Applicants: Neighbors:

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1 To: From: Members of the Board of Adjustment, Applicants & Neighboring Property Owners Jonathan B. Kanipe, Zoning Administrator Date: November 30,2018 Re: Board of Adjustment Meeting December 17, 2018 Applicants: You or your representative MUST be present at this meeting or your application will not be reviewed. Members of the Board of Adjustment & the Zoning Administrator may visit the property prior to the meeting. You or your representative must also attend the Design Review Board meeting on Tuesday December 20th, 2018 at 5:30pm to complete the approval process. Certificates of Zoning Compliance will be issued after review and approval from the Board of Adjustment & Design Review Board. The following items of business are scheduled to be addressed by the Biltmore Forest Board of Adjustment on Monday, December 17, 2018 at 4:00 pm in the Town Hall Board Room. 1) The meeting will be called to order and roll call will be taken. 2) The minutes of the November 19th, 2018 regular meeting will be considered. 3) Hearing of Cases (Evidentiary Hearings, Deliberations & Determinations): Case 1: Mr. Terry Horner, 25 Park Road, requests a conditional use permit for an accessory building and a variance for construction in the rear yard setback. Case 2: Carolina Day School, 1345 Hendersonville Road, requests a conditional use permit for installation of a solar array system. Case 3: Mr. David and Judy Morris, 40 Forest Road, request a conditional use permit for construction of a retaining wall and a variance for extension of the driveway into the side yard setback. 4) Adjourn Neighbors: You are receiving this notice because your property is adjacent to an applicant on this month s agenda. You may review applications & plans for the projects on this agenda at Town Hall M- F 9am-5pm or online at board-of-adjustments. You are invited to attend the scheduled meeting and make comment.

2 MINUTES OF THE BOARD OF ADJUSTMENT MEETING HELD MONDAY, NOVEMBER 19, 2018 The Board of Adjustment met at 4:00 p.m. on Monday, November 19, Members present: Chandler, Landau, Kieffer, and Pearlman. Mr. Jonathan Kanipe, Town Manager and Ms. Adrienne Isenhower, Town Planner, were also present. Mr. William Clarke was present as well. Mr. Greg Goosmann joined the meeting after it began. Acting Chair Lynn Kieffer called the meeting to order at 4:07 p.m. Ms. Kieffer swore in the following: Diane Zimmerman Paul Zimmerman Joyce Young Ben Page Steven Lee Johnson Joel Osgood Michael McDonough Julian Kern Gary Hill Robert Griffin Ingrid Davis Phillip Hardin Polk Deters Derek Allen Rob Moody The minutes from the October 1, 2018 meeting were approved, with a motion by Mr. Pearlman and second by Mrs. Kieffer. HEARING (Evidentiary): The first matter was a request for a conditional use permit by Elizabeth Kostova at 394 Vanderbilt Road. Ms. Kostova presented her plans for the fence project to replace an existing, dilapidated fence. She explained to the Board that the fence was in such disrepair that she was able to pull some of it down by hand, and noted it was visible from the golf course. She has a plan prepared by an architect to replace the fence. The new fence will be an arts & crafts style that is

3 consistent with her home. The fence will be the same height and location as the old fence, except for a slight deviation on the north end of the yard of around 5 feet. The material and color has been submitted for approval. There was a discussion about whether the new fence should be buffered with landscaping since it is visible from the golf course. Ms. Kostova agreed that she would add landscaping to buffer the outside of the fence if there were complaints or requests from club members or adjoining property owners. DELIBERATION AND DETERMINATION: Mr. Pearlman summarized the findings of fact. Elizabeth Kostova, 394 Vanderbilt Road, is requesting a conditional use permit for construction of a replacement fence in the rear yard. It does not encroach upon the setback requirements. The property abuts the Biltmore Forest Country Club, and Ms. Kostova has agreed to buffer the fence as necessary. Ms. Kiefer asked if there were additional discussion. There was none. Dr. Landau made a motion that Ms. Kostova s request for a conditional use permit to replace the existing fence be approved. The facts as recited by Lowell Pearlman and his summation be accepted as findings and facts to support this grant. The Board has inspected the site and no neighboring property owner has objected. Dr. Landau further moved that granting this Conditional Use Permit (a) would not materially endanger the public health or safety if located where proposed and developed according to the plans as submitted and improved, (b) met all required conditions and specifications of the Town of Biltmore Forest Zoning Ordinance, (c) would not substantially injure the value of adjoining or abutting property, and (d) would be in general conformity with the plan of development of the Town of Biltmore Forest and its environs as set forth in Sections (2) and (3) of the above ordinance. The applicant has been informed that he is to report to the Zoning Administrator within seven (7) days of completion of the project in order that the Zoning Administrator can determine that the project has been completed in accordance with plans submitted to the Town. The motion was seconded by Mr. Pearlman. All voted in favor, and the request was approved.

4 The second case, Terry Horner at 25 Park Road, was withdrawn by the applicant prior to the meeting. HEARING (Evidentiary): The third matter for Thomas and Marcia Nash, 29 Hemlock Road, was called forward. This was presented by Mr. Steven Lee Johnson of Site Work Studios. Dr. Landau took over handling the matter and asked Mr. Johnson to provide information related to the proposal. Mr. Johnson indicated that the accessory structures requested were for the half basketball court and a proposed change to the previously approved garden terrace. The half-basketball court was located behind the home and to the far side of the property, not beside the neighbor at 27 Hemlock Road. The revisions to the previously approved garden terrace included a small retaining wall as part of the garden terrace. DELIBERATION AND DETERMINATION: Dr. Landau summarized the facts. Mr. Thomas and Mrs. Marcia Nash were applying for a conditional use permit to construct a half-court basketball court and requesting a revision to a previously approved garden terrace. Mr. Chandler made a motion to approve the request for a conditional use permit. Mr. Chandler further moved that granting this Conditional Use Permit (a) would not materially endanger the public health or safety if located where proposed and developed according to the plans as submitted and improved, (b) met all required conditions and specifications of the Town of Biltmore Forest Zoning Ordinance, (c) would not substantially injure the value of adjoining or abutting property, and (d) would be in general conformity with the plan of development of the Town of Biltmore Forest and its environs as set forth in Sections (2) and (3) of the above ordinance. The applicant has been informed that he is to report to the Zoning Administrator within seven (7) days of completion of the project in order that the Zoning Administrator can determine that the project has been completed in accordance with plans submitted to the Town. Mr. Pearlman seconded the motion; all voted in favor.

