MINUTES ZONING BOARD OF ADJUSTMENT

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1 MINUTES ZONING BOARD OF ADJUSTMENT The New Hanover County Zoning 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 Finance Conference Room 500, Wilmington, NC, on Tuesday, October 25, Members Present Robert Cameron, Jr., Chairman Eric Hickman Noelle Winstead Peter DeVita Justin Lewis Members Absent Joe Miller, Alternate Michael McCulley, Alternate John Stanton, II, Alternate Ex Officio Members Present Sharon Huffman, Assistant County Attorney J. Steven Still, Acting Executive Secretary Linda E. Painter, Zoning Official Hattie Moore, Clerk The meeting was called to order at 5:43 P.M. by the Chairman, Mr. Robert Cameron, Jr. Mr. Cameron explained that the Zoning Board is a quasi-judicial board appointed by the Board of Commissioners to consider zoning ordinance variances from residents in New Hanover County, where special conditions would create unnecessary hardships. He said the Zoning Board also hears appeals of the County s interpretation in enforcement of the Zoning Ordinance. Mr. Cameron added that appellants have thirty days in which to appeal any decision made by the Board to Superior Court. It was properly moved by Mr. DeVita and seconded by Mr. Lewis to accept the minutes from the September 27, 2011 minutes. All ayes. Mr. Cameron swore in County staff Mr. Steven Still and Ms. Linda Painter. FIRST AND ONLY CASE BEFORE THE BOARD WAS AS FOLLOWS: Kondaur Capital Corp, 249 Pages Creek Drive, has requested a variance from New Hanover County Zoning Ordinance, Section 62-1 Accessory Building for an existing accessory building which exceeds allowable square footage for a reduced setback. Property is zoned R-15. Case No. ZBA-862 Ms. Painter s Overview: Applicant is requesting a variance from New Hanover County Zoning Ordinance Section 62-1: Accessory Building which allows for a 5 ft. side and rear setback for structures not exceeding 600 sq. ft. A building permit was issued in 1999 to build a 484 square foot garage. The property is now bank owned. Kondaur Capital Corp is the owner of the single family residence and accessory building located at 249 Pages Creek Drive. Recently it was brought to our attention that a second dwelling unit had been constructed at this address without proper permits. Further investigation and a site visit revealed that the accessory structure is in excess of 600 sq. ft. and encroaches into the required 10 ft. side yard 1

2 setback. New Hanover County Zoning Ordinance, Section 62-1 states that no accessory building shall be erected in any required yard nor within five feet of any other building except that accessory buildings not exceeding 600 sq. ft. may be permitted in the required side and rear yards provided such accessory buildings are at least five feet from any property line and do not encroach into any required easements. Previous owners received a permit in February 1999 to build a 484 sq. ft. detached garage with storage. However, this permit did not receive final inspections or received a certificate of occupancy. This structure would have complied with the square footage to reduce the side yard setback. At some unknown time an addition was added onto this building which increased the size to 748 square feet making it ineligible for the reduced setback. The County s GIS aerial maps in 2002 do not show the addition. The County s GIS 2006 aerial map does show an enlarged structure. The applicant states that the setback violation has existed for ten years and that to comply with the literal terms of the ordinance reconstruction of the existing structure would be necessary, which in turn would create a hardship. REQUIRED STANDARDS: Section 62: Accessory Building / Use 62-1: No accessory building shall be erected in any required yard nor within five (5) feet of any other building except that accessory buildings not exceeding 600 sq. ft. (9/4/84) may be permitted in the required side and rear yards provided such accessory buildings are at least five (5) feet from any property line and do not encroach into any required easements. Accessory buildings not exceeding 50 square feet and use exclusively to house well and pump equipment may be permitted in the required front, side and rear yards, provided such accessory buildings are at least five (5) feet from any property line and do not encroach into any required easements or sight angles. (1/4/88) An accessory building or use may be located on another contiguous or noncontiguous lot from the principal use with which it is associated, only to the extent that the principal use itself would also be permitted on such lot. (9/12/83) Section 52.5: R-15 Residential District : Conventional Residential Regulations Dimensional Requirements: (4) Minimum side yard 10 feet (5) Minimum rear yard 20 feet PRELIMINARY FINDINGS OF FACT: The applicant has asserted the following preliminary findings of fact. Staff, in its review of the case, has commented on the assertions of fact. The Board s findings may agree or disagree with the following statements. 1. The Board must find that if the applicant complies with the literal terms of the ordinance, specifically, Section 62-1 he (can/cannot) secure a reasonable return from, or make reasonable use of his property. A. Applicant s Proposed Finding: Accessory building needs approval to be able to resell to a buyer. B. Staff: Staff submits that the applicant can secure a reasonable return and reasonable use of the property if building is made to comply with the setback requirement of the Ordinance. 2. The Board must find that the hardship in which the applicant complains results from unique circumstances related to the applicants land. 2

