TOWN OF MOUNT PLEASANT, SOUTH CAROLINA BOARD OF ZONING APPEALS JANUARY 26, 2015 MINUTES

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1 TOWN OF MOUNT PLEASANT, SOUTH CAROLINA BOARD OF ZONING APPEALS JANUARY 26, 2015 MINUTES Present: Absent: Staff: Mason Smith, Chair, Charles Moore, Jon Chalfie, Saila Milja-Smyly, Sy Rosenthal, Tripp Cuttino Josh Malone. Kelly Cousino, David Pagliarini, Susan Bettelli, Lynnette Lynes Mr. Smith called the meeting to order at 6:00 p.m. and reviewed the procedures with the public. He administered the oath to those speaking. 1. Approval of Minutes Ms. Cousino stated that there was some confusion pertaining to the variance request for a curb cut on US17 North. She stated that staff, in consultation with legal counsel, have determined that in accordance with any decision of the Board is bound by the site plan submitted with the application. She suggested that this should clarify any confusion. Mr. Rosenthal moved for approval of the minutes. Ms. Milja-Smyly seconded the motion. All in favor. 2. Correspondence Ms. Cousino stated that no new correspondence was received, but the Board received the previous correspondence received for item 3A. A. Case S Mathis Ferry Road, TMS Nos and Request for first annual extension of Special Exception Use approval granted in 2013, pursuant to the provisions of Zoning Code Section (D). She stated that a request for an extension was received for the Jewish Community Center on Mathis Ferry Road. Mr. Rosenthal moved for approval of the extension request for the Jewish Community Center on Mathis Ferry Road. Mr. Chalfie seconded the motion. All in favor. 3. Unfinished Business A. Case V Shem Drive, TMS No , -075, -076, -077, -078, Request approval of variance for relief from the strict requirements of (N)(5)(a)(2)(b) to allow single-family lots to have access to a public street and not provide rear (alley-fed) access. CONTINUED FROM MEETING Ms. Cousino reviewed staff comments with the Board (see Attachment #1). Mr. Chalfie asked if he is able to participate in the decision because of his absence at the December meeting. Mr. Smith answered in the affirmative and stated that this is considered as a new hearing and therefore all present are eligible to participate. Mr. Todd Richardson, Byers Design Group, reviewed the request with the Board. He stated that because of the rear easement, it would be difficult to have rear alley-fed access.

2 Board of Zoning Appeals January 26, 2015 Page 2 of 5 Mr. Rosenthal asked when the property was purchased. Mr. Richardson answered that it is currently under contract. Mr. Rosenthal asked if the current owner purchased the property prior to the ordinance. Mr. Richardson answered that he is not sure when the property was purchased. Ms. Milja-Smyly stated that the correspondence mentions a meeting with the neighbors. Mr. Richardson answered that they held a meeting regarding the project. Mr. Moore suggested that a key criteria is how this property is unique from other properties. Mr. Richardson answered that one unique aspect is the easement on the rear of the property. He stated that while the Beach Company is willing to reduce that easement, it still makes it difficult to have rear alley access. Mr. Moore asked how this is not a self-imposed hardship. Mr. Richardson answered that reasonable realms of development is allowed in South Carolina. He stated that they are developing under the allowed density and would not increase the number of existing units. He stated that no other areas of the neighborhood have rear alley fed access and suggested that this would not be consistent with the surrounding neighborhood. Mr. Smith asked if the easement was non-existent, could the access be accomplished. Mr. Richardson answered in the affirmative. Mr. Rosenthal asked if a request could be made to Town Council to change the ordinance. Mr. Richardson answered that one reason for the ordinance was to prevent numerous accesses onto streets within the Urban Corridor. He stated that the reason for the BOZA is to consider those instances where the regulations do not fit with a particular property. Mr. Eric Draper, real estate agent, suggested that requesting a specific change for a piece of property could be considered spot zoning and is not allowed in South Carolina. Ms. Milja-Smyly stated that one goal of the Urban Corridor Overlay District (UC-OD) is to encourage redevelopment. She suggested that this is unique in that the UC-OD encourages mixed use development and this is a residential street. Mr. Draper stated that they have met with the neighborhood and have tried to address their concerns. Mr. Moore asked if the discovery of the easement is the main reason of concern for having rear alley access. Mr. Richardson answered that once the calculations were finalized, it was determined that it would be difficult to accomplish the redevelopment without a variance. Mr. Jimmy Bagwell, 207 William Street, stated that he was in attendance at the meeting on the project. He stated that reduction to ten units would be more desirable. He stated that he is in favor of the proposal as it has been amended. Mr. Mark Scruggs, 948 North Shem Drive, stated that he originally opposed the project, but is now in favor of the project because of the number of units being reduced. He stated that as proposed it would be more consistent with the surrounding neighborhood. Mr. Robert Evans, 969 North Shem Drive, stated that he is in support of the request for a variance.