5 HEARING (Evidentiary): The fourth matter called forward was for Carolina Day School at 1345 Hendersonville Road. Mr. Gary Hill, representing Carolina Day School, was present to discuss their request for a solar panel array to be placed on the Upper School. Mr. Hill indicated that the applicants are requesting three hundred (300) panels be placed along the Upper School. Mr. Robert Uritis indicated that the panels would be likely directly in the view from his home at 2 Stuyvesant Crescent. He noted that the elevation of his home leads to the first and second floors of his home being directly in view of the upper school s roofline. Mr. Uritis asked several questions regarding the reflectivity of the materials, the angle, and other specific questions regarding the application. His home is yards away, and during the summer when the sun is at its highest, there is some cover from the trees. His main concern is whether the panels will have a mirror-like reflecting quality that would direct bright sunlight at his home. There was a general discussion about NC statutes regarding solar panels, which concerns were addressed by Mr. Clarke. The Board asked Mr. Hill if this information could be gathered from Carolina Day School and the solar panel installer and brought back before the Board. Mr. Hill agreed these answers could be obtained and agreed to withdraw the application on behalf of Carolina Day School. HEARING (Evidentiary): The project for Brian Washburn, 30 Niagara Drive, was called forward. Mr. Joel Osgood, landscape architect, was called forward to represent the applicants. Mr. Osgood reviewed the landscape plan requested for the new home and the fence line. The fence would be located in the rear and side yard. The applicants requested a conditional use permit for a fire pit in the rear yard as well. Mr. Osgood noted the new residence would create a land disturbance of greater than twenty (20) percent triggering review by the Board of Adjustments. DELIBERATION AND DETERMINATION: Ms. Kieffer summarized the findings of fact for this matter. Dr. Brian Washburn, 30 Niagara Road, requests a granting of a conditional use permit for a fire pit in the rear and side yards and a fence located along the rear property line. Ms. Kieffer noted that the Washburn

6 property abuts the Blue Ridge Parkway and Biltmore Estate. Areas that abut these properties are permitted to have fences as a conditional use. Ms. Kieffer noted that no neighbors had objected to the proposal. Mr. Pearlman made a motion to approve the land disturbance of more than twenty (20) percent and a conditional use permit for the fence and fire pit accessory structures. Further, Mr. Pearlman moved that granting this Conditional Use Permit (a) would not materially endanger the public health or safety if located where proposed and developed according to the plans as submitted and improved, (b) met all required conditions and specifications of the Town of Biltmore Forest Zoning Ordinance, (c) would not substantially injure the value of adjoining or abutting property, and (d) would be in general conformity with the plan of development of the Town of Biltmore Forest and its environs as set forth in Sections (2) and (3) of the above ordinance. The applicant has been informed that he is to report to the Zoning Administrator within seven (7) days of completion of the project in order that the Zoning Administrator can determine that the project has been completed in accordance with plans submitted to the Town. Mr. Chandler seconded the motion. All members voted in favor and and the request was approved. HEARING (Evidentiary): Mr. Thad and Ms. Ingrid Davis, 31 Hilltop Road, were called forward to present plans for a conditional use permit for accessory structures and a variance request to allow more than one (1) accessory building on the property. Mr. Robert Griffin, architect, was present to discuss the request for the Davises. Mr. Pearlman shepherded the matter and verified for the audience that the variance was related to the request for a pool house when two (2) accessory buildings already were located on the property. The pool house would be the fourth building on the site. There are two historic buildings on the site. Mr. Pearlman noted to the applicant that the Board is limited by state statute as far as its ability to grant variances. Ms. Davis indicated that they were not aware when they purchased the property that might not be able to receive this type of variance. Mr. Clarke reviewed the legal definition of a variance:

7 When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon the showing of all of the following: 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; 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; 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. The requested variance must be consistent with the spirit and intent of the ordinance such that public safety is secured and substantial justice is achieved. Discussion followed regarding the need for the variance on the property. Ms. Davis indicated that she would like to leave the two existing cabins on the property. Mr. Kanipe entered a letter from the adjacent property owner into the record. Ms. Kieffer mentioned the adjacent property owner was concerned with the tennis court and the fence being installed. After some discussion, the matter was withdrawn by the applicant. HEARING (Evidentiary): Ms. Sara Ashworth and Mr. Polk Deters, 54 Forest Road, were called forward to present the plans for proposed exterior renovations. Mr. Derek Allen, attorney representing the property owner, was called forward to present the proposal. Mr. Allen noted the associated members of the team who were present.

