodations the community pool would afford him. Mr. Quaine explained that the HOA had offered to him amended hours of operation which he found to be inappropriate given his social triggers attributed to his PTSD, further stating that on several occasions he had requested reasonable accommodation under HUD law which he did not believe were being offered to him by the HOA. Board Member Vinson asked if the aqua therapy was the best method for therapy for the applicant s ailments. Mr. Quaine stated that the only other option presented to him for alternative treatment was hip replacement which may not resolve the issue completely and seemed extremely drastic for someone his age (41 years old). 5 Page 33 of 37

34 Board Member Patrick asked if there were a recreational component of the pool. Mr. Quaine stated that he also has two children who could benefit from the pool though expressed that his primary motivation for the pool was to assist with his physical, aqua therapy. Board Member Patrick asked if the additional space requested to accommodate the pool on the lot was also for lawn furniture and non pool related uses. Mr. Quaine stated that the additional space was not being requested for incidental. Chairman Downing asked the Board if there were any additional debate or discussion needed on the case at hand. Chairman Downing stated that a minimum of four votes in the affirmative would be needed for an affirmative decision by the Board. Chairman Downing made a motion to close the public hearing. Seconded by Board Member Meyer. The vote carried unanimously (5-0). Chairman Downing stated that the Board of Adjustment must to go through each of the four findings of fact and find them in the affirmative or not. Chairman Downing read the first finding of fact. 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. Chairman Downing asked for a vote for any Board members who find the first finding of fact in the affirmative to make a voice vote of aye. No Board member provided an aye vote. Chairman Downing asked for a vote for any Board members who find the first finding of fact to not be in the affirmative to make a voice vote of nay. The vote carried unanimously (5-0). Chairman Downing made a motion to find the first finding of fact not in the affirmative given the availability of other pool sizes and the side yard accommodations available in Town which allow for the application of UDO Section Seconded by Vice-Chairwoman Wesolek. The vote carried unanimously (5-0). 6 Page 34 of 37

35 Chairman Downing read the second finding of fact: 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. Chairman Downing asked for a vote for any Board members who find the first finding of fact in the affirmative to make a voice vote of aye. No Board member provided an aye vote. Chairman Downing asked for a vote for any Board members who find the first finding of fact to not be in the affirmative to make a voice vote of nay. The vote carried unanimously (5-0). Board Member Meyer made a motion to find the second finding of fact not in the affirmative stating that there were no additions peculiar to the location of the property such as size, location or topography and that hardships resulting from personal circumstances are disallowed. Seconded by Vice-Chairwoman Wesolek. The vote carried unanimously (5-0). Chairman Downing read the third finding of fact: 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. Chairman Downing asked for a vote for any Board members who find the first finding of fact in the affirmative to make a voice vote of aye. The vote carried unanimously (5-0). Chairman Downing made a motion in the affirmative stating that the applicant did not take any action that would create any hardship. Chairman Downing asked for all Board members in favor to give a voice vote of aye. The vote carried unanimously in the affirmative (5-0). Chairman Downing read the fourth finding of fact: 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. Chairman Downing asked for a vote for any Board members who find the fourth finding of fact in the affirmative to make a voice vote of aye. 7 Page 35 of 37

36 The vote carried in the affirmative (4-1) with Board Member Meyer dissenting. Chairman Downing stated that the request does not present any public safety issues. Chairman Downing made a motion in the affirmative stating that the requested variance does not present any public safety issues. Chairman Downing asked for all Board members in favor to give a voice vote of aye. The vote carried unanimously in the affirmative (5-0). Chairman Downing stated that two of the findings of fact were found in the affirmative and two of the findings of fact were not found in the affirmative. Chairman Downing made a motion to deny VAR Chairman Downing asked for any Board Members in agreement with the decision to deny VAR to give a voice vote of aye. The vote carried unanimously (5-0). 2. Schedule Next Board of Adjustment Meeting Staff Oliver stated that a new variance request has been applied for and that an upcoming Board of Adjustment meeting date would need to be coordinated. The Board discussed the following meeting dates: Thursday July 6 th, Monday July 10 th, Monday July 24 th and Thursday July 27 th at 6:00pm. The Board discussed interest in having the upcoming meeting on either July 24 th or July 27 th based upon the applicant s availability. Staff Small welcomed new Board of Adjustment member Kristoffer Patrick. 6. Adjournment Chairman Downing made a motion to adjourn the meeting at 6:40pm. Seconded by Board Member Meyer. The vote carried unanimously (5-0). Respectfully Submitted, Chairman, Dustin Williams 8 Page 36 of 37

37 Recording Secretary, Lindze Small 9 Page 37 of 37