3 Board of Zoning Appeals January 26, 2015 Page 3 of 5 Mr. Smith closed the public hearing. Mr. Rosenthal commended the public for their attendance and support of the project. He stated that the Board must consider the criteria outlined in the ordinance and by the state. He also stated that a self-imposed hardship should not be a consideration. Mr. Moore suggested that the applicant has demonstrated compliance of the criteria. Mr. Moore moved for approval of the request based on the findings that the applicant has met the four criteria for a variance. Mr. Cuttino seconded the motion. Mr. Cuttino suggested that the prior decision of the Board was based on density and commended the developer for amending the project. Mr. Smith called for a vote on the motion. All in favor. 4. New Business A. Case A Old Georgetown Road, TMS No (parent parcel). Appeal of the interpretation of a Zoning Official regarding the required building setback from property lines adjacent to HOA areas located in the Fulton subdivision (also known as Old Georgetown Planned Development Conservation Design District). Ms. Cousino reviewed staff comments with the Board (see Attachment #1). Mr. Rosenthal suggested that the request appears to be correcting an error on the part of the applicant. He stated that the applicant is not present to plead their case. Mr. Moore suggested that this issue be deferred to the end of the meeting in order for the applicant to be present. Mr. Moore moved to amend the agenda and discuss this item at the end of the meeting. Mr. Cuttino seconded the motion. All in favor. B. Case V Commonwealth Road, TMS No Request approval of variance to remove an historic tree, pursuant to the requirements of Zoning Code Section (C)(2). Ms. Cousino reviewed staff comments with the Board (see Attachment #1). Mr. Jeff Rose, property owner, reviewed the request with the Board. He stated that it was reviewed by an arborist, who has indicated that the tree is declining. Mr. Kevin Bunting, builder, stated that because of the rear drain, the rear setback is essentially doubled in order to allow sufficient drainage. He stated that they looked at moving the house on the lot, but it would either impact the tree or the drainage. He stated that many of the trees on the lot were in significant decline with large cavities in them. He suggested that the same would happen to the subject tree because of changing the drainage of the lot.

4 Board of Zoning Appeals January 26, 2015 Page 4 of 5 Mr. Rosenthal stated that the lot was purchased in September 2014 with the existing tree. He suggested that it was a self-imposed hardship. Mr. Richard Warner, Holmgren Street, stated that his property is adjacent to the subject property. He stated that the property had significant drainage issues for several years. Mr. Shaun Casto was sworn in by the chair. Mr. Casto stated that he is a wetland environmentalist and certified arborist. He stated that he reviewed the lot and the tree in question and the lot was densely forested and has a small crown due to the amount of surrounding trees on the lot. He stated that the construction would significantly impact the tree and cause the tree to further decline. Mr. Smith closed the public hearing. Mr. Moore asked if the HOA has been contacted. Mr. Rose answered that they have not received any correspondence. Mr. Chalfie asked if there is a determination on the life of the tree. Mr. Bunting answered that his expectation would be that it would not survive the construction. He stated that based on the health of the surrounding smaller trees, there is concern that the tree is already in significant decline. Mr. Moore asked how the diameter breast height (DBH) for trees is determined in wet areas. Mr. Casto answered that DBH is measured from the ground. He stated that having the water level above the ground level is the reason for the larger base of the tree. Mr. Cuttino asked if the water level was not above ground level, would the DBH of the tree be as significant. Mr. Casto answered in the negative. Mr. Rosenthal moved for approval of the request based on the findings outlined in the application and staff comments that the criteria for a variance has been met and should be granted. Mr. Chalfie seconded the motion. All in favor. C. Case A Old Georgetown Road, TMS No (parent parcel). Appeal of the interpretation of a Zoning Official regarding the required building setback from property lines adjacent to HOA areas located in the Fulton subdivision (also known as Old Georgetown Planned Development Conservation Design District). Mr. Smith suggested that the Board should render a decision on this request. Mr. Rosenthal asked about staff s recommendation. Ms. Cousino answered that staff s interpretation is that if the 0-foot setback is intended to apply to all lot lines, this provision would be included on a separate line in the text; instead it appears only on the line pertaining to the rear setback. Mr. Smith closed the public hearing. Ms. Milja-Smyly stated that as a matter of law, testimony cannot be accepted that contradicts an ordinance that is clear on its face.