8 Mr. Allen noted three items requested that required a variance application: fence along the side property line, the retaining wall in the front yard, and the parking area in the front yard. Mr. Allen presented a booklet with the submittals provided to the Board previously. Dr. Landau asked why the applicant needed a fence along the north property line (replacing the existing dilapidated fence). Mr. Allen noted that a new wooden fence will look better and replace the dilapidated fence, and there is a pool on the property that requires the fence. The wooden fence (pg. 12 in the booklet) would replace the existing chain link fence on four sides of the property. Diane Zimmerman, adjacent property owner, spoke. Mr. Allen reviewed with Ms. Zimmerman the location of the proposed fence as shown on the diagram. The wooden fence is only going on the north side; that is the only non-conforming part of the proposed fence. The remaining existing fence is inside the setback and there is no variance request for those sections. Ben Page, landscape architect representing the clients, spoke about the style of the wire fence that is the same as the fence surrounding thousands of acres of the Biltmore Estate. Ms. Zimmerman asked if that type of fence is allowed in Biltmore Forest. Mr. Clarke and Mr. Kanipe stated that it was allowed. Ms. Zimmerman reviewed the requirements she followed when constructing her fence. Mr. Page stated that the Ashworths are deeply committed to the quality of the neighborhood and the goal is invisibility of these improvements. What they are proposing is to embed these improvements in a substantial landscape scheme. The entire parking area in this revised plan is 50 feet away from the adjacent neighbor, an increase from the initial 42 feet away, and the intention is to enrich that area by a much more intense landscape plan. They are proposing a broad combination of evergreens specifically selected to provide privacy, magnolias, hollies, no hemlocks. This will be an intense landscaping scheme predicated on the invisible nature of the fence. Every attempt is being made to be sight sensitive for both the Zimmermans and the Ashworth/Deters. The Ashworths want to live here discreetly and privately. Mr. Chandler reviewed the existing fence materials and the proposed fence materials. The new fence will be compliant with the setback. Mr. Pearlman asked what Ms. Zimmerman s specific objections were to the fence proposal. Ms. Zimmerman stated that the original proposal showed that the fence would be on the property line; that proposal is off the table now. She reviewed what she had been required to do, and that this proposal shows a cheap wire fence. Her concern is that there are already trees and shrubs in the area. She says there are 5-6 large spruces there, and the

9 roots will be affected by digging, as well as a very large poplar in her yard. She thinks the fence is an insult. Mr. Page said the wire fence would be less impactful and easier to buffer. Mr. Page said that to qualify as a pool enclosure fence, it must be four (4) feet tall, and that is the height of this proposed fence. Ms. Zimmerman stated that the proposed wire fence would meet that requirement of fencing around the pool. The pool will be fenced. Mr. Kanipe was asked to review the types of fencing that are allowed in the Town. The fence on the north side would be a conditional use and that 20 section requires a variance. The other sections of the fence comply with the setback. The style and type of the fence was discussed. Mr. Goosmann asked Mr. Allen whether the requests could be segregated and voted on separately. Ms. Zimmerman asked if this matter went to the Design Review Board. Mr. Goosmann indicated that it did go to the Design Review Board as well, and that meeting was held tomorrow (Tuesday) instead of Thursday this week. DELIBERATION AND DETERMINATION: Mr. Chandler summarized the findings of fact and began reviewing the plans and variance request related to the fence in the setback on the north side of the property. The northern section of the property is a replacement for a chain link fence and allowed as a conditional use permit, but requires a variance to allow construction of the fence within the 20-foot side yard setback. The additional fence on the eastern and southern sides of the property is within the setback requirements and allowed as a conditional use because a pool is on the property. Mr. Chandler noted that a neighbor had expressed objections to the proposal and that several adjacent neighbors had signaled their approval of the project. Ms. Kieffer made a motion to approve the conditional use for replacement of the existing fence and the variance request for construction of the fence in the 20-foot side yard setback. Ms. Kieffer further moved that granting this Conditional Use Permit (a) would not materially endanger the public health or safety if located where proposed and developed according to the plans as submitted and improved, (b) met all required conditions and specifications of the Town of Biltmore Forest Zoning Ordinance, (c) would not substantially injure the value of adjoining or abutting property, and (d) would be in general conformity with the plan of development of the Town of

10 Biltmore Forest and its environs as set forth in Sections (2) and (3) of the above ordinance. The applicant has been informed that he is to report to the Zoning Administrator within seven (7) days of completion of the project in order that the Zoning Administrator can determine that the project has been completed in accordance with plans submitted to the Town. Further, Ms. Kieffer moved that granting this variance satisfies the applicable Sections of (d) and paragraphs one through four, and would not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Ordinance would, in this case, result in a practical difficulty or unnecessary hardship. She further moved the Board to find that the spirit of the ordinance would be observed, public safety and welfare secured and substantial justice done. The applicant has been informed that he/she is to report to the Zoning Administrator within seven (7) days of completion of the project in order that the Zoning Administrator can determine that the project has been completed in accordance with plans submitted to the Town. Mr. Pearlman seconded the matter and the motion was approved unanimously. HEARING (Evidentiary): Mr. Allen turned to the second and third requests, the retaining wall in front of the house and the parking area. He reviewed the plan that showed the existing driveway and the proposed driveway, and how that is situated in relation to the Zimmerman s home. Mr. Allen noted the proposal for landscaping in that area has been incorporated into the plan. He showed how the parking area would be shielded from view from the road because it is lower than street grade. The topography of the lot is utilized to push the parking away from the Zimmermans, toward the road and in front of the house. There is an existing retaining wall. This house was built in the 1940s before the development ordinance was in place. It was located off the center of the property, driven by the natural topography of the lot. The developable area of the lot is where the house is and in front of the house. With the existing wall, the proposal is to push that wall in to make a parking area in front of the house that is below the grade of the house and the grade of the roadway. We believe a hardship exists because of the ordinance, because of the location of the house and the steep grade at the back of the property, which restrict the area available for parking. It is a narrow lot and the house is oriented to the front. The proposed improvements are consistent with the

11 character of the property and of the Zimmerman s property. There is less parking area proposed and less impervious area. Particular attention was paid to drainage issues. Ms. Zimmerman addressed the Board regarding the parking in the front of the home. The design for the home included the garage being removed and reused as a family room, thereby resulting in the need for the driveway to be utilized for parking. It is true that other residents have parking in front of their homes, but every other house on Forest Road has a circular driveway. Ms. Zimmerman stated if you have a circular driveway in Biltmore Forest, you are allowed to park in front of your house. There was a discussion of how close the parking area is to the front setback. Ms. Zimmerman stated that when she walks out of her house those are parking spaces and she says that one space is in the setback. She has never had to worry before about a fence being along the property line or having to see cars parked out front. Ms. Zimmerman has worked very hard to document the history of the community and she knows that everyone agrees that we want to keep it beautiful. We do not want cars in the front yard. We do not want garage doors facing the road. Mr. Pearlman asked the question whether parking spaces were allowed in the front yard. Typically, only driveways are allowed in front and not parking. Mr. Kanipe indicated this was the reason for the variance request. Ms. Zimmerman asked whether the impervious amount was being increased due to the pool. Mr. Page stated that the impervious surface was being reduced. Mr. Pearlman believed the genie was already out of the bottle as related to the amount of parking spaces located in the front yard without circular driveways. Mr. Allen spoke about several properties in the area that have parking in front. He again stated that this house was built in 1948, built and designed with parking area in the front, retaining wall in the front; this was designed with the house inside of the setback. Mr. Allen indicated his clients were trying retroactively to apply a zoning ordinance that was passed many years after this house was designed and built. We have an existing retaining wall that we will replace with a retaining wall, to alleviate a parking issue that already exists with a neighboring property. Mr. Allen stated the applicants were getting rid of impervious area and removing driveway area. We have 500 square feet less impervious area. Mr. Allen stated the applicants were doing all of the things that the board has asked, and doing it in a way that fits on this property with what is already there. Ms. Zimmerman asked if the impervious area near the pool was being increased. The amount