3 A. Applicant s Proposed Finding: Property has a well and building is the required setback from the well. B. Staff: Staff disagrees that the pre-existence of the encroachment is unique to the applicant s land. 3. The Board must find that the hardship is not the result of the applicants own actions A. Applicant Asserts: Property obtained by deed in lieu of foreclosure. B. Staff: Concurs 4. The Board must find that if granted, the variance will be in harmony with the general purpose and intent of the ordinance and will preserve its spirit. A. Applicant Asserts: Building has been in use for over 10 years with no problems. B. Staff: Staff disagrees that an unpermitted enlargement of an accessory structure, which has never received a final inspection or a certificate of occupancy is consistent with purpose and intent of the reduced setback. The time period that unpermitted structure has been in place is not relevant. 5. The Board must find that if granted, the variance will secure the public safety and welfare and will do substantial justice. A. Applicant Asserts: Property has been there for many years and does not harm anyone. B. Staff: Staff disagrees. Buildings constructed without proper permits could pose a threat to public safety and welfare, regardless of the time which has elapsed. Without a permit there is no way to know when structure was enlarged. Ms. Painter s PowerPoint Presentation consisted of: 2002 aerial photo, 2006 aerial photo, site plans of the property and various photographs of the structure. Ms. Huffman asked the setbacks and Ms. Painter said 10 ft. for an R-15 zoned district. Mr. DeVita asked why no one called the appellant to schedule a final inspection. Ms. Painter said she did not know but a permit was issued in 1999 for a detached garage not a dwelling unit. Ms. Painter said it had a kitchen and a bathroom but the kitchen has been removed. Ms. Winstead asked if the appellant would now have to get a building permit. Mr. Still said if the variance is granted they would have to get the building permit modified. Mr. Cameron asked if there was a system in place that would come up if something had not been inspected. Mr. Still said this probably just slipped through the system because there is a program in place that generates a list of projects still open and they would in turn contact the contractors. 3

4 Mr. Cameron called for those to speak in favor of granting the variance request to come forward to be sworn or affirmed for testimony. He swore in Mr. Chris Huff and Ms. Terri Parrish. Mr. Huff said he is an attorney representing Kondaur. He said this is a bank owned property acquired in June He said they marketed the property and got a potential buyer. Mr. Huff said the building was discovered when the buyer went to see the property and afterwards the bank contacted the Inspections Department who informed them that the building was not in compliance. He said the stove and electrical has since been removed and they are working with the Inspections Department to get it into compliance. He added that they are on sewer. Mr. Cameron asked if the building was previously used as a rental. Mr. Huff said the mother-in-law or mother lived in the building. Ms. Winstead asked if they knew the ownership history. Mr. Huff said it was originally sold by the builder in February 1999 and Mrs. Gallagher, the prior owner, purchased it in Mr. Cameron asked if they knew how much it would cost to move it. Mr. Huff said no but it is on a slab and it would be difficult to move. Mr. Lewis asked if they could take off 148 square feet. Mr. Huff said that was not possible due to the setbacks. He said the closest neighbor has a fence and the building does not encroach onto any neighbor s property. He also mentioned they have not received any complaints from the neighbors. Ms. Winstead asked if there were houses next to this property. Ms. Parrish said there is a big tree barrier to the left where the fence is located between their property and that neighbor s property. She said another neighbor is behind them but they are not visible because of the woods and there is also a neighbor on the right. Mr. Cameron asked if the accessory structure was mentioned in the deed of trust. Mr. Huff said it was not mentioned in the deed of trust because the survey had not been done when the deed of trust was done. Mr. DeVita said it is 3.5 ft. into the setback or 150 ft. needs to be removed. Mr. Huff said according to the tax records 748 sq. ft. is being taxed. Mr. Cameron asked if they had tried to purchase 3 ft. from the neighbor and Mr. Huff said no. Mr. Cameron called for those to speak in opposition to the variance request to come forward for testimony. 4

5 There was no one present to speak in opposition to the variance request. PUBLIC HEARING CLOSED Board Discussion Mr. DeVita said the hardship was not created by the bank. He said the structure is not hurting anyone and has been there for 10 years. Ms. Winstead said it is important that the neighbors were notified and they do not have a problem with the structure. Mr. Lewis said they did not create the hardship and it is not affecting the public safety. Mr. DeVita said the applicant would have to spend a substantial amount of money to tear the structure down so they could not secure a reasonable return and it has no effect to public safety. He also said the building should be fully permitted and inspected. Mr. Cameron said it is a unique situation with the bank having possession of the property. He said it hasn t changed hands per se but the deed of trust has become active. Ms. Winstead said she does not see the bank being any different than an individual property owner in this situation. She said the bank wants to sell just as an individual owner would want to sell. Mr. Cameron asked if granting a variance in situations of this type would have a negative impact on the County. Mr. Still said as for insurance purposes it would only negatively affect the County if it was in a flood zone. Ms. Winstead said the structure is doing no harm, it is not the bank s fault and she would have a problem requiring them to tear it down because of circumstances. Mr. Hickman agreed. He said it may be different if the responsible party was present for the Board to ask questions of them. Mr. Lewis said it is a unique situation but it wasn t built by the applicant and it would require a substantial amount of money to move it three inches or to tear it down. BOARD DECISION 1. Kondaur Capital Corp, 249 Pages Creek Drive, has requested a variance from New Hanover County Zoning Ordinance, Section 62-1 Accessory Building for an existing accessory building which exceeds allowable square footage for a reduced setback. Property is zoned R-15. Case No. ZBA On a motion by Ms. Winstead and seconded by Mr. DeVita, the Board voted to APPROVE the variance request on the condition that the applicant obtains a valid permit, Certificate of Occupancy and any other requirements needed for approval. (4 ayes, 1 nay; Mr. Cameron) 5

6 There being no further business before the Board, it was properly moved by Mr. DeVita and seconded by Ms. Winstead to adjourn the meeting. 6:32 P.M. Acting Executive Secretary Chairman 6