5 Board of Zoning Appeals January 26, 2015 Page 5 of 5 Ms. Milja-Smyly moved for denial of the request based on state law that states an ordinance cannot be questioned. Mr. Cuttino seconded the motion. Mr. Smith suggested that if desired, an application for a PD amendment would have to be submitted to the Planning Commission for consideration. Mr. Chalfie suggested that if the provision for a 0-foot setback was intended to be on the next line of text as indicated in the application, it would not have been in parentheses. Mr. Smith called for a vote on the motion. All in favor. 5. Other Business A. Adoption of Bylaws Ms. Cousino stated that no changes were proposed; however, due to some confusion between a continuance and deferral, she asked if deferrals should be included in the bylaws. She stated that if desired, information on draft language could be provided to the Board at their next meeting. Mr. Moore moved for approval of the bylaws with further clarification on deferrals, withdrawals, and continuances. Mr. Rosenthal seconded the motion. All in favor. B. Election of Officers The Board voted by secret ballot for Dr. Smith as chair and Mr. Rosenthal as vice-chair. 6. Sign final orders The Board signed final orders for the following: Case S Case S Case V Case V There being no further business, the meeting adjourned at 7:34 p.m. Submitted by, L. Lynes BOZA

6 AGENDA ITEM D. 1. Staff Report Board of Zoning Appeals January 26, 2015 For reference, the Zoning Code is available online. Case V Shem Drive, TMS# , -075, -076, -077, -078, Request approval of variance for relief from the strict requirements of (N)(5)(a)(2)(b) to allow single-family lots to have access to a public street and not provide rear (alley-fed) access. RELEVANT ZONING CODE SECTIONS Section Residential Use Districts Section Urban Corridor Overlay District Section (A) (2) Powers of the Board of Zoning Appeals regarding variance requests SUBJECT PARCEL(S) Property Owner(s) TMS Number Zoning Real Estate Consultants, LLC Total Acreage BACKGROUND INFORMATION R-3, Medium Density Residential District, and UC-OD, Urban Corridor Overlay District Approximate Acreage acres Applicant Property Location Comprehensive Plan Future Land Use Map Designation Reavis-Comer Developer Shem Drive (one parcel located at the corner of Shem & Vincent Drives) Urban Corridor ADJACENT USES & ZONING North/Northwest/Northeast Shem Drive; Vincent Drive; Brookgreen Meadows (zoned R-3) North/Northeast South/Southeast South/Southwest duplexes on Vincent Drive (zoned R-3 and UC-OD) duplexes on Shem Drive (zoned R-3 and UC-OD); Brookgreen Shopping Center (zoned AB and UC-OD) Brookgreen Shopping Center (zoned AB and UC-OD) Board of Zoning Appeals Staff Report Agenda Item D. 1. Page 1 of 3