12 of impervious area is being reduced, less than what is currently there. Ms. Zimmerman stated that this house was designed and built with a garage. She indicated on the plan where the old driveway went, and showed how it appeared that the impervious area was not being reduced at all. Mr. Allen remarked that parking areas in front of a house are not prohibited by Town ordinance, and stated that the ordinance is not designed to prohibit parking in the front. A question from the floor asked if it was possible to install a circular driveway on this lot. Mr. Allen stated that the topography would prohibit that, and the installation would cause more land disturbance. There are pine trees that would be lost if a circular driveway was installed. Ms. Zimmerman stated that the applicant s arborist has come to her and told her that her spruce trees had reached their maximum age and needed to be taken down, yet the trees at 54 Forest cannot be taken down for a circular driveway. Mr. Page stated that those are different trees and different issues. The arborist who inspected the property said that if any of those trees in front were disturbed that all of them would be lost. Along the Zimmerman side of the property, Ms. Zimmerman should be very concerned about the health of those spruce trees because they are in serious decline. Mr. Page referenced recent straight line storms in his area of Nashville, Tennessee that will take down unhealthy trees and noted those types of storms are more common. Dr. Landau indicated that he did not like front yard parking either but was happy to see the homeowners were willing to make effort to mitigate the change to the driveway. There was a discussion about driveway construction requirements. Ms. Zimmerman discussed how the proposed parking area leaves the residents far from their house, and a circular driveway would mean they are parking closer to the house. Mr. Page indicated that with the proposed buffering the parking area would hardly be visible. Ms. Zimmerman asked for more explanation about the type of buffering. Mrs. Kieffer referenced the landscaping plan. She asked whether the owners would be willing to provide mature landscaping. Mr. Deters, property owner, indicated his willingness to install older and mature vegetation. DELIBERATION AND DETERMINATION:

13 Mr. Chandler summarized the findings of fact and restated the proposal for parking in the front, buffered as described in a detailed landscaping plan, the replacement of an existing retaining wall, and discussion after construction of the project to ensure the buffering is sufficient. Mr. Chandler noted that a neighbor had expressed objections to the proposal and that several adjacent neighbors had signaled their approval of the project. A motion was made by Mrs. Kieffer for approval of the variance and the conditional use, for a parking area and retaining wall. Ms. Kieffer further moved that granting this Conditional Use Permit (a) would not materially endanger the public health or safety if located where proposed and developed according to the plans as submitted and improved, (b) met all required conditions and specifications of the Town of Biltmore Forest Zoning Ordinance, (c) would not substantially injure the value of adjoining or abutting property, and (d) would be in general conformity with the plan of development of the Town of Biltmore Forest and its environs as set forth in Sections (2) and (3) of the above ordinance. The applicant has been informed that he is to report to the Zoning Administrator within seven (7) days of completion of the project in order that the Zoning Administrator can determine that the project has been completed in accordance with plans submitted to the Town. Further, Ms. Kieffer moved that granting this variance satisfies the applicable Sections of (d) and paragraphs one through four, and would not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Ordinance would, in this case, result in a practical difficulty or unnecessary hardship. She further moved the Board to find that the spirit of the ordinance would be observed, public safety and welfare secured and substantial justice done. The applicant has been informed that he/she is to report to the Zoning Administrator within seven (7) days of completion of the project in order that the Zoning Administrator can determine that the project has been completed in accordance with plans submitted to the Town. Mr. Pearlman seconded the motion. The project was unanimously approved. HEARING (Evidentiary): Mr. Kanipe alerted the Board that there was no prior approval from the May 2018 meeting for the garden shed being approved as a conditional use. The entire application was tabled at that time. Mr. Kanipe recommended that time be given to any comment regarding the garden shed as

14 a conditional use. Mr. Allen reviewed the plan for the proposed garden shed, as shown on page 8 of the booklet; he noted it is 20 feet long and 13 feet wide. It will be located well within the setback area and will be heavily buffered. Ms. Zimmerman expressed no objection. It was noted the pool was previously approved. DELIBERATION AND DETERMINATION: Mr. Chandler summarized the findings of fact regarding the conditional use request for the proposed garden shed accessory building of 357 square feet to be constructed of wood siding and cedar shake shingle roof. There will be an outside shower attached to the building. The property owner will provide additional buffering if requested. No neighboring property owner has objected to this request. A motion was made by Dr. Landau for approval of the conditional use permit for the garden shed. Dr. Landau further moved that granting this Conditional Use Permit (a) would not materially endanger the public health or safety if located where proposed and developed according to the plans as submitted and improved, (b) met all required conditions and specifications of the Town of Biltmore Forest Zoning Ordinance, (c) would not substantially injure the value of adjoining or abutting property, and (d) would be in general conformity with the plan of development of the Town of Biltmore Forest and its environs as set forth in Sections (2) and (3) of the above ordinance. The applicant has been informed that he is to report to the Zoning Administrator within seven (7) days of completion of the project in order that the Zoning Administrator can determine that the project has been completed in accordance with plans submitted to the Town. The motion was seconded by Mr. Chandler. The project was unanimously approved The next meeting for the Board of Adjustments is scheduled for Monday, December 17, ATTEST: The meeting was adjourned at 6:08 p.m. Greg Goosmann Chairman Jonathan B. Kanipe Town Manager

15 George F. Goosmann, III, Mayor 355 Vanderbilt Rd Biltmore Forest, NC Fran G. Cogburn, Mayor-Pro Tem Po Box 5352 Biltmore Forest, NC E. Glenn Kelly, Commissioner P (828) F (828) Doris P. Loomis, Commissioner Jonathan B. Kanipe, Town Manager MEMORANDUM To: Board of Adjustments Members From: Jonathan Kanipe, Town Manager Re: Board of Adjustments Case Number 1 (25 Park Road) Date: December 7, 2018 Request for Conditional Use Permit for an Accessory Building Request for Variance to Encroach Upon Side and Rear Yard Setbacks The applicant is requesting a conditional use permit for an outbuilding in the rear yard. The building will be used for landscaping equipment and other outdoor storage items. The proposed outbuilding will be approximately 8 X 8 and will be surrounded by trees on three sides. Accessory buildings must meet the standards below for approval of a conditional use permit CONDITIONAL USES. (8) Accessory buildings. (a) All accessory buildings shall meet the standards of the State Building Code where applicable. (b) All accessory buildings shall be of a design compatible with the principal building on the lot and with the structures in the neighborhood. (c) An additional parking space shall be required when an accessory building is permitted for use as a dwelling by a family member. (d) Accessory buildings shall comply with the district s setback requirements. In addition, the applicant is requesting a variance to allow the outbuilding to encroach upon the side and rear yard setbacks. The proposal shows the building to be located in the right rear corner of the property. Topography, size of the lot, and location of the house are all items noted in the application as reasons for location of the building in the setbacks.

16 Zoning Application Property Identification Name Terry Horner Address 25 Park Road, Biltmore Forest, North Carolina Phone Zoning R-1 Lot Size (Acres).52 -Submission Verification Scope of Project-Roof Coverage Does the project include increasing roof coverage? No Is the proposed roof coverage greater than the permitted maximum roof coverage? No Scope of Project-Impervious Surface Does the project include increasing the impervious surface coverage? No Scope of Project-Setbacks Does any part of the project fall within the front yard? No Does any part of the project fall within the side/rear yard setback(s)s? No Scope of Project-Accessory Structures Does the project include a detached structure or building? Yes Will there be more than the approved number of An application for a conditional use permit will be required in addition to this zoning application.

17 accessory structures/buildings? No Project Description Brief Description of Project Small garden shed (8'x7') in backyard for equipment storage. Project specs sent in earlier . Estimated Cost of Project 800 Estimated Completion Date 12/1/2018 Please attach any drawings, renderings, photographs or other supporting documentation.

18 VARIANCE APPLICATION Town of Biltmore Forest Name Terry Horner Address 25 Park Road Phone Current Zoning/Use RES Requested Use RES with outbuilding within set back APPLICATION REQUIREMENTS: An application to the Board of Adjustment for a variance must be submitted to the Town of Biltmore Forest Town Manager at least 21 days prior to the meeting at which the application will be considered. A pre-application meeting with Town staff is required prior to applicaiton submittal to the Board of Adjustment. What would you like to do with your property? Erect an storage shed within the set back in the corner of my lot. Neighbor's shed appears to be in the set back so this would not be an extraordinary request. What does the ordinance require? Variance to the setback ordinance. BOARD OF ADJUSTMENT: N.C.G.S. 160A-388(D) requires that the Board of Adjustment shall vary the provisions of the Zoning Ordinance only upon a showing of ALL the items below. The Board of Adjustment must follow strict procedure and all determiniations must be decided by a concurring vote of four-fifths of the members of the Board. It is important to provide detailed supporting documentation for the Board of Adjustment to review. If necessary, additional sheets may be attached to this application. REQUIRED FINDINGS: Please provide a thorough response to each. Unnessary hardship would result from the strict application of the ordinance. Have storage all lawn/garden equipment outside. House does not have a garage. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Size of the lot, location of house and topography does not allow another location. The hardship did not result from actions taken by the applicant or the property owner. Bought a house with no garage, just a carport. The requested variance is consisent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and subtaintial justice is achieved. Yes. Would eliminate an eyesore of equipment stored outside, probably under a tarp. Shed will be a nice shed and surrounded by trees and three sides. I hereby cetify that all of the information set forth above is true and accurate to the best of my

19 knowledge. Signature Date 11/19/2018

20 Conditional Use Permit Application I hereby petition the Board of Adjustment to issue a Conditional Use Permit for: Name Terry Horner Property Address 25 Park Road Phone Type of Conditional Use Accessory Buildings -Submission Verification Description of Project Add an outbuilding/garden shed in the back yard. Home doesn't have an enclosed garage, so place for landscaping equipment storage, etc. needed. Size of shed would be approx. 8' x 8'. Explain why the project would not adversely affect the public interest of those living in the neighborhood: The next door neighbor has an even larger building than proposed garden shed. The shed will be discrete and tasteful and be located in an area where it will be surrounding by trees on three sides. Outbuildings of this kind can be found in the backyards of many homes in Biltmore Forest. In fact, my home on 51 Forest Road has two outbuildings; one a greenhouse and the other for landscaping equipment storage. I certify that the information presented by the undersigned in this application is accurate to the best of my knowledge, information and belief. Signature Date 10/5/2018