7 PREVIOUS ACTIONS ASSOCIATED WITH CURRENT REQUEST Variance request (tie votes, so variance was neither granted nor denied) Variance request (denied by a vote of 3 to 2) Variance request submitted for consideration at BoZA meeting (see Staff Comment #1 ) Variance request continued by Board (no testimony was heard) STAFF COMMENTS 1. This request was submitted for consideration at the November 2014 Board of Zoning Appeals meeting. Staff did not place the request on the agenda for action pursuant to Zoning Code Section (A) (1) which states: For a period of 12 months, the Board shall not accept an appeal application for a matter upon which it has rendered a final decision, except as provided in their rules. The application indicated a request for a variance from the same Code section as the August 2014 application, though the application was modified from the previous submittal. Because the Code provides only the Board with the authority to accept or to not accept an appeal application for a matter upon which it has rendered a final decision, staff informed the Board at its November 2014 meeting of the application. The Board decided to hear the matter at its December 2014 meeting. Board of Zoning Appeals Staff Report Agenda Item D. 1. Page 2 of 3

8 This decision was procedural in nature and has no bearing on the hearing on the merits of the application. 2. Please see applicant s submittal for justification of the approval sought. 3. The applicant requests Variance approval from the strict application of the Zoning Code Section (N)(5)(a)(2)(b), which states: In cases where single-family lots are subdivided with access to an existing public street, access for parking must be located in the rear of the lots (alley-fed). Driveways for individual dwelling units may not be located on existing public streets. 4. In April 2014, Town Council amended the UC-OD to require all new single-family (attached or detached) and duplex residential lots created on existing public streets to be accessed through a rear alley, prohibiting individual driveways on the existing street. 5. The UC-OD expands permitted uses based on the underlying zoning district. The UC-OD allows detached single-family dwellings, attached single-family dwellings (townhouses), duplex dwellings, and multi-family dwellings on the subject property, but not commercial uses since the underlying zoning (R-3) is a residential classification. 6. The requirements of the UC-OD take precedence over the requirements of the underlying R-3 zoning district, so the minimum lot size and dimensional requirements of the R-3 District do not apply. There are no minimum lot size or dimensional requirements in the UC-OD. 7. The subject property consists of five individual parcels with a duplex on each lot, for a total of ten individual dwellings. Another 20-foot wide parcel is also included in the development plan. It does not appear that this parcel is proposed to change in size or dimension, as it currently serves as an access and utility easement according to the application. 8. Five detached single-family dwellings or five duplexes (ten individual dwellings) would be allowed if redeveloped without altering the existing lot lines. 9. The applicant proposes to create 10 lots for detached single-family dwellings. This represents a reduction of two lots from the previous application. 10. The applicant would like each lot to have direct access to Shem Drive instead of providing a rear alley access as required under the UC-OD. 11. The application indicates that a 22-foot public right-of-way is required at the rear of the lots to provide access; however, this requirement only applies when the lots do not have frontage on another street. Required in this instance is an Alley, defined by Zoning Code Section as an improved private right-of-way used primarily as a secondary means of access to the side or rear of properties whose principal frontage is on another street. There are no dimensional standards associated with alleys, and they could provide for one-way or two-way vehicular movement states [the Board has the following powers] To hear and decide appeals for variance from the requirements of the zoning ordinance when strict application of the provisions of the ordinance would result in unnecessary hardship. A variance may be granted in an individual case of unnecessary hardship, if the Board makes and explains, in writing the following findings: (a) There are extraordinary and exceptional circumstances pertaining to the particular piece of property; (b) These conditions do not generally apply to other properties in the vicinity; (c) Because of these conditions, the application of the ordinance to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property; (d) Authorization of a variance will not be of substantial detriment to adjacent property or to the public good, and the character of the district will not be harmed by the granting of the variance. Board of Zoning Appeals Staff Report Agenda Item D. 1. Page 3 of 3

9 AGENDA ITEM E. 1 Staff Report Board of Zoning Appeals January 26, 2015 For reference, the Zoning Code is available online. Case A Old Georgetown Road, TMS No (parent parcel). Appeal of the interpretation of a Zoning Official regarding the required building setback from property lines adjacent to HOA areas located in the Fulton subdivision (also known as Old Georgetown Planned Development Conservation Design District). RELEVANT ZONING CODE SECTIONS Section (H) PD-CD, Planned Development - Conservation Design District Section (A) (1) Powers of the Board of Zoning Appeals regarding interpretation of a Zoning Official SUBJECT PARCEL(S) Property Owner(s) TMS Number Zoning Old Georgetown LLC PD-Sweetgrass Basket Overlay District Approximate Acreage 9.4 Acres BACKGROUND INFORMATION Applicant Property Location Comprehensive Plan Future Land Use Map Designation Old Georgetown LLC Old Georgetown Rd. Proposed Fulton Subdivision Community Conservation ADJACENT USES & ZONING North South East West County- Single Family Homes on Frank Bonneau Rd. County- Single Family Homes on Children Rd. County- Vacant lot Old Georgetown Rd. County-Single Family Homes and Boars Nest Restaurant Board of Zoning Appeals Staff Report Agenda Item E. 1 Page 1 of 2