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26 George F. Goosmann, III, Mayor 355 Vanderbilt Rd Biltmore Forest, NC Fran G. Cogburn, Mayor-Pro Tem Po Box 5352 Biltmore Forest, NC E. Glenn Kelly, Commissioner P (828) F (828) Doris P. Loomis, Commissioner Jonathan B. Kanipe, Town Manager MEMORANDUM To: Board of Adjustments Members From: Jonathan Kanipe, Town Manager Re: Board of Adjustments Case Number 2 (1345 Hendersonville Road) Date: December 7, 2018 Request for Conditional Use Permit for Installation of a Solar Array System This request was heard at the November 19, 2018 Board of Adjustment meeting. The applicant was asked to table the project and provide additional information at a later meeting due to several questions from an adjacent property owner. A representative from the solar company will be present at this meeting to provide additional information and answer any other questions that may arise, and has also provided the memo attached. The applicant is requesting a Conditional Use Permit for a solar array system to be located on the roof of Carolina Day School s Upper School. The solar panels are considered an accessory structure, which allows for the application for a Conditional Use Permit. The North Carolina General Statutes place limitations on local government s regulation of solar panels, with a few exceptions. One exception is when the solar panels are located on a roof surface that slopes down towards common or public access areas. Based on this language, the solar panels may be approved via Conditional Use Permit as they are considered accessory structures by the zoning ordinance. The 100 kw solar array system will be placed on approximately 6,000 square feet of roof space on the Carolina Day School Campus. The language found in the NC General Statutes regarding solar panel regulation reads as follows: 160A-201. Limitations on regulating solar collectors. (a) Except as provided in subsection (c) of this section, no city ordinance shall prohibit, or have the effect of prohibiting, the installation of a solar collector that gathers solar radiation as a substitute for traditional energy for water heating, active space heating and cooling, passive heating, or generating electricity for a residential property, and no person shall be denied permission by a city to install a solar collector that gathers solar radiation as a substitute for traditional energy for water heating, active space heating and cooling, passive heating, or generating electricity for a residential property. As used in this section, the term "residential property" means property where the predominant use is for residential purposes. (b) This section does not prohibit an ordinance regulating the location or screening of solar collectors as described in subsection (a) of this section, provided the ordinance does not have the effect of preventing the reasonable use of a solar collector for a residential property.

27 (c) This section does not prohibit an ordinance that would prohibit the location of solar collectors as described in subsection (a) of this section that are visible by a person on the ground: (1) On the facade of a structure that faces areas open to common or public access; (2) On a roof surface that slopes downward toward the same areas open to common or public access that the facade of the structure faces; or (3) Within the area set off by a line running across the facade of the structure extending to the property boundaries on either side of the facade, and those areas of common or public access faced by the structure. (d) In any civil action arising under this section, the court may award costs and reasonable attorneys' fees to the prevailing party. ( , s. 1; , s. 1.)

28 Zoning Application Property Identification Name Brett Fuhrman Address 1345 Hendersonville Road, Asheville, North Carolina Phone Zoning R-1 Lot Size (Acres) Submission Verification Scope of Project-Roof Coverage Does the project include increasing roof coverage? No Is the proposed roof coverage greater than the permitted maximum roof coverage? No Scope of Project-Impervious Surface Does the project include increasing the impervious surface coverage? No Scope of Project-Setbacks Does any part of the project fall within the front yard? No Does any part of the project fall within the side/rear yard setback(s)s? No Scope of Project-Accessory Structures Does the project include a detached structure or building? No Will there be more than the approved number of

29 accessory structures/buildings? No Project Description Brief Description of Project Installation of a 100 kw solar array system on approximately 6,000 square feet of roof space of the Upper School on the Carolina Day School campus. Estimated Cost of Project 75,000 Estimated Completion Date 12/31/2018 Please attach any drawings, renderings, photographs or other supporting documentation.

30 Conditional Use Permit Application I hereby petition the Board of Adjustment to issue a Conditional Use Permit for: Name Brett Fuhrman Property Address 1345 Hendersonville Road Phone Type of Conditional Use Accessory Buildings -Submission Verification Description of Project Installation of a 100 kw solar array system on approximately 6,000 square feet of roof space of the Upper School on the Carolina Day School campus. Explain why the project would not adversely affect the public interest of those living in the neighborhood: This is an opportunity to generate some of our power from a clean, renewable energy source. It will also provide us with an incredible educational opportunity for our students. There will be no affect to the public or those living in the neighborhood. Lastly, there is very little visibility of the solar array from a location off of the Carolina Day School campus. I certify that the information presented by the undersigned in this application is accurate to the best of my knowledge, information and belief. Signature Date 10/29/2018

31 December 7, 2018 General Contractor License North Carolina #79280 Jonathan Kanipe Town Manager Town of Biltmore Forest Mr. Kanipe, Mr. Uritis has raised good concerns about the reflection and glare characteristics of solar modules, and particularly how that might be seen from his property. Below is the summary of a trigonometric calculations pertaining to angle of reflectivity over the course of the year from the winter to the summer solstice. Firstly, let me digress a bit into the characteristics and electric functionality of solar cells A solar cell is made of two types of semiconductors, called p-type and n-type silicon. The p-type silicon is produced by adding atoms such as boron or gallium that have one less electron in their outer energy level than does silicon. Because boron has one less electron than is required to form the bonds with the surrounding silicon atoms, an electron vacancy or hole is created. The n-type silicon is made by including atoms that have one more electron in their outer level than does silicon, such as phosphorus. Phosphorus has five electrons in its outer energy level, not four. It bonds with its silicon neighbor atoms, but one electron is not involved in bonding. Instead, it is free to move inside the silicon structure. A solar cell consists of a layer of p-type silicon placed next to a layer of n-type silicon (Fig. 1). In the n-type layer, there is an excess of electrons, and in the p-type layer, there is an excess of positively charged holes (which are vacancies due to the lack of valence electrons). Near the junction of the two layers, the electrons on one side of the junction (n-type layer) move into the holes on the other side of the junction (p-type layer). This creates an area around the junction, called the depletion zone, in which the electrons fill the holes. When all the holes are filled with electrons in the depletion zone, the p-type side of the depletion zone (where holes were initially present) now contains negatively charged ions, and the n-type side of the depletion zone (where electrons were present) now contains positively charged ions. The presence of these oppositely charged ions creates an internal electric field that prevents electrons in the n-type layer to fill holes in the p-type layer MLK, Jr Blvd, Suite #23 Chapel Hill, NC

32 General Contractor License North Carolina #79280 When sunlight strikes a solar cell, electrons in the silicon are ejected, which results in the formation of holes the vacancies left behind by the escaping electrons. If this happens in the electric field, the field will move electrons to the n-type layer and holes to the p-type layer. If you connect the n-type and p-type layers with a metallic wire, the electrons will travel from the n-type layer to the p-type layer by crossing the depletion zone and then go through the external wire back of the n-type layer, creating a flow of electricity. (1) (1) ACS, Chemistry for Life, 2018 It s also important to note that the electrons are only excited to travel by the energy generated within the visible light spectrum, between 380 to 700 nanometers. Silicon cell solar modules are designed and manufactured to absorb as much of the visible light spectrum as possible. However, some percentage of this is reflected. Some glare occurs when sunlight is reflected off of a flat, shiny surface. Solar panels are flat and somewhat shiny, but they are designed to capture light not reflect it. Photovoltaic panels actually cause less glare than standard home window glass. And research has shown that they reflect less light than snow, white concrete, and energy-efficient white rooftops. Solar modules are coated with anti-reflective materials that maximize light absorption. Plus, the panel glass is often stippled, or textured with tiny indentations, to lessen the amount of sunlight that is reflected. Some solar panels are also designed with additional light-trapping properties that help boost energy production while reducing glare. Finally, using the following input metrics, we calculated the angular range of reflectivity: Roof hip 4/12 (Helioscope data of 10 degrees is incorrect) Angle of sun incidence Summer solstice (Asheville, NC) 77 degrees Angle of incidence Winter solstice (Asheville, NC) 32 degrees Carolina Day School Solar system angle of reflectivity at winter solstice 45 degrees, right of vertical in northerly direction. Carolina Day School Solar system angle of reflectivity at summer solstice 17 degrees, left of vertical in southerly direction. In summary, without knowledge of where Mr. Uritis home is located, the calculations show that unless he or any other visible neighbors are located at or above an angle of 73 degrees from 1818 MLK, Jr Blvd, Suite #23 Chapel Hill, NC

33 General Contractor License North Carolina #79280 the horizontal plane of this Carolina Day School building, then solar reflectivity will not be a factor. Thank you, Samuel E Yates CEO 1818 MLK, Jr Blvd, Suite #23 Chapel Hill, NC

34 From: Sent: Wednesday, December 12, :29 AM To: Jonathan Kanipe Subject: Re: Board of Adjustment Meeting, 12/17 11 December 2018 Jonathan B. Kanipe, Town Manager / Zoning Administrator Town of Biltmore Forest North Carolina Dear Mr. Kanipe, Communications from Mr. Samuel E. Yates (your forwarded of 12/7) and, today, from Scott Alexander, (copy previously forwarded) both from Eagle Solar & Light, General Contractor to Carolina Day School's proposed Solar Array System installation, have satisfied my concerns regarding the angle of reflectivity of the project. Contingent upon the accuracy of their representations, I hereby withdraw any objection to Carolina Day School's application for a conditional use permit for the installation of a solar array system on the roof of the Upper School building. Please advise if this ed letter can be entered by you into the record of remarks for the December 17th meeting and have the same effect as my presence. Sincerely, Robert Uritis 2 Stuyvesant Crescent Biltmore Forest, NC file:///biltmoreforest.org/...20boa%20meeting/carolina%20day%20school/re%20board%20of%20adjustment%20meeting% txt[12/13/ :20:16 PM]

35 Annual Production Report produced by Joe Bennett 2018 Folsom Labs 3/3 July 23, 2018

36 Annual Production Report produced by Joe Bennett A B 20k AC System: 0.5% Shading: 0.2% kwh 15k 10k Inverters: 2.1% Clipping: 2.9% Wiring: 0.5% Reflection: 3.6% Soiling: 2.0% Irradiance: 0.7% 5k Mismatch: 4.4% 0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Temperature: 11.0% ç Â 2018 Folsom Labs 1/3 October 31, 2018

37 Annual Production Report produced by Joe Bennett è 2018 Folsom Labs 2/3 October 31, 2018

38 Annual Production Report produced by Joe Bennett 2018 Folsom Labs 3/3 October 31, 2018

39 George F. Goosmann, III, Mayor 355 Vanderbilt Rd Biltmore Forest, NC Fran G. Cogburn, Mayor-Pro Tem Po Box 5352 Biltmore Forest, NC E. Glenn Kelly, Commissioner P (828) F (828) Doris P. Loomis, Commissioner Jonathan B. Kanipe, Town Manager MEMORANDUM To: Board of Adjustments Members From: Jonathan Kanipe, Town Manager Re: Board of Adjustments Case Number 3 (40 Forest Road) Date: December 7, 2018 Request for Conditional Use Permit for an Accessory Structure Variance Request for Construction of Driveway/Retaining Wall in Side Yard Setback The applicants present plans for an addition to their home to include a solarium, additional decks, and a stacked garage. An extension of the driveway is requested for access to the new garage. The proposed driveway addition will extend into the side yard setback. A retaining wall is also included as part of the driveway extension which is considered an accessory structure. All accessory structures require a conditional use permit based on the Permitted Uses Table in the zoning ordinance. A variance is requested for the extension of the driveway because it will encroach upon the side yard setback. The applicants note the narrowness of the lot creates the need for the request. Section Interpretations and Definitions expressly prohibits driveways in the side yard setback unless a variance is granted by the Board. YARD, SIDE. An open, unoccupied space on the same lot with a principal building extending the full width of the lot and being situated between the building and the side lot line and extending from the rear line of the front yard to the front line of the rear yard. Notwithstanding the above definition, for the purposes of determining compliance with minimum yard setback of , the SIDE YARD shall be the entire length of each side lot line extending from the front lot line to the rear lot line and shall equally apply to lots with a principal building, lots without a principal building and vacant lots. Driveways shall not be located in the side yard setback.