10 STAFF COMMENTS 1. Please see applicant s submittal for justification of the appeal. 2. On 10 September 2013, Town Council approved the annexation of the above-referenced parcel and conferred PD-CD, Planned Development Conservation Design District, zoning upon the property as requested by the applicant. 3. Permitted uses and development standards for the Fulton (formerly known as Old Georgetown) PD- CD District are enumerated in the PD document submitted by the applicant and approved by Town Council. This document was provided to the Board of Zoning Appeals as an exhibit to the applicant s appeal application. 4. The section in question is III. General Guidelines, 1. Setback Criteria (page 4 of the PD document). 5. Planning & Development Department staff interprets that only the rear setback can be 0 feet when adjacent to HOA property (alleys, open space, etc.) or rear yard drainage. 6. Applicant asserts that the 0 foot setback applies to any property line adjacent to HOA property or rear yard drainage. Board of Zoning Appeals Staff Report Agenda Item E. 1 Page 2 of 2

11 AGENDA ITEM E.2 Staff Report Board of Zoning Appeals January 26, 2015 For reference, the Zoning Code is available online. V Commonwealth Road, TMS No Request approval of variance to remove an historic tree, pursuant to the requirements of Zoning Code Section (C)(2). RELEVANT ZONING CODE SECTIONS Section (C)(2) Provisions for Tree Removal Section (A) (2) Powers of the Board of Zoning Appeals regarding variance requests SUBJECT PARCEL(S) Property Owner(s) TMS Number Zoning Approximate Acreage Jeff and Linda Rose RR, Rural Residential District 0.51 acres BACKGROUND INFORMATION Applicant Property Location Comprehensive Plan Future Land Use Map Designation Jeff Rose 267 Commonwealth Rd. Low Density Neighborhood ADJACENT USES & ZONING North South East West Commonwealth Road Single Family Homes (zoned Rural Residential) Single Family Home (zoned Rural Residential) Single Family Home (zoned Rural Residential) Single Family Home (zoned Rural Residential) Board of Zoning Appeals Staff Report Agenda Item E.2 Page 1 of 3

12 Board of Zoning Appeals Staff Report Agenda Item E.2 Page 2 of 3

13 STAFF COMMENTS 1. Please see applicant s submittal for justification of the approval sought. 2. The applicant requests variance approval to remove an historic tree, pursuant to the requirements of Zoning Code Section (C)(2). 3. Section (C) On individually platted, single-family residential lots, the following standards shall apply: (1) Removal of a historic tree(s) on lots approved and recorded before April 11, 2000: (a) If the tree is located within required yard areas or setbacks, it shall be protected, with removal subject to variance approval by the Board of Zoning Appeals. (b) If the tree is located within the building envelope of the lot (outside of the required yard area), it may be removed with approval of the Zoning Administrator, or his or her designee, provided that: 1. Replacement inches will be twice the replacement required in the Tree Replacement Table in division (A) above. 2. Replacement trees shall be from the following species: American Beech, Overcup Oak, Bald Cypress, Southern Magnolia, Eastern Red Cedar, Southern Red Oak, Live Oak, Swamp Chestnut Oak, Nuttall Oak (2) Removal of historic tree(s) on lots approved and recorded after April 11, 2000, shall require variance approval from the Board of Zoning Appeals. 5. The property was purchased by Jeff and Linda Rose on 09/23/ The plat was recorded in Book EK Pages on March 21, Board of Zoning Appeals Staff Report Agenda Item E.2 Page 3 of 3