40 12/11/2018 Zoning Compliance Application - Entries Status: Reviewed Entry #: 3 Date Submitted: 11/9/ :43 PM Name Steve Farrell Address Phone Parcel ID/PIN Number ZONING INFORMATION Current Zoning Lot Size R acres Maximum Roof Coverage 2,874 square feet (Up to.5 acres) Maximum Impervious Surface Coverage 27.5 percent of lot area (Up to 1 acre) Proposed Roof Coverage Total Proposed Impervious Surface Coverage Front Yard Setback Side Yard Setback 60 feet (R-1 District) 20 feet (R-1 District) Rear Yard Setback 25 feet (R-1 District) No buildings or structures may be located within these setback areas. A variance application is required if your project requires encroachment upon the setback. Description of the Proposed Project Additions and Improvements to the Morris House at 40 Forest Drive in Biltmore Forest, NC proposes to build a Solarium and a deck on the back of an existing home. The Solarium and deck will be equal in floor elevation to the existing house Main Level. Below these proposed spaces would be a two car garage in a "stacked" configuration with this floor more or less level with the existing basement slab. The proposed exterior materials would be matching to the existing exterior materials with the possible exception of the roof over the proposed solarium which is intended to be raised seam metal with a LRV of less than 25. None of the proposed addition is visible from the public way. These proposed constructions will take the place of aged decks in dire need of replacement. These proposed constructions would require the removal of two trees, one near the proposed gravel drive extension and one very near the foundations of the proposed solarium. No changes are proposed for the primary or front elevation as seen from Forest Road. Estimated Cost of Project Estimated Completion Date 1/2

41 12/11/2018 Zoning Compliance Application - Entries Applicant Signature Date Supporting Documentation (Site Plan, Drawings, Other Information) Scans(2).zip 3.13 MB 2/2

42 Conditional Use Permit Application Town of Biltmore Forest Application Fee $ Name Steve Farrell Address 40 Forest Road Phone Please select the type of conditional use you are applying for: Accessory Structures The applicant must show that the proposed use will not materially endanger public health or safety or injure value of adjoining or abutting property. In addition, the proposed use must be in general conformity with the plan of development of the town and be in harmony with scale, bulk, height, coverage, density, and character of the neighborhood. Please provide a description of the proposed project: David and Judy Morris, Owners of 40 Forest Drive, intend to build an addition to their home in the form of a Solarium and open decks on the back of their house. These spaces (in line with the main level) would be above a 2 car "stacked" garage (as compared to a traditional "side by side" garage). To gain vehicular access to the proposed garage an extension of the existing gravel driveway is required. This proposed driveway must be located within the side-yard setback. As such this proposal requires a variance from the Town of Biltmore Forest for the driveway extension within the side-yard setback. The relative narrowness of the lot (100 feet) makes alternatives to this request physically impossible and/or architecturally impractical. Attached garages are common in Biltmore Forest and will enhance the street-scape by allowing vehicles to be removed from view from the public way. The topography is such that the driveway extension will be visible from the public way. The proposed addition will be completely hidden from view from the public way. Explain why the project would not adversely affect the public interest of those living in the neighborhood: The proposed extension of the existing driveway is separated from the neighbors property by

43 approximately 8 feet and a line of existing evergreen vegetation. The garage would only be used on occasion to store the Owner's vehicles when they are out of town or in the instance of inclement weather, etc. While the public interests of those living in the neighborhood would not be adversely affected they will be positively affected by increase property values based on real estate appraisal "comps" given the increased square footage, the increase utility (presently there is no garage), and the related improvements to be made to the home. I hereby certify that all of the information set forth above is true and accurate to the best of my knowledge. Signature Date 11/19/2018

44 VARIANCE APPLICATION Town of Biltmore Forest Name Steve Farrell Address 40 Forest Road Phone Current Zoning/Use House Requested Use Single Family Residential APPLICATION REQUIREMENTS: An application to the Board of Adjustment for a variance must be submitted to the Town of Biltmore Forest Town Manager at least 21 days prior to the meeting at which the application will be considered. A pre-application meeting with Town staff is required prior to applicaiton submittal to the Board of Adjustment. What would you like to do with your property? The Owners, David and Judy Morris, intend to build a Solarium and deck on the rear of their house in Biltmore Forest. These proposed additions will be above a two car "stacked" garage (as compared to a traditional "side by side" garage). In order to gain vehicular access to the proposed garage an extension of the existing gravel driveway is required. By virtue of the relative narrowness of the lot (it is 100 feet wide) the proposed driveway extension must be located within the side-yard setback. The proposed addition is totally hidden from view from the public way as is the proposed extension of the existing driveway. By allowing this variance the community's best interest will be served by allowing the Owner's vehicles to be removed from view from the public way and by increasing property values by making much needed improvements to the home including an expanded (within the existing building footprint) and remodeled Kitchen What does the ordinance require? The ordinance requires a variance for the proposed driveway extension to be located within the side-yard setback. The balance of the proposal (Solarium and decks, etc.) are within the setbacks and are "By Right" requiring no variance or deviation from ordinance. BOARD OF ADJUSTMENT: N.C.G.S. 160A-388(D) requires that the Board of Adjustment shall vary the provisions of the Zoning Ordinance only upon a showing of ALL the items below. The Board of Adjustment must follow strict procedure and all determiniations must be decided by a concurring vote of four-fifths of the members of the Board. It is important to provide detailed supporting documentation for the Board of Adjustment to review. If necessary, additional sheets may be attached to this application. REQUIRED FINDINGS: Please provide a thorough response to each. Unnessary hardship would result from the strict application of the ordinance. The lot is relatively narrow at 100 feet wide. As such it is physically impossible and/or architecturally

45 impractical to create a garage space in any other design or configuration. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. The relative narrowness of the property makes it impossible to build a garage in any other configuration. The topography of the property are such that the proposed driveway extension will not be visible from the public way. The hardship did not result from actions taken by the applicant or the property owner. The narrowness of the lot obviously predates the Morri's ownership. The requested variance is consisent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and subtaintial justice is achieved. The requested variance is consistent with the spirit, purpose and intent of the ordinance and does not constitute a threat to public safety. Substantial justice is achieved by allowing the Morris's to enjoy and improve their property in ways that are in the best interests of the community in general and the abutters in particular. The proposed addition will increase the property value; the proposed garage will enable the owner's vehicles to be removed from view from the public way. I hereby cetify that all of the information set forth above is true and accurate to the best of my knowledge. Signature Date 11/19/2018